Volume 15 — Johnson's New York Reports

THIS was an action of assumpsit, on a promissory note, tried before the Chief Justice, at the last Albany circuit, The note was in the following words : “ Ninety days after date, I promise to pay S. fy J. L. Rathbon, or order, three hundred and two dollars, value received, for the Susquehannah Cotton and Woollen Manufacturing Company. Albany, June 24th, 1815.

THIS was an action of assumpsit, to the declaration in which the defendants pleaded non assumpsit, and the statute of limitations, and the plaintiff replied, taking issue on the latter plea. The suit was commenced in August term, 1814, and the parties, without going to trial, made a case for the . . .i . opinion of the court, which was submitted without argumenu.

<p>IN error, on a bill of exceptions, to the court of common 1 - t 5 pleas of the county of Ontario.</p> <p>The plaintiff in error, brought an action of debt in the court below, against the defendant in error, and declared generally, for money borrowed by the defendant of the plaintiff, and for money had and received by the defendant to the plaintiff’s use. ' The defendant pleaded nil debet; A 1 and. at the trial, m May term, 1817, m the court below, ' y the plaintiff’s counsel stated that the action was founded on the second section of the act, entitled, “ an act to prevent excessive and deceitful gaming,” passed the 21st of March, 1801, and offered to prove, that the plaintiff, at one time or sitting, by playing at cards, lost to the defendant the sum of 170 dollars, and paid the same to him, and that the plaintiff, 1 r _ . . within three months thereafter, sued out a writ of copias ad respondendum, and commenced this action, to recover hack the money which he had lost. This evidence was objected to, on the part of the defendant, on the ground that it was inadmissible, under the plaintiff’s declaration, which contained no reference to the statute, and the court being of this opinion, nonsuited the plaintiff.</p> <p>The bill of exceptions was submitted without argument.</p>

THIS was an action of assumpsit, to recover the amount - bill of exchange drawn by William Napier upon the defendant, in favour of James Stewart, and by him en- ? j dorsed to the plaintiffs. The cause was tried before his . Honour, the vhiei Justice, at the New-Yorfc Sittings, in ° »fipTXl^ loib.

THIS was an action oí* asáumpsit, for the non-delivery of a t The schooner Seaman, in Jdnudfy, 1813, during the late war between this country and Great Britain, Was lying in the port of Richmond, bound for New-York, and 13 hogsheads of tobacco were shipped on board of her by the plairibffs? agent.

THIS was an action of dower, for the recovery of dower in certain lands in the town of Chatham, in Columbia county. The cause was tried before Mr. J. Van Ness, at the Columbia circuit, in September, 1816.

THIS was an action of assumpsit, on a contract for the e - * transportation of goods, on board thé ship Indian Hunter, from Liverpool to New-Orleans.

This was an action of trover for a box of tea, brought by the defendants in error against the plaintiff in error.

THIS was an action of assumpsit, on a bill of exchange, drawn by Herman Ruggles, in favour of Oliver Ruggles, or order, on Noyes Darling, as agent of the defendants, dated 26th of April, 1814, at sixty days after date, for 4,500 dollars. The bill was accepted by Darling, as agent, and was endorsed by Oliver Ruggles. The plaintiff was the holder of the bill.

This was an action of assumpsit, on the copias in which the defendant, Joshua Waddington, was taken. The cause was tried before Mr, J. Van Ness, at the New-York sittings, in November, 1816.

IN error, on certiorari to a justice’s court. The defendant in error brought an action in the court below, against the plaintiffs in error. The summons was returnable at one o’clock in the afternoon, when the plaintiff below, and the justice attended, and having waited until about 3 o’clock, thejustice called the parties; the plaintiff answered, but the defendants did not appear.

IN error, on certiorari to a justice’s court. The defendant in error brought an action of trespass in the court below, against the plaintiff in error, for taking his horse out of his pasture, and riding him. From the evidence there was some reason to suppose that the horse was taken by mistake, and not wilfully, the defendant having had permission from a person, who had a horse in the same pasture, to take his horse.

THIS was an action of ejectment brought to recover part of lot No. 2, in the subdivision of lot No. 8, in the thirteenth general allotment of the Kayaderosseras patent, being about 119 acres of land, situate in the town of Clinton, in the county of Saratoga. The cause was tried at the Saratoga circuit, in September, 1816.

IN error on certiorari to a justice’s court. The defendant in error brought an action in the court he-low against the plaintiff in error, and declared on a note or memorandum given for 24 dollars, on the sale of certain mortgaged premises, pursuant to a notice under the statute.

THIS was an action on the case for debauching the daughter and servant of the plaintiff, per quad servilium amisit. The declaration contained three counts.

THIS was an action on the case for a false return to a Jft. fa., brought against -the defendant, late sheriff of the city The cause was tried before Mr. and county of New-York. J. Platt, at the New-York sittings, in December, 1815.

THIS was an action of debt brought against the defendant, sheriff of the county of Oneida, for the escape of one Azor Brown. The cause was tried before his Honour the Chief _ . 7 . . T Justice, at the Onieda circuit, m June, IS 17.

<p>THIS was an action of assumpsit for money had and received. The cause wds tried before Mr. J. Yates, at the New- York sittings, in November, 1816.</p> <p>It was proved, on the part of the plaintiff, that in January, 1813, Stephen Coles, deceased, and Willet Coles, the defendant, sold, and conveyed to one' Meinell, two lots of ground in Ferry-street, in Nevi-Yorh, for 9,000 dollars, of which sum the purchaser payed 7,000 dollars into the hands of the defendant, and with the remaining 2,000 dollars paid off a mortgage on the premises which had been given for the individual benefit of the defendant. The plaintiff, also, gave in evidence the following letter from the defendant to the intestate, dated, New-YorJc, December, 29th, 1812.</p> <p>Dear Father. Brother Stephen has returned and in- forms me that he left the deed that you gave him for the . , , house and still-house, with you : to make the conveyance lawful, it is absolutely necessary that the deed should be recorded here. I have no other object in wishing the property conveyed to Stephen, than to secure you a comfortaible maintenance. The failure of H. F. may put it out of my power to do so in any other way; please, therefore, to send the deed by the first opportunity. I have had an application to buy the still-house, for 9,000 dollars; if you think it best, I will do so, and put the money in bank stock; you may rely on my wish to see you provided for, let whatever may happen to your affectionate, hut unfortunate, son, &c. P. S. I shall convey my part to Stephen for your use also. Don’t forget to send the deed.”</p> <p>A partnership bad existed between the intestate" and defendant, in relation to the business of the still-house; and business had been carried on under the partnership name to about the time of the salo, although it appeared that the, defendant had, long before, been requested by the intestate to give notice of dissolution, but which he had, in fact, never done.</p> <p>The counsel for the defendant moved for a nonsuit on the ground that this was a partnership transaction, and required the investigation of partnership accounts. The motion was overruled by the judge, and further evidence was produced on the part of the defendant, to show the existence of a partnership down to the time of sale. The judge charged the jury, that in his opinion, the letter from the defendant to the intestate was sufficient ground for the jury to find a verdict for the plaintiff for the half of the 9,000 dollors, with interest; and a verdict was found accordingly.</p> <p>The defendant moved to set aside the verdict, and for a new trial.</p>

s • THIS was an action of assumpsit on two promissory notes, made by Walter F. Osgood, and endorsed by Maria Osgood, ■ against the defendants, as her representatives, who were all either her children, or the husbands of such of her daughters as were married. The defendants, De Witt Clinton and Maria his wife, John L. Morton and Sarah his wife, and Hannah Clinton, pleaded riens per discent, and the plaintiffs •took judgments of assets, quando acciderint.

