Volume 15 — Wendell's New York Reports

Error from the supreme court. Dunham and Wadsworth brought an action against the American Insurance Company, in the superior court of the city of New-York, on three policies of insurance upon the vessel, cargo and freight of a schooner, to recover the damages and expenses incurred in procuring the liberation of the vessel and cargo from a seizure at Porto Cabello, in Columbia, for a violation of the laws of the country prohibiting the importation of tobacco and cigars, and…

Error from the supreme court. Dunham and Wadsworth brought an action against the American Insurance Company, in the superior court of the city of New-York, on three policies of insurance upon the vessel, cargo and freight of a schooner, to recover the damages and expenses incurred in procuring the liberation of the vessel and cargo from a seizure at Porto Cabello, in Colombia, for a violation of the laws of the country prohibiting the importation of tobacco and cigars, and…

Error from the supreme court. Seymour and Bouck brought an action in the supreme court against C. A. Van Slyck, E. Stone and others, on a bond given to them as canal commissioners, the condition of which was that Van Slyck should pay over all moneys received by him as collector of tolls on the Erie canal, at Rochester, and well and truly execute the office of collector. The bond hears date 1st June, 1825.

ERROR from the supreme court. Hatch applied to Mann, a constable, to arrest his debtor of the name of Gallup. Mann declined, hut on a promise of being well paid undertook the service, and went, with a person employed by him to assist, to the house of Gallup, at the hour of three, A. M., and watched until day-break, when he succeeded in arresting him.

Error from the supreme court. Eggleston sued Downer in the supreme court, and declared upon a written instrument made by the defendant in December, 1829, whereby he acknowledged to have received of the plaintiff a receipt of A. Nelson & Co. for 5032 feet of square hemlock timber, the property of the plaintiff, and agreed to account for the timber, if he should dispose of it, to the full amount of the proceeds, deducting the changes of A. Nelson & Co. for securing the same…

ERROR from the supreme court. Eggleston sued Downer in the supreme court, and declared upon a written instrument made by the defendant in December, 1829, whereby he acknowledged to have received of the plaintiff a receipt of A. Nelson & Co. for 5,032 feet of square hemlock timber, the property of the plaintiff, and agreed to account for the timber, if he should dispose of it, to the full amount of the proceeds, deducting the charges of A. Nelson & Co. for securing the same…

Error from the supreme court. In October term, 3828, O. & L. Denison commenced a suit in the supreme court against Mason & Hale, in which Mason was returned by the sheriff upon the capias ad respondendum as taken, and Hale as not found. The plaintiffs declared against loth defendants under the statute authorizing a proceeding in the suit upon such a return of the sheriff in the case of joint debtors.

Error from the supreme court. This was an action of debt, brought on a bond given by Fake to Tisdqle Eddy, the testator, in the penal sum of $6382, bearing date 27th October, 1827, conditioned for the payment of the sum of $3191, “in the following manner, namely; $1000 on 1st May, 1830, $1000 on 1st May, 1832, $1191 on 1st May, 1834, or of the interest thereof, or any part thereof, to be paid yearly and every year, on the first day of May in each year, after the same…

The appellant, as the executrix of Catharine Dempsey, filed a bill for an account of rents and profits of certain estates, from ls.t May, 1813, to 16th May, 1831, which the respondent had collected.

Error from the supreme court. Dubois obtained a judgment against tbe Delaware and Hudson Canal company, upon which the defendants below sued out a writ of error, removing the record into this court. See case and opinion delivered in the supreme court, 12 Wend. 334, et seq. The cause was argued in this court by—

Error from the supreme court. Lane sued Wells in the Yates common pleas in an action of slander. After the cause had been at issue twenty months, the defendant put in a plea puis darien continuance, that on, &c., the cause of action set forth in the declaration bad been submitted to arbitration, praying judgment whether the plaintiff ought further to have or maintain his action. To which plea tbe plaintiff replied, denying the submission.

<p>A judgment in the common pleas, by confession on bond and warrant of attorney, where the condition of the bond exceeds $500, is not valid, if the costs'be taxed and record signed by a common pleas judge, not being thefirst judge of the county, of the degree of counsellor in the supreme court, (a)</p>

This was an appeal from chancery. See ease and opinion of chancellor, 4 Paige’s Ch. R. 178, et seq. The cause was argued here by—

The attorney general filed an information, in the nature of a quo warranto, against The Rensselaer an¿ Saratoga Rail Road Company, charging the company with claiming to be a body politic and corporate in law, fact and name, by the name of The Rensselaer and Saratoga Rail Road Company, and with claiming the liberty, privilege and franchise of placing abutments, piers and other works, in the bed, current and channel of the Hudson river at Troy, in the county of Rensselaer, and…

This was an action of replevin tried at the Rensselaer circuit, in September, 1835, before the Hon. James Vanderpoel, one of the circuit judges. The declaration was for 41 bars of Russia iron. The defendants pleaded non cepit, and property in Henry B. Titus, in Roswell Green, and in Furniss, one of the defendants.

The prisoner was indicted for embezzling money to the amountof $350,which had been collected and received by him, and which had come into his possession as the servant of one Joseph Fisk, the money being charged to be the property of his master.

Demurrer to pleas. The plaintiff declared as the endorsee of two promissory notes, made by the defendants, payable to William Taggard Sf Co.': one dated 13th January, 1827, for $1960, and the other dated 28th February, 1827, for $2000, and each payable 60 days after date.

William Gates was convicted of the crime of arson in the second degree, at the Erie oyer and terminer in March,1835, and judgment was respited to obtain the advice of this court on a case made. The indictment contained six counts.

This was an action of ejectment. On the trial of the cause the circuit judge refused to receive in evidence a deposition taken to perpetuate testimony, on the ground of the incompetency of the witness. A verdict was found for the defendant, and on the motion of the plaintiff a new trial was ordered by this court, for the error of the judge in rejecting the testimony. The opinion discloses the grounds upon which the new trial was ordered.

This was an action of debt on a bond given by the testator, whereby, after reciting that he had received the sum of $700, part of a legacy bequeathed to his wife by the last will and testament of her father; and that he was desirous to secure to her and to her separate use the said sum of money, the condition was declared to be that if his heirs, executors or administrators, in case he should depart this life previous to the death of his wife, should within six months after…

Error from the Orange common pleas. Middlebrook sued Corwin in a justice’s court, for several loads of manure carried away from a farm occupied by one Van Cleft as tenant to Middlebrook for a year. The farm was stocked by Middle-brook with twenty milch cows, a pair of working cattle, and other cattle. The manure was sold by the tenant to the defendant, and taken from the barn-yard of the farm shortly before the expiration of the tenant’s term.

This was an action of ejectment, tried at theWashington circuit in November, 1833, before the Hon. Esek Cowen, then one of the circuit judges. The premises claimed are 40 acres of land, part of lot No. 25, in the Artillery patent, situate in the town of Fort Ann. The plaintiff produced the following documentary evidence; 1.

Demurrer to pleas. The declaration in this cause contained' several counts. The first was on a guaranty, bearing date 13th March, 1829, whereby the defendant engaged to guarantee to the plaintiff the eventual payment of a note given by one Torrey to the plaintiff, for the sum of $59, which note was alleged to bear date 5th June, 1828, and to have been made payable 1st February, 1829.

Demurrer to declaration. The declaration contained two counts. The first was in case, for damages sustained by the plaintiff in consequence of the non-attendance of the defendant as a witness when duly subpoenaed, concluding by claiming $ 1000 as such dam ages, according to the provisions of part 3, ch. 7, tit. 3, art. 6, §43 of the revised statutes.

Demurrer to declaration. The declaration contained two counts. The first was in case, tor-damages sustained by the plaintiff in consequence of the nonattendance of the defendant as a witness when duly subpoenaed, concluding by claiming $1000 as such damages, according to the provisions of part 3, ch. 7, tit. 3, art. 6, § 43 of the revised statutes.