THIS was an action of ejectment for lands in the town of Walkill, in Orange county. The cause was tried before his honour the chief justice, at the Orange circuit, in September, 1815. The special verdict stated, that on the first of January, 1771, William Alexander, commonly called Lord Stirling, was seized of a certain tract of land of about 3,000 acres, in the county of Ulster, now in Orange county, of which tract the premises in question are part.

THIS was an action of trover, tried before Mr. J. Yates, at the New-York sittings, in November, 1816. The agent of the plaintiffs purchased a large quantity of German linens at Hamburg, on the account, and with the hinds °h the plaintiffs, with which he proceeded from Ham-with intention to transport them to Copenhagen, there to be shipped for the United States.

<p>A writ of inqutry of dama» ges cannot bo Sunday ¡ nor can the jury who have be<?n impannelcd on Saturday, and heard the allegations and P¡£tíes before nHvf assess01 the damages and deliver their verdict to the sheriff on Sunday.</p> <p>If the plaintiff has any ob’ections to any of the j’urors, he must make them openly, and if he state them privately to the sheriff, who thereupon discharges a iuror, the inquisition will be set aside»</p>

IN ERROR, on certiorari, to a justice’s court. The action was trespass, for taking and selling a yoke of oxen, brought by Norton against Mersereau.

RICE moved for an attachment against the sheriff for not bringing in the body of the defendant in this cause. The rule on the sheriff for that purpose was served on him the 29th of October, before the expiration of twenty days after the term. The defendant treated the rule as a nullity.

THIS cause was tried at the late Ulster circuit. At the trial, the defendant’s counsel took exceptions to the opinion of the judge in his charge to the jury. By agreement between the counsel of both parties, the bill of exceptions was to be prepared after the circuit, and sealed by the judge, at the next term, when th.e same should be argued.

<p>Affidavit of ged¡tor™fanCíhsolventdeb,OT-</p>

IN ERROR, on certiorari to a justice’s court. This was an action on the case brought by the defendant in error against the plaintiff in error, for a disturbance of his right of ferry, and his use and enjoyment thereof, and hindering persons from crossing at the same. It appeared that the defendant below had endeavoured to divert travellers from the ferry of the plaintiff, representing it not to be as good as another near it, and had, on many occasions, succeeded.

THIS was an action of trover for a gold watch. The cause was tried before Mr. J. Platt, at the Columbia circuit, in September, 1817.

THIS was an action of trespass, for breaking and entering the store of the plaintiff, and for taking and carrying away his goods, brought against the defendant, Lockwood, sheriff of the county of Orange, and several other persons. .

<p>Where the possession of a farm, and some other matters in controversy between the parties, were submitted to arbitration, and a sum of money and possession of the farm were awarded to the defendant, who brought an action of ejectment to recover the possession: and it was then agreed that the plaintiff should give up possession to the defendant, and that the defendant should relinquish his elaimunderthe award, and pay the plaintiff' 150 dollars, it was held, in an action on a note given to secure part of that sum, that the note was given on a good consideration, and was valid, the subsequent settlement not being affected by the previous award, and the. parties having authority to vary the rights acquired under it.</p>

IN ERROR, on certiorari to a justice's court. It appeared that one of the questions raised on the return to the certiorari, related to the credibility, as well as admissibility, of a witness sworn on the part of the defendant below, the plaintiff in error; but it is unnecessary to state the facts in relation to this point. The justice, in rendering judgment for the plaintiff below, included, in the costs, fees for swearing both the defendant’s and plaintiff’s witnesses.

IN ERROR, on certiorari to a justice’s court. The proceedings in the court below were commenced by the defendant in error against the plaintiff in error, by attachment. Dudley, the defendant below, at the time when the attachment was issued, was an inhabitant of the county of Schoharie, and the justice, who issued the process, was a magistrate in Schenectady county, and issued the attachment against the property, while it was passing through that county.

THIS was an action of trespass, for cutting timber on certain land in the town of Phillipstown, in the county of Putnam. The cause was tried at the Putnam circuit, in September, 1817. The plaintiffs were two of the heirs at law of their father, Gould John Sellick, who died about three years before the trial, leaving eight other children, from two of whom the plaintiffs had deeds for their undivided part of their father’s estate.

<p>In an agreement for the sale and conveyance of land, the vento convey the was to be'surincum’braneesf by the 1st of January. The land was not surveyed in time, and the vendee declared that he would take no advantage, on account of the vendor’s not conveying on the precise day mentioned in the agreement. The land was, some months afterwards, surveyed, but the vendee refused to accept a conveyance, because it was incumbered, which was the fact. It was held that the vendee, by enlarging the time, did not waive his right to recover a sum which was fixed and liquidated by the agreement, as the amount of damages to be paid by the party failing in performance, even admitting that his consent to extend the time amounted to an agreement; for such subsequent agreement, by paroi, was void by the statute of frauds, and could not alter, revoke, or modify the previous valid contract.</p>

IN ERROR, to the court of common pleas of the county of Madison. The defendant in error, who was the plaintiff in the court below, brought an action on the case, in the nature of an aótion of waste, against the plaintiff in error, the defendant in the court below.

IN ERROR, on certiorari to a justice’s court. This was an action of trover brought by the defendant in error against the plaintiff in error, for taking a cow.

IN ERROR, on certiorari to a justice’s court. The plaintiffs in error brought an action on the case, in the court below, against the defendants in error, for the maintenance of the bastard child of one A. G. of which the defendant, Whitman, was the putative father.

THIS was an action of assumpsit. The count in the declaration on which the plaintiff claimed to recover, stated, that the defendant was a taylor in the village of Utica, andón the 28th of October, 1814, in consideration that the plaintiff, at his request, had delivered him a large quantity of broadcloth and kerseymere, to be made up into a coat, pantaloons, and vest, for a large reward, he, the defendant, undertook to make and deliver them safe to the plaintiff, at SackePs…

THIS was an action on the case for obstructing the waters of the Cincinnatus Creek, in their ancient course across the defendant’s land, to the plaintiff’s grist and saw mills, erected on his land lower down the stream, whereby the waters of the creek were withheld from the plaintifi’s mills, and the plaintiff deprived of the profits of his mills. The cause was tried before Mr. Ch. J. Thompson, at the Oneida circuit, in June, 1817.

IN ERROR, on certiorari to a justice’s court. The defendant in error brought an action of trespass in the court below against the plaintiff ih error, for damage done to his grain by the sheep of the latter. The plaintiff below proved the trespass and damages, and the defendant below offered proof to show, that the sheep had been dis-trained and impounded by the plaintiff; the evidence being objected to, was excluded by the justice. A verdict was found for the plaintiff below.

THIS cause, (see vol. 13. p. 561—590.) having been carried by writ of error to the supreme court of the United States, was there affirmed, with damages and costs. The judgment of affirmance was rendered on the 27th of February last, and the mandate of the supreme court of the United States to this court was presented and filed the first day of the term.

THIS was an action of assumpsit, for work and labour, and materials found, and goods sold and delivered, and the declaration also contained the usual money counts.

This was an action of trespass for an assault and battery, brought by the defendants in error against the plaintiffs in error, to which the defendants pleaded the general issue jointly, and the cause was tried at the June term, 1817, of the court below. At the trial, after the plaintifís below had gone through with their evidence, the counsel for the defendants applied to thecourtfor the discharge of JohnG.

IN ERROR; on certiorari to a justice’s court. The defendant in error brought an action in the court below, against the plaintiff in error, for work and labour, and upon an order dráwn by the defendant below, in favour of the plaintiff below, upon Ann C. Hoar, dated March 22d, 1817, for 15 dollars.

THIS was an action of ejectment brought to recover part °f l°t No. 86, in the forriier township of Milton, now Geneva”> the county of Cayuga. The cause was tried before, Mr. J. Spencer, at the Cayuga circuit, in June, 1817. . The plaintiff produced in evidence an exemplification of “ * letters patent, dated the 13th of September, 1790, to Moses Minner, for lot No. 86, in the township of Milton, in Montgomery county, excepting 100 acres out of the south-east corner of the lot.

IN ERROR, on certiorari to a justice’s court. The defendant in error brought two actions in the court below, against the plaintiff in error, forgoodssold and delivered, &c. The defendant pleaded, and also produced an account as a set-off.

THIS was an action of assumpsit on two promissory notes. The defendant pleaded non assumpsit, with notice of set-off, for goods sold, work and labour, money had and received, &c. The cause was tried at the Onondaga circuit, before Mr. J. Spencer.

IN ERROR, on certiorari to a justice’s court. The return, which was very obscure, to the certiorari in this 7 J ' case, stated, that the ground of the action of the defendant in 7 7 ° , . error, was a bill of costs for resisting a motion for judgment, . , .... . . ,, Í n as m case of nonsuit, m this court, in the case ot Booge v. Warner, taxed by the recorder of Hudson at 27 dollars and 6 cents.

THIS was an actioh of ejectment for the recovery of lands in the town of Wallkill, in the county of Orange. The cause was tried before Mr. J. Platt, at the Orange circuit, ¡n September, 1816. The lessors of the plaintiff claimed as the children and heirs at ]aw of William Brown, deceased, who was the son of John Brown, deceased, and produced a deed of quit-claim, in fee, from John Brown to William Brown, for the premises in question, dated the 13th of February, 1801.

<p>IN ERROR, on certiorari to a justice’s court.</p> <p>This was an action of assumpsit for money paid, laid out and expended, brought by the defendant in error against the P^o^ff in error. It appeared that there had been an ac-^on °f ejectment pending in this court between the parties, w^ch> by consent, was referred to surveyors, it being a mere question of boundary. On the survey, one Tenax attended as a chainbearer, who sued the plaintiff below for bis services, and recovered between eight and nine dollars, f°r the one half of which this action was brought against the defendant below. The expenses were proved to have been necessarJ and proper, and that the plaintiff below having succeeded in the ejectment suit, the costs were taxed, but J 7 . these expenses were struck out of the bill by the taxing officer, and the bill was paid by the defendant below. There was no positive proof that the survey was to be made at the joint expense of the parties, and Tenax swore that he considered the plaintiff below as his employer. One of the referees testified that he inferred from the acts of the parties on ^le survey, that each was to bear an equal share of the expenses, but he did not recollect to have heard from either 1 . any explicit declaration on the subject; that on the survey the referees were boarded part of the time by the plaintiff, and part by the defendant. The justice gave judgment for the plaintiff below.</p>

IN ERROR, on certiorari to a justice’s court. This was an action brought by the defendant in error to recover from the plaintiff in error a balance due to him on the sale of a mare. The defence set up was payment made by the note of one Crawford ; to repel which, the ■plaintiff below offered to prove the insolvency of Crawford, by what one Reuben Smith had said.

THIS was an action of assumpsit, on a promissory note, . x v * dated March 6th, 1816, payable in six months to John Fitch, or bearer, and executed by the defendants. The cause was tried before Mr. J. Platt, at the Oneida circuit.

IN ERROR, on certiorari to a justice’s court. The defendants in error brought an action in the court belowagainst the plaintiff in error, forpart of the price of a horse sold by them to him.

<p>Where proCess is issued out of a justtce’s court against an atseiior^ 0Pandn the ternrof the hedían attorseior°rthe°de" pleadhís pr¡v£ lege ¡n abatement, although the process ble after the end of the term.</p> <p>A plea in abatement in a justice’s court need not be verified by affidavit</p>

IN ERROR, on 'certiorari to a justice’s court. The. defendant in error brought an action of debt in the court below against the plaintiff in error, on a judgment rendered by another justice in favour of the former against the latter.

IN ERROR, on certiorari to a justice’s court. The plaintiff in error brought an action in the court below against the defendant in error, and on the return of the process, one Barnes appeared as attorney for the plaintiff The defendant objected to him, and demanded his authority ; on which Barnes produced a written power purporting to be signed and sealed by the plaintiff, and to which the attorney was the only subscribing witness.

THIS was an action of assumpsit. The declaration con-tamed several counts: 1, On a promissory note, dated the 21st June, 1810, made by the defendant, and payable to the plaintiff, or order, on the 1st of August next, thereafter, for 1525 dollars : 2.

IN' ERROR, to the court of common pleas of the county 0f Washington. ° The defendant in érror brought an action of trespass on . . . r the case, in the court below against the plaintiff in error.

IN ERROR, to the court of common pleas of the county . 01 Orange* The defendant in error, who was sheriff of the county of Orange, brought an action in the court below, against the plaintiff in error, as surety in a bond for the gaol liberties.

THIS was an action of ejectment which was tried before Mr. J. Van Ness, at the Columbia circuit, in 1816.