<p>A promise by a party to pay all he owes to another, accompanied by an express denial that he owes, oi is under a legal liability to pay any thing, will not support an action.</p> <p>Where two persons are jointly concerned in the building of a mill, the promise of one to pay for ad* vanees made will not bind the other. The community of interest does not create them partners; to constitute them such, there must be an agreement ultimately to share in the profit and loss.</p>

<p>This was an action of assumpsit, tried at the Steuben circuit in November, 1833, before the Hon. Robert Monell, one of the circuit judges.</p> <p>The following are the facts of this case. In the spring of 1832, the plaintiff and Tourtellot, one of the defendants, were partners, carrying on mercantile business, under the name of Edward L.Porter Co., at Hammonds-port, in the county of Steuben,where the business was conducted by Tourtellot; the plaintiff residing at Ithaca. In June of that year, Tourtellot and M’Clure entered into a contract with John G. Taylor and Nathan Taylor, by which the latter agreed to build a saw-mill for Tourtellot and M’Clure, for the sum of $800, to be paid as follows: $700 in store goods,and $ 100 in cash; the payments to be made as the work progressed. Goods were accordingly advanced by Tourtellot, from the store of E. L. Porter & Co., to the amount of $600, which were entered upon the books of E. L. Porter & Co., under an account headed Nathan Taylor. M’Clure knew at the time that these goods were advanced to the Messrs. Taylors, on account of the contract with them, and assented to the advances thus made. In October, 1832, the partnership between the plaintiff and Tourtellot was dissolved : Tourtellot executed to the plaintiff an assignment of his interest in the goods on hand, and in the notes and accounts due the firm ; and the plaintiff executed writings to Tourtellot, certifying a balance in his favor of $380, which he promised to pay in three months, and engaged to pay all demands due from the firm, and indemnify Tourtellot against all liabilities. After the" execution of the writings, the plaintiff spoke to Tourtellot respecting the account on the boohs against NathanTaylor, and observed, “ I suppose you and the general, (meaning M’Clure) will see this account of Taylor settled,” to which Tourtellot answered, that he would, or that they would : which expression was used the witness could not recollect. M’Clure was not present' at this conversation. Some time afterwards M’Clure told the plaintiff that he and Tourtellot would pay to the plaintiff all they owed the Taylors; that the Taylors had failed to fulfil their agreement, and denied being under any legal liability to pay them any thing. He said their work would come to about $600, and offered to submit to men to determine what he owed to the Taylors, and would pay it to the plaintiff. The grounds upon which M’Clure denied his liability to pay the Taylors, were, that the work was not done by the time and in the manner agreed upon, and that the frame of the saw-mill was insufficient. The declaration contains a special count, setting forth the partnership between the plaintiff and Tourtellot; that Tourtellot, while such partnership continued, entered into a copartner shipand connexion with M’Clure,in the building and erecting of divers saw-mills and grist-mills, and other hydraulic businesses and affairs,and that in the prosecution of their business Tourtellot and M’Clure employed Nathan Taylor and John G. Taylor to do certain work for them in and about their business, who accordingly did the same, to the amount of $ 1000; and that for the purpose of paying them,Tourtellotsold arid delivered them goods out of the store ofE.L.Porter & Co., to the amount of $ 1000. The declaration then, after stating the dissolution of the partnership between the plaintiff and Tourtellot, and the assignment by the latter of his interest in the goods and accounts of the late firm of E. L. Porter & Co. sets forth a- promise of the defendants to pay to the plaintiff the money advanced by Tourtellot to the Messrs.Taylors, and concludes with the usual breach. The declaration also contains the common counts for goods sold and delivered by the plaintiff to the defendants. When the plain tiff closed his evidence, the defendants’ counsel raised various objections to a recovery, and among other grounds, particularly insisted upon variances between the declaration and proof; all of which were overruled by the judge, under whose instructions the jury found a verdict for the plaintiff for $611, being the amount claimed by the plaintiff, with the interest thereof. The defendants, on a case made, asked for a new trial.</p>

<p>Where a person called to prove the testimony of a deceased witness, given on a former trial, produces in court minutes of such testimony taken by him at the time, and states that he intended to take down the words of the witness, and all that he deemed material, but could not say that he had taken his precise words or every word of the testimony; and that he could not now swear to the testimony, except from his minutes; it was held, that such evidence was admissible to prove the testimony of the deceased witness.</p> <p>A witness maybe re-examined by the party calling him even after a cross-examination, as well for the introduction of matter new in itself ¡us for the purpose of explaining the expressions or the motives of the witness, where the omission to examine him as to such new matter, when first called, arose from inadvertence or other cause, to be approved by the court.</p>

A certiorari was directed in this case to George Miles and 25 other persons by name, designating them as supervisors of the several towns of the county of Allegany, and as forming the board of supervisors of that county at the annual meeting of the board in the month of November, 1832, requiring them to send to this court the decisions and orders made by them at such annual meeting, allowing any account as chargeable against the county,and directing the raising of money to…

<p>■ The sale or mortgage of personal property, unless accompanied by delivery'and followed by an actual and continued change of possession, is prima facie fraudulent, and conclusively so unless the sale or assignment is satisfactorily shown to have been made in good faith, and without any intent to defraud, &c.</p> <p>If no explanation is attempted, the question is one of law, and it is the duty of the court to pronounce the sale or assignment void: if explanation is given, the question must be submitted to the jury. The only case of presumptive legal fraud is that declared by the statute.</p>

Error from the Kings common pleas. Moser and Barker-loo, as overseers of the poor of the town of Brooklyn, sued Blatchley in a justice’s court to recover a penalty of $25 for selling, spirituous… Held: although in the town of Brooklyn, was not within the-bounds of the village, and the objection was overruled.

<p>Demurrer to declaration. On the 2d November, 1830, the defendant executed an instrument under seal, whereby, after reciting that he was indebted to the plaintiff in the sum of $100, he alleges that for securing the payment of that debt, with the interest thereof, he sells, transfers and assigns to the plaintiff all his right, title and interest of and in the unsold pews in the Presbyterian meeting-house in Cortland village, subject to the liens of the society thereon, by virtue of the contract made with him, under which the house was built. Then follows a proviso, that if he shall pay the $ 100, with interest, in one year, the transfer shall be void ; but in case of non-payment, the plaintiff to have power to take possession of the property, to sell it, and apply the avails in payment of the debt. On this instrument, the plaintiff .declared generally in debt for the $ 100, with the interest thereof. The defendant, after craving oyer and setting forth the instrument, demurred to the declaration, and the plaintiff joined in demurrer. The cause was argued at the last October term.</p> <p>insisted that the instrument declared on is a mortgage of real estate, and containing no express covenant for the payment of the money specified in it, the remedy of the mortgagor is confined to the real estate, and no action can be maintained against the person. 1 R. S.738, § 139. No covenant can be implied in such case. id. §140. A pew in a church is real estate. Ferard’sLaw of Fixtures, 171. It descends to the heir, and for it the plaintiff may prescribe. 5 T. R. 296. Ejectment will lie for it. 3 Paige, 296. The defendant entered into no personal covenant to pay the money. Salisbury v. Philips, 10 Johns. R. 57. Cro. Jac. 282. But if the instrument be deemed a mortgage of personal property, there being no covenant to pay, the plaintiff cannot sue upon it until after a sale of the property and ascertaining a deficit. 11 Wendell, 106.</p> <p>Here is an acknowledgement of indebtedness under seal, and on it the action lies. Debt lies for a sum certain, without a covenant to pay. Comyn's Dig. tit. Debt, A. 4. Viner’s Abr. tit. Debt, G. pl. 16, 17, and K. pl. 12. Bacon’s Abr. tit. Bebt, A. An acknowledgement of indebtedness in an unsealed instrument implies a promise to pay. 10 Wendell, 675. This is not a mortgage of real estate. A pew in a church is not real estate; it is personal property—a mere chattel interest—which descends to the heir, in the nature of an heir-loom, by special custom,, and not by the common law. 2 Black. Comm. 428. Toller’s Law of Ex’rs, 200. The seizin and possession of the church are in the trustees, and not in the owners of pews. 9 Johns. R. 147. 5 Cowen, 494. The provision in the revised statutes does not apply to this case ; it refers to mortgages of lands.</p> <p>The trustees of a church represent all the owners, and for that reason are deemed to have the seizin and possession of the edifice ; still the right to a pew descends from qle owner to his heir. How is a pew personal property ? • Is it moveable ? 'The most that can be said is that it is a chattel real, and that is as much within the statute as are lands. 1 R. S. 750, § 10. But if it is personal property, there is no covenant to pay. A naked acknowledgment of indebtedness would give a right of action ; but when a specific remedy is given, it alone can be pursued. ,</p>

This was an action of trover, tried at the Albany circuit in March, 1834, before the Hon. James Vanderpoel, one of the circuit judges. The defendant had two arks of lumber at Albany which he agreed to sell to the plaintiffs, and accordingly took the lumber to their dock.

Landlord and Tenant. Schoonmaker, under the statute authorising summary proceedings to obtain the possession of lands, presented to a judge of the Ulster common pleas an affidavit, in which he stated that on the 18th January, 1833, he executed a lease of a farm of 60 acres to Oakley, for the term of ten years, to be extended to 15 years in a certain event; by the terms of which lease Oakley was to yield and pay to him one third part of all the grain he should raise on the…

The prisoner was indicted for an attempt to obtain money from the Farmers’ Bank at Troy, by color of aforged letter purporting to be signed-by one S. S. Shepard, in which was enclosed a certificate of deposit of the Bank of Monroe for $ 1200.

Demurrer to declaration. This is an action of slander for words spoken. The declaration contains seven counts.

Error from the Onondaga common pleas. Wright sued Brotherton in a justice’s court, and declared in trespass quare clausum fregit, setting forth the close by abuttals; to which the defendant pleaded title, and gave bond for his appearance in the common pleas, if the plaintiff should elect to prosecute his suit there. The plaintiff prosecuted his suit in the common pleas, and declared for a trespass upon the same close.

<p>Encroachment on highways. Mitchell, conceiving himself aggrieved by the finding of a jury that he had encroached upon a highway, sued out two writs of certiorari, to remove the proceedings into this court; one directed to the justice who issued the process for the summoning of the jury, and the other to the Trustees of the village of Sag Harbor, at whose instance the jury had been summoned—to each of which writs, returns were made. The counsel for the party suing out the writ of certiorari, urged that the proceedings ought to be quashed on the following grounds: 1. That the trustees of the village of Sag Harbor were not authorized by law to institute or conduct the proceedings; 2. If they had authority, that the order to remove the encroachment complained of, did not correspond with the requirements of the act of the legislature under which the proceedings were had; 3. That the notice given to remove the building complained of as an encroachment, was defective and void ; and, 4. That the jurors who passed upon the case, were incompetent to try the matter in controversy, being inhabitants of the village. The case was submitted upon written arguments by</p>

<p>The j udgment of a court of common pleas, upon a justice’s return to a certiorari, will be reversed by the supreme court, if the common pleas err in the application of the law to the/acts of the case, where there is no conflict in the testimony.</p> <p>The temporary resumption of personal property by a mortgagor, although possession accompanied the execution of the mortgage, will be deemed fraudulent, unless satisfactorily explained; there must be a continued change of possession.</p>

<p>The judgment of a court of common-pleas, upon a justice’s return to a certiorari, will he reversed by the supreme court, if the common pleas err -in the application of the law to the facts of the case, where there is no conflict in the testimony.</p> <p>The tempory resumption- of personal; property by a mortgagor, although possession accompanied the execution of the mortgage, will be deemed fraudulent, unless .satisfactorily explained; there must be a continued change of possession. (a)</p>

<p>This was an action of ejectment, tried at the New-York circuit in May, 18-34, before the Hon. Ogden Edwabds, one of the circuit judges.</p> <p>The plaintiff claimed to recover a moiety of a lot as a purchaser at a sheriff’s sale, under three executions against Edward Burke, issued on judgments entered against him in 1825 and 1828. The sale took place in May, 1831, and the sheriff’s deed was executed 20th December, 1833, as of the date of 12th August, 1832. Joseph Burke, the father of Edward Burke, died intestate in 1830, seized of the lot in question, leaving two children his heirs at law, viz. his son Edward and a daughter named Julia Ann, the wife of Joseph Dennis. The defendant was admitted to be in possession of the whole lot. In defence, it was shown that, on the 31st December, 1831, John W. Miller and two other persons who had been appointed trustees in certain proceedings had against EdwardBurke asa non-resident debtor, commenced in March, 1830, paid to the plaintiff the amount of the money paid by him to the sheriff on the purchase of the property, together with ten per cent, advance, and took the plaintiff’s receipt therefor. The defendant also produced the following documentary evidence: 1. A deed from Edward Burke to Joseph Dennis of a moiety of the lot, bearing date 17th February," 1830, and recorded 19th April, 1830. 2. A deed of the whole lot from Joseph Dennis and Julia Ann his wife, to the defendant, dated and recorded 19th March, 1831. The consideration expressed is $3000, and the conveyance is declared'to be subject to the incumbrance of a mortgage of $2000. 3. A mortgage of the whole lot from Joseph Burke, the father of Edward and Julia Ann, to the Washington Insurance Company, for $2000, recorded 13th March, 1827, payable 2d July, 1827. 4. An assignment of the mortgage to the defendant, dated 1st July, 1833. To rebut this evidence on the part of the defendant, the plaintiff proved that, on the 18th December, 1833, the trustees of the estate gave written directions to the sheriff of New-York to execute a deed to the plaintiff in pursuance of the sale, of the moiety of the lot sold under the executions against Edward Burke ; and also that a day or two after the first publication of the issuing of the attachment against Edward Burke, which took place on the 27th March, 1830, Dennis, who was then in possession of the lot, acknowledged that he had no deed of the premises from Edward Burke; and further, that on the 11th August, 1832, Riley, the defendant in this cause, stated that he had bought the whole lot of Dennis, and had reserved $1500, part of the consideration money, to pay off the judgments. The evidence of the declarations of Dennis, in reference to his not having a deed from Burke, was objected to by the defendant, but admitted, subject to exception. On these facts a verdict was entered for the plaintiff, subject to the opinion of this court.</p> <p>could not claim any thing under Burke’s deed, as it was executed subsequent to the docketing of the judgments under which the plaintiff claimed. The trustees having redeemed the property, were entitled to a deed from the sheriff, which, instead of requiring it to be executed to themselves, they directed to be executed to the plaintiff, as they had a right to do. 1 Wendell, 46. If the trustees had the power to redeem, they might direct the deed to be executed to any one whom they thought proper to designate ; if they had not such right, then the plaintiff’s right to a deed under his purchase at the sale was unquestionable. He contended that the deed from j)ennjs to tjje defendant, though it bore date previous to the first publication of the issuing, of the attachment, did not prevent the title of the trustees attaching, inasmuch as after the publication, Dennis conceded that he did not hold a deed from Burke ; and at all events, if executed, it was not delivered, until after the publication.</p> <p>The counsel also insisted, that the revised statutes having abolished the right of a mortgagee to bring an action of ejectment for the recovery of the mortgaged premises until after foreclosure, 2 R. S. 312, § 57, a mortgagee, or his assignee in possession, cannot avail himself of the mortgage as title to bar a recovery. A mortgage is a mere lien, and of no more efficacy to prevent a recovery by a person showing title, than -a judgment would be, holden by the person in possession. If a mortgage will not authorize an action to obtain the possession, it surely can be nq defence to justify the retention of the property against a party showing title.</p> <p>The defendant has no equity, not having paid a cent for the moiety of the lot which belonged to Edward Burke, it appearing, by his own admission, that he retained $1500 to meet the claims of creditors.</p> <p>contended that the right of the plaintiff as purchaser at the sheriff’s sale was extinguished by the payment to him of the amount of his bid; and that the trustees being the representatives of the judgment debtor, had the right to redeem the property, and that by the payment of the money, they cancelled all rights under the sale, and rendered void the sheriff’s certificate, so that subsequently no deed could legally be executed by the sheriff; and if so, their directions for the execution of a deed to the plaintiff were a nullity. Besides, he insisted that the defendant, by the assignment, being a mortgagee in possession, had a valid title and could not be dispossessed. He entered lawfully under the conveyance from Dennis and wife, and the uniform current of decisions in this state is, that when a mortgagee so enters into possession of the mortgaged premises, he has the legal title.</p>

The action in this case was. brought on an instrument in writing in these words : “ For value received, the Farmers’ Woollen Manufacturing Company of Benton, Ontario county, now in the County of Yates, promise to pay Silas Hunt, or order, $300, in three equal annual instalments of $ 100 each; the first to be paid in one year from the date hereof, jvith interest.

Error from the Sullivan common pleas. The overseers of the poor of Neversink sued Benson in a justice’s court, and claimed to recover a penalty of $25 for selling spirituous liquor as a grocer, without licence ; and proved the sale of a gallon of rum at several times, to several persons, which they took and carried away from the house of the defendant.

This was an action of trespass, tried at the Albany circuit, before the Hon. James Vanderpoel, one of the circuit judges, and was brought for the pulling down, by an agent of the corporation, of a barn and sheds of the plaintiff; his damages being estimated at from $1000 to $2600.

Motion in arrest. The plaintiff declared in assumpsit. The first count stated that on, &e. at, &c. the defendants made their certain note in writing, the corporate seal of the defendants being thereto affixed, whereby they promised to pay to the plaintiff, four months after date, a certain quantity of sheetings, to be delivered at their warehouse, for value received ; and then follows the common conclusion, that the defendants did not deliver the sheeting, although often…

Error from the Tompkins general sessions. The turnpike road company were indicted for a nuisance in suffering a part of their road in the county of Tompkins to be out of repair. The indictment alleged that the road was very ruinous, miry, broken, uneven, narrow, contracted, covered with loose stones, and in very great decay, and the bridges and causeways thereon ruinous, decayed and broken down for want of due reparation and amendment.

<p>Although it is conceded that courts have the power of granting a new trial for excessiveness of damages in cases of crim. con., still it seems such power has never been exercised; and, accordingly, in this case, the court refused to set aside a verdict for $3000 damages, although it appeared that the plaintiff had reason to know of the improper conduct'of his vfife, suspected her, and yet took no measures to prevent intercourse between her and the defendant.</p> <p>It however appearing that the defendant had discovered evidence not known to him at the time of the trial, that the plaintiff had lived in a state of adultery with another woman, after his wife eloped from him, and previous to the trial, the court ordered a new trial on the ground of such newly discovered evidence, on the payment of costs.</p>

This was an action of debt, tried at the Greene circuit in October, 1833, before the Hon. Charles H. Ruggles, one of the circuit judges. The plaintiff was sheriff of the county of Greene, and Cook 4 was one of his deputies. The bond on which the action was brought was given to indemnify and save the plaintiff harmless against all damages, &c., to which he might be subjected by the acts or omissions of duty of Cook, as a deputy.

Error from the Ontario general sessions. The defendant was indicted as a justice of the peace, for not taking sufficient sureties for the appearance of a person brought before him, on the charge of having, by false pretences, obtained the signature of an individual to a promissory note as surety for the offender.