<p>THIS was an action of ejectment brought to recover part. of lot No. 16, in the town of Junius, in the comity of Seneca. Issue was joined in February, 1816 ; and the defendant, aficrwar<ls, in August term, 1816, pleaded puis darrein continuance, that the plaintiff ought not further to have and mainacti°n on the demise of David Tcwahangarahkan, one of the lessors, because David had, on the 25th of July, 1816, by his indenture duly approved by the surveyor-generai, granted, bargained, sold, and released the premises in question, and all action and actions in relation thereto, to the defendant and his heirs. The cause was tried before -^iv. J* Spencer, at the Seneca circuit, in June, 1817.</p> <p>Letters patent for lots No. 4 and 16, in the town of Junius, 1 7 7 were, on the 29th of January, 1791, issued to Honyost Tewa- ’ . ’V hangarahkan, an Oneida Indian, and a lieutenant in the line of this state, who was killed in 1779, for his services in the revolutionary war. Honyost left two sons, Honyost, and the Jessor, David, who is an Oneida indian, residing with the Oneida tribe. On the 31st oí December, 1791, Elizabeth an<* Honyost, the widow, and one of the sons and heirs of Honyost, the patentee, by deed, without authority from the legislature, or the approbation of the surveyor-general, conveyed the two lots No. 4 and 16, in consideration of ten pounds, to Cornelius A. Van Slyck, who, in December, 1792, conveyed to J. Atkinson, who, afterwards, conveyed the same to James Fisk. Fisk, in March, 1808, conveyed the Prem'ses iu question to Cass, who, on the 9 th of July, 1811, conveyed the same to the defendant. On the 1st of August, J __ 1792, one Honyost Tewahangarahkan, a Cayuga Indian, who was admitted to have no interest, conveyed the two lots to P- Campbell, who, in October, 1797, conveyed the same to H. Matthews. The defendant, and those under whom he claims' had been in possession of the premises, claiming title, ¿¡nee the year 1 303. By indenture, dated May 26th, 1809llonyost and David, the sons and heirs of the patentee, in consideration of 2,000 dollars, granted the two lots, Nos. 4 and 16, to the lessor, Gillet, in fee. On this deed was endorsed the certificate of the surveyor general, that it appeared to him that it had been fairly obtained ; that the consideration was competent, and had been sufficiently secured, in consequence of which he endorsed his approbation. By indenture, dated the 25th of July, 1816, the lessor, David, re* citing that he claimed an undivided moiety in lot No. 16. in consideration of 80 dollars, released to the defendant, and several other persons, being in possession, and their heirs, all his interest therein, and also released all actions and demands in relation to the same. This was the release mentioned in the defendant’s plea, puis darrein continuance. The surveyor general’s approbation was endorsed in these words. “ Surveyor generaPs office, Albany, July 27th, 1816. I approve of the within deed. Simeon De Witt, surveyor gene-raid’ To show that the consideration mentioned in the release was incompetent, it was proved, on the part of the plaintiff, that the lot, at the time of the execution of it, was worth 12,000 dollars.</p> <p>A verdict was taken, by consent, for the plaintiff, subject to the opinion of the court, on a case" containing the facts above stated.</p>

THIS was an action on the case against the defendant, late sheriff of the county of Seneca, for a false return on a writ of fieri facias issued out of this court, at the suit of the plaintiff against W. I. Seeley. The cause was tried before Mr. J. Spencer, at the circuit in Cayuga county, where the venue was laid, in June, 1817. The plaintiff recovered a judgment against W, I. Seeley for 3,988 dollars of debt, and 14 dollars and 4'3 cents damages and costs.

THIS was an action of assumpsit brought by the plaintiffs, as endorsees of a promissory note, dated May 23d, 1815, for 500 dollars, payable in six months, to Moses Warren, the defendant, made by Gilchrist and Warren, and endorsed by the de- * %> * v fendant, Moses Warren, and by Benjamin Smith.

THIS was an action of debt on a bond for the performance of the covenants contained in articles of agreement; and the only question in dispute was, whether the defendants were to be charged with the sum of 5,000 dollars, mentioned in the receipt of the 29th of October, 1814, given by the defendants, Smith and Pardee, to Nathaniel Allen, the agent of the plaintiff.

THIS was an action of ejectment, for a farm in the manor of Livingston, and was tried at the Columbia circuit, where a verdict was taken for the plaintiff for part of the farm claimed, subject to the opinion of the court, on a case containing the following facts: Robert Livingston, the proprietor of the manor, on the 15th of May, 1784, executed a lease to Johannes Drom and his wife, for their joint lives, for the farm in question, containing 150 acres.

IN ERROR, to the court of common pleas of the county of Tompkins. The plaintiff in error brought an action of assumpsit in the court below, against the defendant in error, for boarding, lodging, nursing, and attending one Washburn, at the special instance and request of the defendant.

IN ERROR on certiorari to the court of general sessions of the peace of Columbia county. Two justices of the peace for the city of Hudson made an order for the removal of Sarah, a negro woman slave, from the city of Hudson to the town of Claverack, from which order the overseers of the poor of Claverack appealed to J „ s 1 the court of sessions of Columbia county, which affirmed he order.

This was an action of assumpsit, on a promissory note for 305 dollars and 35 cents, payable in ninety days,, drawn by Thomas Shieffelin, in favour of the defendant, by whom it was endorsed to Josiah Brown, Jun. and by him to the plaintiff. The cause was tried before Mr. J. Van Ness, at the New-York sittings, in December, 1816.

THIS was an action of ejectment, brought to recover lands J . ° in Jerusalem, in township No. 7, in the second range of townships in the county of Ontario. The cause was tried before Mr. J. Spencer, at the Ontario circuit, in July, 1817.

THIS was an action of assumpsit, for work done and materials furnished by the plaintiffs, in repairing the brig Recompense, against the defendants, as owners of the brig. The cause was tried before Mr. J. Spencer, at the New-York sittings, in April, 1817. The brig was repaired by the plaintiffs, who were ship-carpenters in the city of New-York, during the month oí September, 1815.

IN ERROR, on certiorari to a justice’s court. The plaintiff in error brought an action of trespass in the court below, against the defendant in error, for cutting down his trees. The defendant appeared personally,pleaded the general issue, demanded a jury, and moved for an adjournment, which was granted; when the venire was returned, and the justice was about to impanel the jury, the defendant by his counsel offered a formal plea of title, and tendered security.

IN ERROR, on certiorari to the court of general sessions of the peace of the county of Ulster.

THIS was an action of ejectment brought to recover a lot of land in Orange street, in the city of JVezo- York, m the occupation of the defendant, Thompson.

STORKS moved for leave to eater a nolle prosequi as to . otie count, on an affidavit stating that this was a writ of error to the Oneida court of common pleas ; that the declaration contained two counts, one in trover, and the other in trespass, for talcing a horse; that the verdict was general, and that the evidence applied to either count; that an applicatian had been made to the court below to amend the ver¿[ict, by applying it to one count, and for leave to enter a > J…

IN partition, under the act for the partition of lands, passed April 12th, 1813. sess. 36. c. 100.(1 M. R. L. 507.) The defendant pleaded non tenent insimul, and the cause was tried before Mr. J. Van Mess, at the Mew-York sittings in June, 1817. j

THIS was an action of assumpsit. The declaration contained counts for the use and occupation of a dwelling-house by the testator; for money had and received, &c. by the testator, and for rent on a paroi demise by the plaintiff to the testator. The defendants pleaded, 1. Non assumpsit; 2. Payment; 3.