<p>The summons or attachment authorized by the 33d section of the act to. abolish imprisonment, fyc. may issue from a justice’s court, without any affidavit whatever, against a defendant residing out of the county in which process is asked.</p>

<p>Error from the Washington common pleas. This was an action of assumpsit, on a promissory note given by Allen to Catharine Becker previous to her marriage with James Webster, for $95, with interest, dated 9th September, 1813, payable 5 days after date. The suit,was commenced in the Washington common pleas in March, 1830, and the defendant pleaded the statute of limitations. The cause was heard before referees. To avoid the effect of the plea of the statute of limitations, a witness for the plaintiffs testified that he, as the agent of the plaintiffs, called upon the defendant in March, 1829, and presented the note in question for payment. The defendant at first said there was a mistake in the settlement at the time the note was given, that it was given for too much, it should not have been for more than $ 50. The defendant looked over his books of accounts and receipts, but could not find any thing to support his allegations ; and then on being asked, said that on a fair settlement he would pay what was due on the note, and would not take advantage of the statute of limitations. A few days after this interview, the witness called again on the defendant, when he told the witness that he did not owe Mrs. Becker (meaning Mrs. Webster) any thing. ' The witness then proposed to submit the matter to arbitration. The defendant said he would do so if the plaintiffs would give security for costs. Witness again asked the defendant if, on a fair settlement, he would pay what should be found to be due; to which he answered he would, if any thing was due: but nothing was due, he did not owe Mrs. Becker any thing, he had more than paid her, and she owed him. He however again promised that he would not plead the statute of limitations. At the second interview, the defendant again examined his books to see whether he could discover any mistake, but did not. The witness, on his cross-examination, stated that in the conversations he had with the defendant, the defendant invariably insisted that he did not owe Mrs. Becker any thing, but that she owed him. To show that there could have been no mistake as to the amount of the note, the plaintiffs produced a receipt in full, of the same date with the note, given by the defendant to Catharine Becker, and called the attention of the referees to an endorsement on the back of the note, acknowledging the receipt of twenty dollars, under date of 24th April, 1815, in the hand writing of the defendant. Another witness present at the second interview corroborated the testimony of the first witness, except that he did not recollect that any thing was said about the statute of limitations. When the plaintiffs rested, the defendant’s counsel moved for a nonsuit, on the ground that the evidence was insufficient to take the case out of the operation of the statute of limitations. The referees decided that the evidence was sufficient to take the case out of the operation of the statute, and made a report in favor of the plantiffs for the amount of the note and interest, deducting the payment. The referees made a special report, detailing the evidence and their decision thereon; and the common pleas, on a motion to set aside the report, refused to do so, holding that the evidence was sufficient to take the case out of the operation of the statute of limitations, and thereupon confirmed the report and rendered judgment for the plaintiffs. The defendant sued out a writ of error.</p> <p>insisted that the evidence was not sufficient to take the case out of the statute, and that therefore the common pleas ought to have set aside the report of the referees. The promise, testified to by the witness, if any was proved, was conditional that the defendant would pay whatever should be found due on a fair settlement. No such settlement, or attempt to settle, was shown.</p> <p>insisted that the report was fully justified by the evidence, and that the common pleas did right to confirm it. He relied much on the promisé of the defendant not to plead the statute in bar, and insisted that he should be held estopped by it from setting up the statute in bar of a recovery, and in support of this position cited The Utica Insurance Co. v. Bloodgood,4 Wendell, 652.</p> <p>In the case of The Utica Ins. Co. v. Bloodgood, the agreement not to plead the statute was made before the statute bar had accrued. There was a consideration for the agreement in that case; here there is none. Besides, if this promise is to operate as an estoppel, how is it to be enforced ? It cannot be by merely proving it, when made after the statute bar has become perfect. If available at all, it must be by motion to strike out the plea of the statute as put in, in bad faith.</p>

<p>To revive a debt barred by the statute of limitations, there must be either an express promise, or an acknowledgment of a present indebtedness — a subsisting liability, and a willingness to pay. (a)</p>

This was an action of ejectment, tried at the Columbia circuit in June, 1833, before the Hon. James Vanderpoel, one of the circuit judges. The plaintiffs claimed to recover a certain portion of lot number four, in the manor of Livingston, as the heirs at law of Henry Livingston, the son of John Livingston of Oak-Hill, in the same manor.

This was an action of ejectment, tried at the Columbia circuit in June, 1838, before tbe Hon. James Vanderpoel, one of tbe circuit judges. The plaintiffs claimed to recover a certain portion of lot number four, in the manor of Livingston, as the heirs at law of Henry Livingston, the son of John Livingston of Oak-Hill, in the same manor.

Demurrer to plea. This was an action on a bail-bond. The defendant pleaded that the capias, by virtue of which the defendant in the original action was arrested, and under which arrest the bail-bond was given, was tested out of term, to wit, on the 10th June. The plaintiff demurred.

<p>An action against an attorney, for monies collected by him, must be brought within six years after the money is received by him, or the plaintiff will be barred by the statute of limitations : the fact that a demand was not made within six years before suit brought, will not save the statute.</p> <p>The rule requiring a demand before suit, is for the protection of the attorney against costs, and cannot be converted into a means of annoyance.</p> <p>The statute of limitations may be pleaded by an attorney in a suit against him by his client: the doctrine that a trustee cannot plead the statute does not apply to such case.</p> <p>A demand barred by the statute is revived only by an express promise, or an admission of a subsisting debt which the debtor is willing to pay.</p>

<p>An action against an attorney, for monies collected by him, must be brought within six years after the money is received by him, or the plaintiff will be barred by the statute of limitations: the fact that a demand was not, made within six years before suit brought, will not’save the statute.</p> <p>The rule requiring a demand before suit, is for the protection of the attorney against costs, and cannot he converted into a means of annoyance.</p> <p>The statute of imitations may be pleaded by an attorney in a suit against him by his client: the doc trine that a trustee cannot plead the statute does not apply to such case. (a)</p> <p>A demand barred by the statute is revived only by an express promise, or an admission of subsisting debt which the debtor is willing to pay. (b)</p>

<p>This was an action of assumpsit, tried at the Columbia circuit in June, 1833. The plaintiff declared on three promissory notes—two dated 1st January, 1820, one for $73,76, and the other for $48,27, and the third dated 12th May, 1820, for $170,04—given by the defendant to the plaintiff without specifying when payable. The declaration also contained the common money counts. The defendant pleaded the general issue, the statute of limitations, and an insolvent discharge granted 17th March,1828. The plaintiff replied to the second plea a new promise, and to the .third that the discharge was obtained by fraud, giving specifications. On the trial, the notes declared on were produced. An attorney testified that the notes in question and certain books of account were left by the plaintiff with him for collection, and thatprevious to 1st April, 1826, and not more than ten days before that day, the plaintiff and defendant met at his office, when the plaintiff claimed a large balance to be due to him from the defendant. The defendant denied that he oioed the plaintiff any thing. The attorney told him that the demands must be • sued, unless they were renewed; to which he answered that he would not avail himself of the statute, and a suit need not be • brought on that account. The capias in this cause was issued 17th March,1832. The defendant proved his discharge. Whereupon the insolvent papers of the defendant, viz. the account of creditors, &c. were produced by the plaintiff, by which it appeared that the defendant had omitted to include the plaintiff among his creditors, and on the contrary, had expressly stated that he was not indebted to him, but that the plaintiff was his debtor. Evidence as to the state of the accounts between the parties was given on both sides. The A circuit judge charged the jury that it was for them to say whether a conditional promise had not been established— whether what was said by the defendant, as testified to by the attorney, was not tantamount to saying, “ If you prove I owe you any thing, I will pay youand instructed them that if such had been the language of the defendant, it would avoid the statute of limitations, or prevent its being a bar to the plaintiff’s recovery. He further instructed the jury, that if the defendant actually owed the plaintiff at the time he presented his petition for a discharge and his account of creditors, and knew the fact, his omission to include the plaintiff in such account was a fraud, which would avoid the discharge. He also told them that if they should find for the plaintiff, interest was allowable on the notes only from the time of demand of payment, or suit brought. The jury found a verdict for the plaintiff for $403,55. The defendant moves for a new trial.</p> <p>insisted that the declaration of the defendant that he would not avail himself of the statute, could not be tortured into a promise to pay, nor into an acknowledgment of a subsisting indebtedness, especially when accompanied, as it was, with an utter denial of owing the plaintiff any thing; and that therefore the judge erred in his instruction to the jury on the point of a new promise. He further contended that the plaintiff could not, under the pleadings in the cause, avail himself of the defendant’s promise not to plead the statute of limitations; they contain no averment in respect to it, nor is there any issue joined upon the fact. If the plaintiff can enforce such a promise, it can only be by an action on the promise, averring a breach.</p> <p>What was said by the defendant amounted to a conditional promise—“ prove your debt and I will pay it”—or what he said has no meaning Whether the words used would bear such construction was properly submitted to the jury. A conditional promise is sufficient to take a case out of the statute. 3 Wendell, 190. 2 Pick. 368. 11 Wheaton, 309. 1 Peters, 362. The condition in this case was performed by proof of the indebtedness.</p>

This was an action of assumpsit, tried at the Erie circuit in March, 1834, before the Hon. Addison G ardiner, one of the circuit judges. The plaintiffs claimed to recover a sum of money overpaid to the defendant, on the presentment by him of certain checks. The teller of the bank testified that by mistake he overpaid the defendant $100, on checks drawn upon the cashier of the United States Branch Bank,at Buffalo.

This was an action of assumpsit, tried at the Oneida circuit in April, 1834, before the Hon. EsekCowen, then one of the circuit judges. The plaintiff declared on a joint promissory note, given by Adam Petrie and JohnD. Petrie for $554,95, bearing date 27th April, 1829, payable to John Graves, orbearer, one day after date. The suit was against John D. Petrie, survivor oí Adam Petrie.

<p>Error from the Onondaga common pleas. Wisner sued Bulkley in a justice’s court, and declared for money had and received. The defendant pleaded the general issue. The cause was tried by a jury, who found a verdict for the plaintiff for $39,83, on which the justice rendered judgment. The plaintiff appealed to the Onondaga common pleas, where he was nonsuited on the opening of his counsel, who stated in substance that he would prove.that the plaintiff and two other persons were trustees, and that the defendant was collector of a school district; that a warrant had been renewed for the collection of part of a tax which had been voted by the inhabitants of the district and put into the hands of the defendant, with directions to apply the monies, when collected, to the payment of a judgment which had been confessed by the trustees in favor of one Hallock, for services done for the district. That the defendant did collect the money and applied the same to the payment of the judgment, but instead of having it discharged, procured an assignment of it to himself from the person holding it, and then caused an execution to be levied upon the property of the defendant, who, to save the same from being sold, paid the amount of the judgment to the constable in whose hands was the execution, and who subsequently paid over the money to the defendant. The plaintiff sued out a writ of error.</p> <p>that the action for money had and received lay to recover back the money which the plaintiff had been compelled to pay, to save his property from being sold under execution. He cited 1 Taunt. 359, where it was held that such action lies to recover back money paid on a threatened distress, which was unauthorized. So in 5 Comen, 488, a plaintiff was allowed to recover back one hundred dollars which had been collected from jjjm under an execution, beyond the amount actually due. He also cited the following cases in support of the proposition ^at the action for money had and received will be sustained, whenever a court of equity would compel a party to refund money unjustly and unconscientiously obtained by him: 6 Wendell, 290. 8 id. 561. Dougl. 138, 407. 2 Burr. 1005. 6 Cowen, 297.</p> <p>that the action for money had and received did not lie to recover back the money paid by the plaintiff to the constable. The judgment against the trustees had not been paid by the plaintiff, and the money was collected from him on a regular judgment and execution. The remedy of the plaintiff was an action for the breach of the promise of the defendant; and in support of these positions he cited Cobb v. Curtiss, 8 Johns. R. 470.</p>

Error from the Erie common pleas. Snyder brought replevin for a one horse wagon.

Motion in arrest. This was an action of slander. The plaintiff, after stating in the introductory part of his declaration that he had never been guilty or suspected of the crime of arson, or of being an accessary to such crime, and averring that a certain barn belonging to him had been burnt, charged the defendant in the first count of the declaration with saying to him, “ you burnt your barn to cheat the insurance company,” innuendo that the plaintiff had been guilty of the…

Error from the superior court of the city of New-York. Lamb was sued on a guaranty given by him in these words: “ Messrs. Colemard & Kleffler—I do hereby guarantee that George C. Lamb shall duly account with you for all merchandize and proceeds of merchandize which you may place in his hands for sale during three months from the date hereof, and that he shall so account on demand.

. \ ' Demurrer to plea. The plaintiff declared on a contract made the first day of October, 1828, by which the defendant engaged to find timber for the frame of a house arid to build a . house for the plaintiff, of certain dimensions, the whole to be done before the close of the year 1829. In consideration of which, the plaintiff was to pay a certain sum, payments to be made as the work progressed.

<p>Error from the Albany common pleas. A. & W. Wilson brought an action of trespass quare clausumfregit in a justice’s court, against Saunders, who pleaded the general issue. The cause was tried and the plaintiffs obtained, judgment. The defendant appealed to the Albany common pleas, and on the trial of the cause, in that court, after the plaintiff had rested, the defendant offered to prove the locus in quo a private road, legally laid out upon his application and for his benefit, with the assent of the owner of the land, the landlord of the plaintiffs, who are the lessees of such owner; which evidence was objected to as inadmissible under the- general issue. The court sustained the objection and the defendant excepted. The plaintiffs obtained a verdict, and the defendant sued out a writ of error.</p>

Error from the Orange common pleas. Thompson and wife commenced proceedings for partition of lands by petition, in which they stated the rights of the parties to be as follows : that the petitioners, in right of Lucinda the wife, were entitled to thirteen eightieths, (£$,) Mary Wheeler to -J-f ths, and Nathan R. Wheeler, Henry P. Chapman Wheeler, and Nehemiah Haden Wheeler, each to £fths of the premises in question. The defendants pleaded non tenent insimul.

<p>A promise to answer for the debt of another is void, unless it be in writing, and the writing on its face express the consideration of the promise. Such was held to be the law in this case since the revised statutes went into effect. Previous to those statutes it was held sufficient if the consideration conld be inferred, implied or spelt out from the terms of the agreement.</p> <p>One of several administrators may bring a suit in his own name on a note payable to his intestate or bearer, and is not bound to prosecute in his representative character, nor to join his co-administrator as a plaintiff. The nonjoinder of a co-administrator can be taken advantage of only by plea in abatement.</p>

This was an action of ejectment for the recovery of a lot of land of 420 acres, except 48 acres, in the south-east corner thereof. The plaintiffs showed title and rested. The defendant produced in evidence a deed from the comptroller of the state to James Hooker and Nathaniel P. Tallmadge, bearing date 27 th June, 1828, conveying to them the premises in question, in pursuance of a sale for non-payment of taxes.

Demurrer to replication. The plaintiffs declared in coveriant, for that on the 8th March, 1821, the defendant assigned to them a bond and warrant of attorney given by William Jinks and Lyman Jinks, to secure the payment of $600, and authorized judgment to be entered thereon and the money to be collected ; and covenanted that the Jinks should pay the judgment so to be entered, or that, on their default, he would pay it, and that the plaintiffs should collect the whole amount…

Plea in abatement. The plaintiff declared in assumpsit for a debt of the wife dum sola, suggesting her death between the commencement of the suit and the filing of the declaration. The husband pleaded the death of the wife in abatement ; to which plea the plaintiff demurred. insisted that the provision of the revised statutes, that an action shall not abate by the death of one of several defendants is decisive of this case, 2 j?. S. 386, § 1.

Demurrer. The plaintiffs declared as the endorsees of two promissory notes made by the defendant, dated 20th April, 1828, payable to W.W. Edwards & Co. or order, one in six moúths and the other in twelve months after date'.

<p>This was an action of assumpsit, tried at the Greene circuit in October, 1833, before the Hon. Charles H. Ruggles, one of the circuit judges.</p> <p>The suit was brought upon a note, made by one Edward Shook, for $1000, dated 20th February, 1833, payable sixty days after date to the order of Jacob I. Stall &f Co., and endorsed in the name of the firm by Henry Teats, junior, one of the members of the firm, which consisted of Jacob I. Stall, Henry Teats, junior, and John J. Traver. The note was discounted by the bank, and when due it was protested for non-payment, and notice of protest sent per mail. Jacob I. Stall alone defended,and rested his defence upon two grounds: 1. That the note was made, and the name of the firm subscribed to it for the accommodation of the maker, without his knowledge or assent; and that, consequently, the name of the firm being pledged in a matter not relating to the business of the firm, the plaintiffs were not entitled to recover ; and 2. That due notice of non-payment had not .been given. As to the first ground of defence, it appeared, that the note was drawn and endorsed for the sole benefit of the maker, who received the whole avails of it; that Teats, who endorsed the name of the firm, was the brother-in-law of the maker; that Traver took an interest in procuring the note to be discounted, and that Stall, the partner who defended the suit, knew nothing about the transaction. One Reynolds was employed as an agent to procure the note to be discounted, who proceeded to Catskiii and offered the note to the cashier for discount, Saying he wanted him to do a note of Shook’s; but he could not state what he told the cashier as to whom the money was for, though he said he did not tell him that Shook wanted the money. The note was discounted, and the avails paid to Reynolds, from whom it passed to the maker of the note. Traver told Reynolds he wanted part of the money, and it appeared that the maker let him have $200 of it, which however he repaid in the course of a few days. As to the notice of non-payment, the following facts appeared: when the cashier took the note, he inquired of Reynolds who the firm of Jacob I. Stall & Co. consisted of, and witness told him who they were, where they lived, and where their store was ; that the store was at Jackson Corners where Stall lived, and Traver resided on the wharf at Red Hook. To the enquiry of the cashier, where he should direct his letters if he should wish to write ? Reynolds told him that by directing letters to Red Hook, they would get them sooner than if directed any where else. The notice of non-payment was directed to John I. Stall Co. at Red Hook, and sent per mail the day of protest. There are four post-offices in the toion of Red Hook, viz. Upper Red Hook post-office, at the upper village ; Tivoli, at Upper Red Hook landing; Rarry town post-office, at Lower Red Hook landing ; and Red Hook post-office, at the village of Lower Red Hook. Traver resided in the winter of 1833, at the Upper Red Hook Landing, the post office at which place called Tivoli, is nine miles distant from the post office called the Red Hook post office. The judge charged the jury that if the cashier enquired of Reynolds as to the residence of the defendants, and what place was nearest and most proper to direct a notice to and was informed by him that, Red Hook was such place, it was, under the circumstances, sufficient diligence on the part of the holders of the note and that the notice sent to Red Hook was sufficient to charge the endorsérs. And upon the other point, he instructed them that {f plaintiffs had any knowledge that the note was endorsed by Teats without the knowledge of Stall, for the benefit of another person, they could not recover ; but that the plaintiffs, being the holders of the note as negotiable paper, were entitled to recover against the defendant Stall, if they received the note in good faith, without knowledge that Stall had not assented to the endorsement, although it was endorsed by one of the partners in the name of the firm, without his knowledge or assent, and for the accommodation and benefit of the drawer alone. The defendant excepted to the charge. The jury found a verdict for the plaintiffs. The defendant asks for a new trial.</p>

This was an action of trespass, tried at the Otsego circuit in April, 1834, before the Hon. Robert Monell, one of the circuit judges. The defendant sold property of the plaintiff under a distress warrant, to satisfy a claim of rent, for which an'action ofirespass was brought.