THIS was an action of assumpsit, on a charter party not . a under seal. I he cause was tried before Mr. J. Spencer, at the New-York sittings, in April, 1817.

THIS was an action of assumpsit for the freight of goods laden on board the schooner Three Sisters, on a voyage from New-York to St. Bartholomews. The cause was tried before Mr. J. Van Ness, at the New-York sittings, in December, 1816.

THIS was an action of assumpsit on a bill of exchange, ** dated at New-Yorh, the 7th of November, 1812, drawn by the defendant, on Edward Angove, of Falmouth, in England, in favour oí Taylor and Newman, or order, for 331/. 3s. 6d. ' sterling, payable in London, thirty days after sight, and endorsed by Taylor and Newman to the plaintiff. The cause was tried before Mr- J. Spencer, at the New-YorJc sittings, in April, 1817.

THIS was an action of ejectment, for part of lot No. 60, in the town of Mentz, in Cayuga county. The parties agreed upon a case, containing the following facts, for the opinion of the court.

<p>THIS was an action of ejectment for land in the town of Flushing, in the county of Queens. The cause was tried before Mr. J. Van Ness, at the Queens' circuit,-in June, 1817.</p> <p>The plaintiff’s lessor claimed the premises as the only child and heir at law of Gilbert Field, who died in possession, about 28 years before the trial. After the death of her father, she married Thomas Hunt, who died in 1812. The defendant claimed as purchaser under a power of sale contained in the will of Gilbert Field, executed the 20th of February, 1788, and the material'parts of which are as follows :</p> <p>“ In the first place, I will and order, that all my just debts and funeral charges be. paid by my executors hereinafter ■ named, out of my personal estate. If there should not be enough of my personal estate, I will and order some of my real estate to be sold for to pay my debts. Item. I give and bequeath unto my wife Hannah, the use of all my estate, both real and personal, after the payment of the debts as aforesaid, during her natural life; and, after her decease, I give and bequeath all my estate, both real and personal, unto my daughter Elizabeth Field,, her heirs and assigns forever,” &c. The testator appointed his wife, and Jesse Farrington, his executors, but the former only undertook the execution of the will, and on the 19th of July, 1790, conveyed the premises to John Fowler, through whom the defendant claims.</p> <p>The testator, before his death, gave all his personal property to his daughter, who took away almost the whole of it when she married, leaving only some trifling articles with the widow. The testator, at the time of his death, owed • some debts, though it does not appear to what amount; there were, however, his physician’s bill, and some other small debts due from him, for the payment of which, with his funeral expenses, the premises in question were sold. The testator also owned another lot in Flushing, which had since been sold by the lessor of the plaintiff.</p> <p>A verdict was taken for the plaintiff, subject to the opinion of the court, on a case in which the above facts were stated.</p>

THIS was an action of trover for a quantity of timber. The cause was tried before his honour the chief justice, at the Albany circuit, in October, 1817. The plaintiff produced in evidence the following writing or hill of sale. “ Stillwater, March 16, 1816.

THIS was an action of assumpsit on a policy of insurance on 1,000 barrels of flour, valued at the sum insured, which was 12,766 dollars, from Petersburg to Norfolk, on hoard of crafts or vessels; and at and from Norfolk to Lisbon, on hoard the ship Debby 8/ Eliza. The policy was dated the' 8th of February, 1813, and contained a warranty, that the vessel should have a genuine British license on board; and that the cargo should he in conformity to the license.

' MOTION to set aside the judgment, and the subsequent proceedings, and for a new trial, on the ground of newly discovered evidence. From the affidavits which were read, it appeared, that the suit was commenced in 1807, and after a trial and verdict for the plaintiff, judgment was entered for yie plaintiff, in October term, 1816, there being no order * 7 7 7 ° to stay proceedings, but no execution was issued until sometime in July, last past.

THIS was an action of assumpsit on twelve promissory notes, dated June 3, 1811, for twenty-five dollars each, made by the defendants, payable to Caleb M. Fitch, or bearer, on the 1st of June, 1812. Plea, non assumpsit. The cause was tried at the Cortlandt circuit, in June, 1817, be-Mr. Justice Platt.

THIS was an information in the nature of a quo warranta, filed by the attorney general against the defendants, for exercising banking privileges, without authority from the legislature. , The defendants were incorporated by an act of the 29th of March, 1816, (sess. 39. c. 52.) and as the questions arising and discussed in this case, related principally to the true construction of the act of incorporation, it becomes necessary to set forth such parts of it, as are material to…

IN 1811, the defendant confessed a judgment in favour of the plaintiff, on a bond for 10,000 dollars, conditioned to pay 4,509 dollars, with interest.

THE prisoner being brought up on an habeas corpus, Hosford moved for his discharge under the “ act for the recovery of debts to the value of twenty-five dollars,” passed April 5, 1813, (sess. 36. ch. 53. sect. 12. 1 JY. R. L. 387.) on the usual affidavit.

There was an issue in fact, and an issue in law, both of which were joined in the last January vacation. The venue was laid in Rensselaer county. The demurrer, it was stated, went to the whole merits of the case, and had not yet been brought on to argument.

MOTION, on the part of the defendant, to set aside the Verdict, and all subsequent proceedings in the cause. The venue was laid in the county of Cortlandt, where the defendant was arrested. He, afterwards, and before the declaration was delivered, removed with his family to Whites-town, in the county of Oneida, a distance of more than fifty miles from his former residence, and where he has since continued to live.

<p>plaintiff6 after obtaining an Interlocutory judgment, neceede<furtfer, two "terms/*" ed," m motion ant**1 thatfe"hé plaintiff execute his writ of a"y"iryor" be nonprossed,</p>

THIS was an action of replevin, for taking certain goods and chattels of the plaintiff. The defendant pleaded to the declaration, which was in the ordinary form, 1. Non Cepit; 2.

<p>IN,ERROR, on certiorari to a justice’s court.</p> <p>The defendants in error, brought an action in the court below, against the plaintiff in error, for goods sold and delivered in the year 1815, to Sally Green, who afterwards became the wife of the defendant below. The defendant l-i-l j, , . , , .... pleaded the general issue. At the trial, in the court below, the defendant stated, that he was under twenty-one years of age, and his father, who was present, assenting to that fact, the justice appointed the father his guardian with the defendant’s assent. It was agreed between the parties, that the cause should proceed to trial on its merits. The account of the plaintiffs below against Sally Green, prior to her mar--,1 .1 1 O 1 11 , nage with the defendant below, was admitted by the guardian, and it was attempted, without success, to subsiana set-off in her favour. No motion was made for a non suit, nor was any objection raised on the ground of the nonjoinder of the wife of the defendant below, nor was any objection taken on account of the defendant’s infancy. Judgment was rendered in favour of the plaintifis below.</p>

THIS was an action of debt, for an escape. The declaralion stated, that the plaintiff, in this action, in August, 1816, recovered a judgment, in an action of trespass, assault, battery, and false imprisonment, in this court, against Jeremiah Robinson, for 77 dollars and 44 cents; that a ca. sa. was issued thereon, and delivered to the defendant, on the 2d of November, 1816, who, on the 30th oí November, arrested Robinson, and on the same day voluntarily suffered him to…

THIS was an action of assumpsit for goods sold and de- . , . , . , -it hvered, money had and received, money paid, and money lent and advanced. The defendant, Sherburne, alone, was taken and appeared. The cause was tried before Mr. J. Platt, at the New-York sittings, in November, 1817.