This case came up by certiorari from the Albany general sessions. John Ellis, Davis Ellis and David G. Herrick were put on trial for an assault and battery and riot committed by them. After the district attorney rested,the counsel for the defendants offered to prove that on the day preceding the trial, two of the defendants,viz. Jo/tM.

This was an action of assumpsit on a promissory note, dated 6th January, 1832, and payable 1st June, 1832, given by the defendants to John Simplot or hearer. The plaintiffs declared as the holders of the note by transfer.

Streets and public squares. In June, 1834, the common council of the city of Albany directed the opening of a public square between Pine and Steuben streets.

Error from the Monroe common pleas. The plaintiff as ‘executrix of D. Caswell, brought an action of assumpsit against Districh for the rent of certain premises. The defendant pleaded the general issue.

This was an action On the case tried at the Monroe circuit, in April, 1832, before the Hon. Aüdison Gardiner, one of the circuit judges. The suit was brought for the recovery of damages for the flowing of lands, by the erection of a dam by the defendant, in the Genesee River. The plaintiff showed title to the premises, and proved the injury alleged in his declaration. The dam complained of was erected in 1826, abutting upon the land of the plaintiff and partly placed upon it.

Error from the Albany mayor’s court. Staats sued Thompson in the justice’s court of the city of Albany for practising physic, not being authorized by law. It was proved that the defendant visited a sick man, felt his, pulse and gave him medicine, which he took, and charged and received two dollars from the patient.

This was an action on the case tried at the Albany circuit in March, 1833, before the Hon. James Vanderpoel, one of the circuit judges. The declaration charged the defendant with pulling down five dwelling houses. On the trial it appeared that the dwelling houses consisted of one building, originally erected as a tan-house, 70 feet long, 12 feet high, which was divided into five apartments.

This was an action of covenant, tried at the New York circuit in April, 1834, before the Hon. Ogden Edwards,' one of the circuit judges. The plaintiff declared on a lease under seal, made by him to Edmund T. Carpenter, bearing date 1st April, 1829, demising a dwelling house and lot of ground of 5£ acres, situate in the twelfth Ward of the city of New York, for the term of six years, subject to an annual rent of $325,to be paid quarterly.

This was ah action of ejectment for dower. The plaintiff, in her declaration, claimed her dower in the one undivided third part of the equal undivided one half of a certain farm situate in the' town, &c. containing 118 acres, more or less. It turned out in evidence that the husband of the plaintiff died in possession of the half of a farm, which he claimed as his own, and that such moiety contained only 54 acres.

<p>Where a dontract is entered into between two parties, the object of which id to violate the provisions or the spirit andpolicy of a public statute, and one pays money to the other in furtherance of such contract, and the contract is in part executed by the accomplishment in part of the original design, leaving however a portion of thé money advanced unexpended, an action will riot lie to recover lack the unexpended balance.</p>

This was the trial of the prisoner on an indictment for murder, at the Onondaga oyer and terminer in September, 1835, before the Hon. Daniel Mosely, one of the circuit judges, presiding.

This was an action ,on a covenant of warranty of title in a deed of lands from which the plaintiff was evicted, tried at the Tompkins circuit in November, 1833, before the Hon, Robert Monell, one of the circuit judges. On the trial the following questions arose: I. The plaintiff proved that when the ejectment suit was commenced against him, by virtue of which he was evicted, he gave verbal notice of the suit'to his grantor, and requested him to attend to the defence.

Error from the superior court of the city of N. York. On 8th November, 1832, William H. Imlay, residing at Hartford, in Connecticut, sent an order to Parkhill, Robertson and Kelso, a mercantile firm, transacting business at Richmond, in Virginia, to the effect: that if there was a vessel at Richmond bound to Hartford, which would take a cargo of wheat, at not to exceed 10 cents per bushel freight, and the wheat could be procured of good quality, they might send a cargo;…

<p>Where the rents and profits of an estate are given to a father during his life, and the remainder in fee is given to his children, and it be necessary to the support and maintenance of the tenant for life, and his family and the education of his children, that the estate should be sold, a private act of the legislature will be passed, authorizing the sale of the property for the above purposes, and for the payment of debts incurred by the tenant for life, in the necessary support of himself and family, and in the education of his children.</p> <p>Such act is not unconstitutional, although its operation is limited to particular property, and bears upon a few individuals only, and does not extend to every other case of a like character.</p> <p>If the sales of property authorized by such act require the assent of the chancellor, and orders are made by the court of chancery to carry the act into effect, such orders cannot be called in question by the children, or those in remainder, in an action of ejectment against a bona fide purchaser at such sales, on the ground of excess of authority, on the part of the court of chancery; the orders of that court not being void, the remedy, if any, is in a court of equity, or in a court of review.</p>

This was an action of ejectment tried at the Cortland circuit in June, 1834, before the Hon. Robert Monell, one of the circuit judges. The suit was brought to recover two-fifths of a lot of land whereof JRevilo Ford, the father of the plaintiffs, died seized in July, 1820, leaving the plaintiffs and three other children his heirs at law.

This was a certiorari to a militia regimental court martial in the county of Monroe, instituted for the trial of delinquents and delinquencies in „the 178th regiment of infantry. A return was made to the president of the court martial of delinquents in a company belonging to that regiment, in which Rathbun,the party prosecuting the certiorari,was returned for unsoldier like appearance and disobedience of orders, at a general parade of the regiment.

Error from the superior court of the city of New-York. The National Insurance Company insured a brig belonging to the plaintiffs, on time, for one year from 8th February, 1832, the vessel being valued at §6000.

Error from the Cortland common pleas. Lynde sued out an attachment against Montgomery from a justice’s court, on the ground that Montgomery kept himself concealed to avoid the service of process.

<p>Where premises are held by a tenant for a term of years in the city of New-York, and a portion'thereof is taken in the opening or widening of a street, the tenant is entitled to an abatement of the rent reserved in the lease, although by the improvement the part left is rendered more valuable than the whole premises were previous thereto.</p> <p>The apportionment of rent in such case is between the part taken and the residue of the demised premises, according to the value of the several parts ; and the abatement takes place from the time of the confirmation of the report of the commissioners of estimate and assessment.</p> <p>The apportionment of rent is a damage to the landlord, and should accordingly be allowed by the commissioners of estimate and assessment; so on the other hand, the abatement of the rent should be deducted from the damage of the tenant.</p> <p>A plea is bad which, in its commencement, purports to be -an answer to the whole, but is in truth an answer to only part of a declaration.</p>

Error from the supreme court of the city of New-York. This was an action of trover, brought by E. Everett, against F. and N. Saltus, for a quantity of lead. In August,1825,Bridge Of Vose, merchants at New-Orleans, shipped 179 pigs of lead on board the brig Dove, of which William Collins \yas master, consigned to Messrs. Tufts, Everleth &f Burrell,oí New-York, on account and risk of Otis Everett, the plaintiff, to whom they were referred for instructions. .

Error from the Monroe common pleas. On the 6th July, 1833, Luce sued out an attachment against Clark under the thirty-third section of the act to abolish imprisonment, &c. Session Laws of 1831,p. 403,which was issued by a justice of the peace of the county of Monroe, founded on an affidavit of Luce that Clark was a non-resident of that county, and was indebted to him in the sum of about $50, over and above all discounts, and that such indebtedness arose on contract.

Error from the superior court of the city of New-York. This was an action of assumpsit, brought to recover the amount of a bill'of exchange, drawn in New-York on a mercantile house in Philadelphia, and deposited by the plaintiffs with the Merchants bank for collection, which was lost to the plaintiffs in consequence of the omission to have the bill protested for non-acceptance, and notice thereof given to the endorsers.

<p>On a certiorari to the municipal court of Brooklyn, this court, being required to proceed and give judgment according as the very right of the case may appear, will look into the evidence to see whether there is any foundation for the judgment; but where there is evidence on both sides, a judgment will not be reversed, although upon reviewing it this court come to a different conclusion from that arrived at by the finding, upon which the judgment was rendered.</p> <p>It seems that the same rule should govern in a certiorari to the marine court of the city of JNew-Tork. In both these cases the rule being different from that which prevails in this court, on writs of error to the common pleas, where the action was originally commenced before a justice of the peace.</p>

This was an action of assumpsit, tried at the Seneca circuit in November, 1834, before the Hon. Daniel Moseley, one of the circuit judges.

Error from the superior court of the city- of New-York. Tucker and Carter being ship chandlers, in May, 1831, furnished rigging and other articles, to the amount of $3132,03, for a ship then building for Rathbone and Banks. The goods were charged to skip Nashville and owners, and were furnished at a credit of six months from the average date of the bill. The contract was made with the plaintiffs by an agent of the defendants of the pame of Price.

This was an action of debt, tried at the New-York circuit in October, 1834, before the Hon. Ogden Edwards, one of the circuit judges.

This was an action on fixe case, to recover damages for the flowing of lands by means of a dam, tried at the Rensselaer circuit in September, 1833, before the Hon. James-Vanderpoel, one of the circuit judges. The plaintiff became the owner of- the premises flowed ,in 1832.

This was an action of assumpsit, tried at the New-York circuit in March, 1833, before the Hon. Ogden Edwards, one of the circuit judges. The suit was against the defendant, as the endorsee of a bill of exchange, drawn at Key West, in Florida, on a mercantile house at Boston, dated 31st March, 1831, payable to the defendant 60 days after sight, described in the declaration as the first of a set of three bills, the second and third being unpaid.

<p>Error from the superior court of the city of New-York. This was an action on a policy of insurance on three fourths of a schooner, effected by Ogden and M’Comb, as the agents of the owner—logs payable to them. The policy was on time for six months from the 17th November, 1829—sum insured, $1800. The vessel sailed-the 26th November, on a voyage from New-York to Charleston, from thence to Norfolk, and from thence to St. Thomas, in the West Indies. Whilst going into Charleston harbor and while the vessel was in charge of a pilot, the small bower anchor was lost on the outward bar. The schooner did not go up to the city, but discharged her cargo, which consisted of stone, about one and a half miles from the city. The vessel remained in the harbor five or six days; the pilot engaged to get up the anchor, but did not do so; and the wind being fair, the schooner sailed for Norfolk, where she arrived in safety. On her arrival there, the master made inquiries for an anchor, but could not procure one of a suitable size; those he saw were too heavy or too light. He remained at Norfolk nine or ten days, took in a cargo of shingles, and proceeded on his voyage to St. Thomas on the 7th January. Three days afterwards the schooner sprung a leak in consequence of a heavy cross sea, and in three days more she encountered a severe gale of wind with a heavy sea; her sails were split and the mainmast sprung, and the vessel beeame very leaky. She however- succeeded in reaching St, Thomas on the 25th January. The master, after making inquiries of mechanics, made an estimate that the vessel could not be repaired and rendered seaworthy for less than $1700. The cargo was discharged, and a survey was taken of the vessel by three surveyors appointed by the U. S. consul, who reported that the repairs might be made for $800 or $900. The master was wholly destitute of funds; the consignees of the cargo refused to make advances, the freight having been previously drawn for, and they holding a protested draft for the same; and money could not be obtained on bottomry, although the master attempted to raise money in that way for the purpose of making repairs. Under these circumstances the vessel was sold at auction, and brought only the. sum of $388,32. The plaintiffs abandoned as for a total loss. The insurance company offered to pay the damage as estimated by the surveyors at St. Thomas; which offer the plaintiffs refused, and brought their suit. The counsel for the defendants requested the judge to charge the jury, 1. That St. Thomas being the port of destination, the inability of the master to procure there the necessary funds for repairing the vessel was not a sufficient ground of abandonment; 2. That the policy being on time, the warranty of seaworthiness attached as a condition precedent at the commencement of each voyage during the period which it covered, and that it being admitted that the vessel was unseaworthy from the want of an anchor when she left Charleston and also when she left Norfolk, the defendants were discharged from all subsequent perils ; or if the judge was of a different opinion, then that he should charge that the evidence was not3 sufficient to excuse the laches of the master in not recovering his anchor or obtaining a new one at Charleston, and that therefore the defendants were discharged from all subsequent liability; and 3. That if the judge should be of opinion that the laches of the master at Charleston were sufficiently excused, then that he should charge the jury that it was the duty of the master, after his arrival at Norfolk, if an anchor could not there be obtained, to procure one from a neighboring port; and if the jury should be of opinion that, by sending to Baltimore or New-York, or any other neighboring port, the master could have obtained an anchor without an unreasonable delay of the voyage, their that the defendants were entitled to their verdict. The judge charged the jury that the inability of the master to procure the necessary funds at St. Thomas was a valid cause of abandonment, and further instructed them that the vessel continued to be covered by the policy during the voyage, and that the plaintiffs were entitled to recover if the negligence and laches imputed to the master were sufficiently excused, and that the material question of fact on that point was whether the master made use of due diligence at Norfolk to obtain an anchor. The defendants excepted.to the charge. The jury found a verdict for the plaintiffs for $2161, on which judgment was rendered. The defendants sued out a writ of error.</p> <p>insistéd that seaworthiness is a warranty ; and if it be not complied with, the insurer is discharged, whether the loss happen from a breach of that particular warranty, or from any other cause. A . misrepresentation avoids a policy ; so does a departure from the regular course of a voyage; and a breach of warranty of seaworthiness should have the like effect. 1 Phil, on Ins. 117. 4 Esp. N. P. R. 25. If an anchor could not be obtained at Norfolk, the vessel ought to have remained there until it could have been procured from some other place. Secondly, he insisted that the want of funds of credit of the assured to obtain needful repairs at any of the ports 'of the voyage, as distinguished from ports of necessity or intermediate ports, is not a cause for abandonment, nor a peril assumed by the insurers. The assured may abandon when the repairs will exceed one half the value, or if the vessel cannot be repaired without any fault on his part. Here the assured was grossly in fault. St. Thomas was one of the ports of the voyage, and not a port of necessity ;■ the master, if not supplied with funds, should have been furnished with the means of credit, instead whereof the very freight was hypothecated. In Van Buren v. Wilson, 9 Cowen, 168, this court say, it is the duty of owners to furnish the masters of their vessels with the means of obtaining all the credit which the exigencies of the voyage may require. The mere want of funds can never be good cause of abandonment.</p> <p>admitted that the vessel must be seaworthy at the commencement of the risk ; but contended that if she subsequently became unseaworthy, the insurer was not discharged, if the insured used due diligence in making the necessary repairs, or in again rendering her seaworthy. That the vessel in this case was unseaworthy at the commencement of the risk was not pretended on the trial, and the question of diligence to replace the lost anchor was submitted to the jury, who found upon this point for the plaintiffs, and their decision cannot be reviewed upon a writ of error. He admitted that every breach of an express warranty avoided a policy, but contended that a misrepresentation has not such effect, unless the damage which occurs grows out of the misrepresentation. A continuing implied •warranty of seaworthiness is not a condition precedent, but in the nature of a misrepresentation, and unless the loss which occurs arises from unseaworthiness, the insurer is liable. The case of Paddock v. The Franklin Insurance Company, 11 Pick. 227, goes far to settle the question that the obligation of the assured to keep a vessel seaworthy does not operate as a condition precedent, but like a misrepresentation, where the insurer is not liable unless the damage grows out of the misrepresentation. In support of these propositions, he cited 1 Manning & Ryland, 673, 17 Com. Law R. 283, S. C., 2 Barn. & Ald. 320, and Hughes on Ins. 269. He further contended that the master having used his best exertions to obtain money at St. Thomas to repair the vessel, and having failed to do so, was authorized to sell the vessel, and that the insurer was liable. In support of which position, he cited The Patapsco Ins. Co. v. Southgate, 5 Peters’ U. S.R.604, 2 Phil. on Ins. 115, 7 Wendell, 84.</p>

Error from the superior court of the city of New-York. This was an action of ejectment to recover the dower which had been admeasured to Mary Scrugham, as the widow of her late husband, William W. Scrugham. The defence set up was, that three days before the marriage, the husband executed a deed in trust for the benefit of his children, by which he conveyed all his real estate to the grantees in such deed, of whom the plaintiff was one.

Error from the superior court of the city of New-York. Spencer and two others brought an action against Simonson, as a stockholder in the Harlaem Canal Company, to recover ' $200, the nominal amount of stock owned by him, as part and parcel of a demand which the plaintiffs had against the company.

Error from the Madison common pleas. Kilts sued Goff x in a justice’s court in trespass for taking and destroying a swarm of bees and the honey made by them. The swarm left the hive of the plaintiff, flew off and went into a tree on the lands of the Lenox Iron Company. The plaintiff kept the bees in sight, followed them, and marked the tree into which they entered.

Statute of limitations. The suit in this case was brought for services rendered, for board of workmen in defendant’s employment, for cattle and farming utensils sold and delivered, and for monies paid in the business of the defendant.