This was an action of assumpsit. The declaration contained two counts : 1. For money paid, laid out and expended by the plaintiffs, to the use of the defendant. 2.

<p>Where acredei°‘anVexécu" prope]iy°ofhis isting’ 0fCOná ponderousartioie not easily removable and allows it to continue in his possession, this is not, per se, ihe execution fraud’uimt^so property liable under a' ju.tior execution against the same debtor; but if the creditor permit the sume the proprewood,b™if suspfcion“d fof fraud; and to prove thefraud, the creditor in the junior execution may produce evidence of a permission given to the debtor to use other property levied upon at the same time.</p> <p>If the officer who made tne first levy, brings an action of trover against the parties who were engaged in the second levy, they may show circumstances of fraud to defeat the action, equally as if it had been brought by the creditor himself.</p>

IN this case, the action was brought by Caswell, the crcditor in the prior execution mentioned in the two preceding, cases wi10 produced no evidence, at the trial in the court 7 r 7 below, to show why he had left the property in the possession of Payne.

IN ERROR, on certiorari to a justice’s court* This was an action of trover, brought by the defendant in error, against the plaintiffs in error, for three hed-quilts. The defendants below justified under an attachment, in fa-your of the defendant, Farrington, against Peter Payne, for debt, by virtue of which, the defendant, Smith, as constable, seised and carried away the bed-quilts.

<p>Where there pass^orconver" gie" indivisible act, m relation tels, the plaintiff cannot split his claim for bSngmg’sepatrespass‘or tro-" particular6 aí tide seized or converted ;’and oneec°pari parcel, ¡Sambar for another or</p> <p>Where the once adjourntice’s'courtf by the^efenctent forna second adjournment, on account of the want of a material witness; but does due ^diligence had been used to obtain the refuTef’to d£ where thewPt“vq3 ei-V for * the justice to refuse the adjournment</p>

THIS was an action of assumpsit on a promissory note, dated October 25th, 1815, by which the defendant Wedge promised to pay W. Atherton, or order, 85 dollars, by the first of January next, with interest. The note was signed by Wedge, and underneath his name was subscribed the name of the defendant Matthews, in the following manner: “ Thos. Matthews, security.” On the note was indorsed an assignment from the payee to the plaintiff, dated November 11th, 1817.

THIS was a special action on the case. The declaration stated, that on the 8th of August, 1815,' one Elijah Briggs, a pauper, having no legal settlement in this state, and being destitute of property, and wholly unable to support himself, was residing in Plattsburgh ; that Nichols and Palmer, two of the justices of the peace of the county of Clinton, upon complaint made to them by the defendant Morse and one _ , mirk, then overseers of the town of Plattsburgh, that the…

THIS was an action of trespass for taking three horses. . . . The defendant pleaded not guilty, with notice of justificatian under a writ of fieri facias. The cause was tried before Mr. J. Yates, at the Washington circuit, in June, 1817.

<p>When a high"ver‘the’land person,pnVthe public acquires no more anarightof way, or ease-™t™ofthe mi ginal proprietor still contin- , , ... . . ....... ues : he may use the land ”m any manner not inconsistent with the public rkdit • is entitled to all mines, &c., and may maintain trespass or ejectment in relation to it. ° ’</p> <p>If a person over whose land a highway is laid out, convey the land on each side of it, describing itbv such boundaries as do not include the road or any part of it, the property in the road does not pass to the grantee, as it is excluded by the description in the grant; and it cannot pass as an incident being in itself a distinct parcel of land, and the fee of one piece of land not mentioned in a deed,’cannot pass as appurtenant to another.</p> <p>"When an old road, the fee of which is in one person, is discontinued, and a new road laid out ever the land of another person, which land is contiguous to the old road, the proprietor of the land is not entitled to the old road, as a compensation for the land taken for the new road, under the 17th section of the act to regulate highways, (sess 36. c. 33. 2 N. R. L. 275.) which only applies where another road is substituted over the land of the same proprietor.</p>

IN ERROR, on certiorari to a Justice’s Court. The defendant in error brought an action of trespass, in the court below, against the plaintiffs in error, for taking his cow.

This was an action of trespass on the case, brought in the court below, by the plaintiff in error, against the defendant in error, who was sheriff of the county of Franklin, for not executing or returning a writ of fierifacias.

THIS was an action of dower, brought to recover dower in two lots in Douglas patent, in the town-of Bolton, in R16 County of Warren. The tenant pleaded ne ungues, selsie Ue dower, and ne ungues accoupléin loyal matrimonie. The cause was tried before Mr. J. Yales, at the Warren cir-e e 7 cuit, in June, 1817, The marriage of the demandant, and the death of her husband, in December, 1804, were proved.

THIS was an action of assumpsit on a promissory note drawn by J. J. Lansing The signature of the makers and endorser, demand of payment and notice to the endorser and protest for nonpayment on the ,30th of October, 1817, were proved. The defendant gave in evidence his discharge, as an insolvent, granted by the recorder of Albany, on the 6 th of May, 1817.

IN ERROR, on certiorari to a Justice’s Court. The defendant in error commenced an action, by warrant, in the court below, against the plaintiff in error, on a promissory note. The defendant below relied on a set-off; and he requested an adjournment, and said, that he had g°°d bail present. The justice refused the adjournment, unless the defendant below would not only give bail, but swear that he could not proceed to trial for want of a material witness.

THIS was an action of ejectment for land in Livingston, in Columbia county. The cause was tried before Mr. J. Spencer, at the Columbia circuit, in August, 1815. The defendant held under a lease from Robert Living■ston, proprietor of the manor of Livingston, from whom the lessor of the plaintiff derived his title.

IN ERROR, on certiorari to a Justice’s Court. The defendant in error brought an action in the court below, as assignee of the sheriff of Onondaga, against the plaintiffs in error, on a bond given by them for the gaol liberties, in the penalty of 21 dollars. The execution of the bond, and the assignment, and the escape of Sprague, f°r whom the bond was given, having been proved, the jus*’ce rendered judgment for the plaintiff below, for 21 dollars, and costs. • •

<p>Where tbo defendant sold the plaintiff a note of the President and Directors of a certain Com-pony, and alof the stock of for which fie ¡¡T5 f whiskey? ^presenting tole gondanci ^°,,s¡n^cí he knew them to be insolvent, and the plaintiffs executed their notes or dfiwe™e"lsth“ fhture^period" ^eredaccordjngiy. andhavdiscovered the insolvency of the Company, the defendant, stock,"“‘which ceivedhadfrom tjjat The aPROjal con." tract was vi-|atad J^e fendann by sumption" that stock “vereTaken as pay-repelled ; that had the plaintiffs been sued by the defendant for the non-delivery of the whiskey, his fraud would have been a defence to the action, and that the plaintiffs having (delivered the whiskey might recover the price of it, under a count for goods sold and delivered.</p> <p>Where the vendor of goods is induced to take the promissory note of a third person as payment, by a fraudulent representation of the solvency of that person, the note is no satisfaction, and he may maintain an action against the purchaser for the price of the goods.</p>

IN ERROR, on certiorari to a Justice’s Court. The judgment in this case was entered by the Justice on a written authority, or direction,signed by the defendant below, under seal, which authority was proved by the subscribing witness, before the Justice, when the judgment was entered.

THIS was an action of ejectment for part of lot No. 45, in the town of Locke, in the county of Cayuga ; the parties, by consent, without trial, made a case for the opinion of the court, which was submitted without argument. The plaintiff and defendant both derived their title from John Van Deusen, who went into possession of the premises in question as assignee of one Bailey, to whom they had been leased by Isaac Cooper.

THIS was an action of replevin, in which the defendants made avowry for rent arrear. The cause was tried before Mr. J. Platt, at the Columbia circuit, in September, 1817. The defendant held under a lease from Robert Livingston, dated May ¡7, 1775, to Isaac Spoon and wife, reserving a rent of 50 skipples of wheat, and two hens. In April, 1814, _ . . * the interest in the term became vested in the plaintiff by assignment.

This was an action of covenant, for the breach of the 'Covenants contained in a conveyance of land.

IN ERROR, on certiorari to a justice’s court. The action in the court below was brought by the defend- , mj ant in error against the plaintiff in error. On the return of , , the summons, the parties adjourned the cause by consent, and when they appeared on the adjourned day, the plaintiff below requested a further adjournment, and made oath that a material witness who had been subpoenaed did not attend.

<p>THIS was an action of tresspass, for taking and carrying away a pair of horses, waggon and harness. The cause was tried at the Dutchess circuit, in 1817.</p> <p>The defendant, Paine, was a justice of peace in the county of Dutchess. In July, 1816, an action was brought before Paine, by one Hannah Betts, against the plaintiff in this suit, for an assault and battery. A written plea to the jurisdiction of the justice was interposed, and overruled ; and during the trial the counsel for Woodard strenuously jected to the iustice proceeding in the cause, and stated , , . , , . , , , . , - ,, . to him that the judgment would be void, and all acting under it would be tresspassers. The justice, however, perse vered, and H. Betts obtained a verdict and judgment for 15 dollars. An execution was ¡sued thereon, and delivered to the defendant Lake, a constable, who seised the goods in question, but left them with the plaintiff until the time of * sale, when they were purchased by Hine, for about 19 dollors. Andrew Lake, a witness on the part of the plaintiff, testified, that soon after Hine purchased the horses he sold them to Daniel Lake for 225 dollars, and that Daniel Lake sold them to the witness, for 227 dollars and 50 cents ; that the witness bought them for the plaintiff, and that the plaintiff gave the witness his note for 230 dollars, and also 2 dolo ’ lors in cash, the difference of the price being intended, as ’ r o ’ the witness alleged, to compensate him for his trouble, . 11- . 1 his witness being pressed, on his cross-examination, was hesitating and incoherent in his answers, especially when questioned as to the reason why the plaintiff had paid him 2 doliars in cash.</p> <p>Several witnesses were produced on the part of the defendants, to prove circumstances from which it might be inferred that Hine purchased as the agent of, and with money furnished by, the plaintiff; as, that Hine who lived in the plaintiffs "family, was very poor, and unable to pay the money wpjich he had bid at the constable’s sale ; but there was no direct evidence to this effect. The counsel for the defendants offered to prove declarations of Hiñe, that he had been furnished by the plaintiff with money for the purpose of bidding for the horses, but the judge rejected the testimony. It also appeared that Hine had kept out of the way, to avoid being subpoenaed by the defendants, and that after he had been subpoenaed, he absented.himself from the trial.</p> <p>The judge charged the jury that the plaintiff was entitled to recover, as the justice had no jurisdiction in the cause which he tried, and therefore his judgment was void, and all acting under it were trespassers. That if the jury believed that the justice had acted from ignorance merely, and that his intentions were good, they ought to give such damages only as would compensate the plaintiff for the actual loss that he had sustained : that to determine this point it would be proper for them to consider the manner in which the sale was made, and how the property was afterwards disposed of, and to determine whether there had been any collusion between the plaintiff and the purchaser, by which the plaintiff obtained his property again, without paying moré than the amount of the judgment ; or, whether he had actually given the value of it : that the testimony of Andrew Lake was positive as to the fairness of the transaction, but it was opposed by many strong circumstances, and circumstances frequently afforded more satisfactory evidence than positive proof: that from the testimony he was inclined to think, that the sale of the horses was collusive, but this was a question for the decision of the jury; and that if the jury believed, from the testimony, that the defendants had acted from improper motives, and knowingly, they might give a verdict, not only for the actual damage sustained by the plaintiff, but in addition, for smart money, for the oppression and vexation which they had created.</p> <p>The jury found a verdict for the plaintiff for two hundred and seventy dollars, which was about the value of the property in question.</p>

IN ERROR, on certiorari to a justice’s court. The defendant in error brought an action in the court be-o low against the plaintiff in error, in which, after issue joined, the cause was adjourned too future day, at two o’clock in the afternoon. The defendant below appeared at the time, but the justice did not come until three o’clock, or a little after, when, the plaintiifbelow not having arrived, the defendant urged the justice to call the cause.

<p>f Transaction of a covenant an agreement! cannot recover defendant mo° dace him to engreement^as it ing and unrescialty ’where the té*” damag^fora breach of the covenant.</p> <p>The plaintiff and defendant being joint proprietors of a tract of land, of which the plaintiff had conveyed a part, by deed, with covenant for quiet enjoyment and warranty, agreed to make partition of the tract m such manner that the part conveyed by the plaintiff should be set off in his portion, and they appointed three persons to make the partition, and covenanted to execute releases to each other. The persons appointed having made paitition, the defendant refused to execute a release: Held, that the plaintiff was not entitled to recover, as damages, for the breach of the agreement to release, any part of the consideration expressed in the deed, to his grantee, who had never been evicted, the plaintiff’s liability being merely contingent; and he can have no claim against the defendant for damages to which he may, by possibility, be liable to his grantee: besides, it is questionable, whether the defendant would not be estopped by the partition, which, though it has not the operation of a conveyance, might be considered in the nature of an award, from setting up a title against the plaintiff’s grantee.</p>

IN ERROR, on certiorari to a justice’s court. The defendant in error brought an action in the court below against the plaintiff in error, and declared against him in an action for money had and received, on a certain promissory note given by David Franklin to the plaintiff below, and upon which the defendant below had received the money; and also alleging that the note was obtained from him, the plaintiff below, by management, when he was insane and of unsound mind.

ERROR, on certiorari to a justice’s court. After issue joined in this cause, it was adjourned to a future J J \ tfoy, at two o’clock in the afternoon, at which time the parties appeared, and the justice having indispensable business , . J ,. . tu .• - , , which prevented his attending at the time appointed, the defendant below, who is the plaintiff in error, assented to a delay.

<p>. Where there is a lease at a certain annual rent, and the tenant holds over, after the expiration of out^any 'new tithe ralt, the ihS the‘tenant ho!ds’ ñ'™ ^ original</p> <p>But if the rent reserved in the lease ground“ríntt exclusiveófthe the'ianlfórlat ofthSS comes entitled to the buildings erected by the tenant, as well as the land, in that case, a different rule will be adopted, and the annual value of both the land and buddings is the measure of damages.</p>

<p>toil,pay persons turning0 °fróm grain or flour j°r ^se fathe doe™'not1 uppiy to a wag-through g thl íoadedfcwitíaoaiicfsomegram ar flour. Where a turnpike act exempts from Clf</p>

<p>THIS was an action of assumpsit. The defendant pleaded non assumpsit, and actio non accrevit infra sex annos. The plaintiff replied, that the action did accrue within six years. The cause was tried before Mr. J. Spencer, at the New-York sittings, in April, 1817.</p> <p>The plaintiff was formerly collector of the customs, of the port of New- York, was removed in July, 1801, and was succeeded by the defendant. The plaintiff had, previously to his removal from office, caused two vessels, the ship Huron, and the schooner Two Friends, to be seised for a violation of the registry act of the United States ; and after the plaintiff’s removal they were condemned, and the amount of the forfeitures was paid over to the defendant. The plaintiff claimed one third of the moiety of these forfeitures.</p> <p>At the time of his removal, the plaintiff delivered over to the defendant a number of bonds which had been taken for duties, amounting to 3,254,773 dollars and 24 cents. Of these bonds 3,113,101 dollars and 42 cents, were paid to the defendant, on or before the 30th of June, 1802, at which time an act of Congress allowing the collector a salary, instead of a commission of one fourth per cent, formerly received on moneys collected by him, went into operation. The plaintiff, in July and September, 1801, paid over to the defendant large sums in cash, heing money received by him fQr ¿u¿ieSj amounting to 52,168 dollars, and 93 cents, without making any deduction for commissions. The plaintiff claimed, in this action, one fourth per cent, commission, on the amount of the bonds which he had delivered to the defendant, and which the defendant had collected prior to the 30th June, 1802, and also a commission of one fourth per cent, on the money paid over by him to the defendant.</p> <p>At the trial, several letters between the parties were read. On the 23d of March, 1816, the plaintiff wrote to the defendant respecting his claim for forfeitures, proposing a reference ; and the defendant, in his answer of the 29th of the same month, refers to a compromise that had been made between the executors of Mr. Osgood, formerly naval officer, and Mr. Ferguson, his successor, and Mr. Schenck, formerly surveyor, and Mr. Raff, his successor, by which the proceeds of condemnations prior to the death of Mr. Osgood, and the removal of Mr. Schenck, were paid to Osgood’s executors and Schenck, and the proceeds of subsequent condemnations were paid to Ferguson and Fluff. The defendant then adds, “ if the compromise above stated was to be taken for a rule, you will perceive that you have no claim. But to go further, as you ask my opinion which I now give you, and corroborated by what I com sider good authority, Mr. Ferguson and Mr. Huff, were entitled in law to all the forfeitures they have given up by compromise. Under these circumstances, I must decline both the (rouble and expense of a reference.”</p> <p>In a previous letter, of May 30th, Í 814, the plaintiff wrote to the defendant on the subject of his claim for commissions ; to which the defendant, on the 3d of June, answered, “ I did suppose that in the frequent conversations upon the subject you mention, I had been sufficiently explicit. I never had but one opinion, which is, that the law never contemplated, or intended a payment from me to you. I am yet of that opinion. If I had thought otherwise, I certainly would not have delayed it to the present time.”</p>

THIS was an action of assumpsit upon a policy of insurance, dated the 8th of May, 1312, underwritten by the de fendants, on account of the plaintiffs, on the cargo of the J.huerican brig Syren, Cobb, master, from the vicinity of Sandy Hook, to her port of discharge in Sweden or Russia, with li berty to call and wait at Gothenburg for orders.

<p>Y^aereYfOT the end of the next term, the plaintiff has the whole of the last day of the term in which to declare; and his default cannot be entered until the next day thereafter.</p>

<p>An affidavit taken before a Commissioner or Recorder, who is Conn? sel in the cause, may be read; but not if he is the Attorney.</p>

SUFFERS moved to set aside the proceedings before the Surrogate of Rockland county, as to the admeasurement °f dower, under the acts concerning dower, and the act supplementary thereto, (l N. R. L. 56. 60- 61. sess. 10. ch. 168.) Notice of the motion had been served on the widow, which stated the several grounds on which the application was to be made ; some of these were, that the proceedings before the Surrogate were ex parte, without any legal notice to the parties…

THE court, in October, 1817, (14 Johns. Rep. 417.) on a demurrer to the assignment of errors in this cause, which was of an error in fact, to wit, the infancy of Duncan, one of the plaintiffs in error, gave judgment that the judgment of the court below be revoked, revocetur; with liberty to the defendant, if he chose, to withdraw his demurrer, and rejoin to the assignment of errors.

<p>An aftorney nLfhgoodUbau!</p>

<p>Where a cause is noticed for trial, and as an inquest, a copy of the affidavit of defence filed with the clerk of the sittings, must be served on the plaintiff's attorney; otherwise, tne defendantmust pay costs, ;in case the inquest taken by-default, is, afterwards, set -.aside,</p>

IN ERROR, on certiorari to three of the Judges of the Court of Common Pleas, of the county of Columbia, to whom an appeal had been made by the defendants in error, under the 36th section of the act to regulate highways, sess. -36. c. 33. (2 JV.

THIS was an action of ejectment for a farm in Poitghkeepsie, in the county of Dutchess. The cause was tried * 7 J before Mr. J. Van Ness, at the Dutchess circuit, in August, „ A .._ 1817.

THIS was an appeal from the Court of Chancery. The respondent, in his bill in the court below, stated that Matthias and William, Ward were copartners in the business of booksellers, before, on, and after the 27th of January, 1810, on which day, M. Ward was seised of fifty lots of ground in the ninth ward of the city of New- York, containing each 25 feet by 100.

THIS was an appeal from the Court of Chancery. The hill was originally filed by Andrew Van Tuyl, and the respondents Ward and M'Evers, in the year 1802, as assignees, under the bankrupt law of the United States, of Robert Murray, against John B. Murray and John Innes Clark, and others. Van Tuyl was afterwards removed by the creditors, and Riggs substituted in his place.