<p>An amendment is allowable in a justice’s court by adding a plea, after issue joined, upon terms.</p> <p>Upon a plea of former recovery, a justice is bound to consider the plea proved, when the cause has been tried before himself and judgment rendered by him, although not formally entered upon his docket.</p> <p>Demands cannot be split up and several suits brought upon them; a recovery in one of such suits is a bar to a recovery in another.</p>

The plaintiff claimed to recover $300, the rent of a sawmill occupied by the defendant. The defendant proved payments to the amount of $223, and claimed an allowance of $ 200 besides, because the mill had not been put in good repair previous to his taking possession, according to agreement The cause was heard by referees, who allowed the $200, which, added to the payments, left a balance in favor of the defendant of $ 123, for which they made a report in his favor.

Error from the Suffolk common pleas. Parsons sued Miller in a justice’s court in an action of trespass for taking and carrying away several loads of sea-weed from a place called Fire Place Beach.

Error from the Rochester mayor’s court. The defendant was sued in a justice’s court for selling without licence spirituous liquors, and permitting the same to be drank in his house, and a penalty of $25 claimed of him. The defendant pleaded the general issue. The cause was tried by a jury.

<p>This was an action of trespass, tried at the Oswego circuit in June, 1834, before the Hon. Hiram Denio, one of the circuit judges.</p> <p>The suit was brought for the taking of a quantity of red freestone from the quarry of the plaintiff, used in the construction of locks on the Oswego Canal. The stone was taken by the direction of the defendant, who was the chief eng, neer in the construction of the canal. One of the canal commissioners frequently saw the work while in progress; -he gave no orders to procure stone from any lands other than such as were appropriated for the line of canal, but testified that, had the engineer represented to him that it was indispensable that stone should be procured from the plaintiff’s quarry, he would have sanctioned the measure. He further testified, that the chief engineer “ had in a measure the supervision of the work and material” for its construction. The plaintiff produced in evidence a certificate of the defendant as to the quantity of stone taken, in which the defendant stated that the stone had been taken by his directions, under the supposition on his part that the quarry was on lands belonging to the state ; and it was proved that a tract of land belonging to the state did adjoin the quarry of the plaintiff. The plaintiff offered to prove that the canal appraisers had refused to make him any allowance for the stone taken ; which evidence was objected to and rejected. A motion was made for a nonsuit on the ground that the stone was necessary for the construction of the works on the canal, aud that the defendant, as engineer, had acted in good faith in directing it to be taken. The motion for a nonsuit was denied, and the jury, under the charge of the judge, found a verdict for the plaintiff for $174.52. The defendant moves for a new trial, which is resisted on the ground that the power to enter upon the lands of individuals, and take materials for the construction of the canals, is confided solely to the canal commissioners ; and being a personal trust, can not be delegated to others. The engineers are selected and employed by the commissioners ; they may enter and take materials for repairs, but not for the original construction of the canals.</p>

This was an action of trespass, tried at the Oswego circuit in June, 1834, before the Hon. Hiram Benio, one of the circuit judges. The suit was brought for the taking of a quantity of red freestone from the quarry of the plaintiff, used in the construction of locks on the Osiuego canal. The stone was taken by the direction of the defendant, who was the chief engineer in the construction of the canal.

This was an action of assumpsit, tried at the Allegany circuit in September, 1834, before the Hon, Addison Gardiner, one of the circuit judges. The suit was brought to recover monies collected by one Wilson, a deputy of the defendant, while the latter was sheriff of Allegany. On the 7th October, 1820, Wilson received from the plaintiff a ft. fa. in his favor against M. Van Cam-pen, directing to be levied $615,04, with interest from 15th February, 1820.

The prisoner was convicted, at the Ontario general sessions, on an indictment for embezzling a ten dollar bank-bill enclosed in a letter entrusted to him to carry to the post-office. A traveller stopped at an inn kept by a Mrs. Mann, at Geneva, and gave the letter enclosing the bill to one Franklin, who had the principal management and superintendence oí the house ; informing him that it contained money, and desired him to send it to the post-office.

This was an action of ejectment, tried at the Madison circuit in March, 1827, before the Hon. Nathan Williams, then one of the circuit judges. The lessor of the plaintiff, Thomas Merrick, 2d, claimed to recover 20 acres of land,conveyed to him by his father, Charles Merrick, by deed bearing date 25th April, 1807.

This was an action of ejectment, tried at the Greene circuit in April, 1834, before the Hon. James Vanderpoel, one of the circuit judges. The plaintiffs showed title to the one sixth of a lot of land in the Hardenburgh patent, called lot No. 43, containing about 1500 acres, under a deed executed by John Emmons, to Nicholas ICiersted, bearing date 27th December, 1792, and claimed to recover 2643 acres of land, of which the defendant acknowledged himself to be in possession.

This was a demurrer to a declaration in ejectment. The cause of demurrer relied on by the' defendant’s counsel is, that the declaration, though in the names of two plaintiffs, does not contain a joint count, showing that the plaintiffs have a joint interest or have sustained a. joint injury; it contains two separate counts, one in the name of Smith, one of the plaintiffs, and the other in the name of Kniffin, the other plaintiff. The case was submitted without argument.

The defendant was brought up on an attachment for disobedience to a subpoena served upon him to attend as a witness for the plaintiff in a cause oí Kelly v. Be Forrest, noticed for trial at the Warren circuit, on the first Tuesday of June last. The defendant was duly subpoenaed on the 26th May, (13 days before the circuit,) at the city of New-York, where he resided. Ten dollars were given to him to pay his expenses. He did not attend.

This was an action of ejectment, tried at the Greene circuit, in April, 1834, before the Hon. James Vanderpoel, one of the circuit judges. The plaintiff’s showed title in themselves to an equal undivided one-sixth part of a lot known as No. 43, in great lot No. 20, of the Hardenbergh patent. One fourth of the title of the plaintiff’s.was under a deed given by two executors of the last will and testament of Nicholas ICiersted, executed 13th May, 1795.

<p>A deed to a husband and wife and to six of their children, naming them, and to such other children of the marriage as might be subsequently born, creates a tenancy in common between the husband and wife and the children; the husband and wife being considered in law but as one person, take, while there are six children, one-seventh of the estate granted, and when two more children are born, take only one-ninth of the estate.</p> <p>As between themselves, the husband and wife hold neither as joint tenants or as tenants in common—each is seized of the entirety per tout et non per my, and for that reason the husband alone cannot alien the estate; but having the absolute control of the estate during his life, he may convey or mortgage it during that period.</p> <p>A mortgagor, in an action against him for the recovery of the premises, is estopped from denying that he had title at the time of the execution of the mortgage; nor is he permitted to set up title in a stranger.</p>

This was an action of debt, brought against the defendant as sheriff of the county of Oneida, to recover the penalty of $250, given by statute against a sheriff who makes deliverance of goods taken under a writ of replevin before inquiry, when a claim of property is interposed, tried at the Oneida circuit in April, 1834, before the Hon. Esek Cowen, then one of the circuit judges.

This was an action of debt, tried at the Allegany circuit in March, 1836, before the Hon. Addison Gardiner, one of the circuit judges.

This was an action of covenant on a lease executed by Daniel Ferguson and Nancy Ferguson to Albert W. Lothrop, bearing date 21st May, 1832, demising certain premises until 1st April, 1833, reserving a rent of $250, of which $50 was to be paid in repairs, and the residue in cash in four instalments, on the first days of September, December, March and April succeeding the date of the lease.

Error from the Montgomery common pleas. Gross brought .an action of replevin against Fonda and Hoag, for taking a quantity of household furniture, in the use and occupation of one Van Horne. The furniture was sold at sheriff’s sale in 1829, on several executions against Van Horne, and bought in by C. E. Yates, who paid the amount of his bid. it did not appear that Yates was a plaintiff in either of the executions.

Error from the Montgomery common pleas. Maria Van Horne, an infant, by her next friend, brought an action of replevin against Fonda and Hoag, for the taking of two cows and a calf. They were taken by Hoag, a deputy sheriff of Montgomery, by the direction of Fonda, by virtue of an execution issued on a judgment in favor of Fonda against A. Van Horne, the father of the plaintiff, obtained in January, 1833.

Error from the Oswego common pleas. Bakeman sued Pooler in a justice’s court, and declared, among other things, on a promissory note made by the defendant for six dollars, dated 13th June, 1833, payable 30 days after date. To the count on the note, the defendant pleaded a tender, and brought the money into court.

Error from the Cortland common pleas. Kendall declared in the court below on a promissory note made by G-age, payable to William Castle or bearer.

Error from the Cortland common pleas. Kendall declared in the court below on a promissory note made by Gage, payable to William Castle or bearer.

This was an action of ejectment, tried at the Madison circuit in September, 1834, before the Hon. Hibam Denio, one of the circuit judges. The parties are the owners of adjoining farms. The farm of the plaintiff lies to the north of the farm of the defendant. The length of line between the two lots is 206 rods.

This was an action of ejectment, tried at the Orange circuit in September, 1834, before-the Hon. Charles H. Rugóles, one of the circuit judges.

Error from the Broome common pleas. Finch sued Ackerman in a justice’s court in the county of Broome, and sued out a summons under ■§> 32 of the act to abolish imprisonment, &c. Session Laxos of 1831,p. 403, returnable in three days.

Deliveby of deed. This is an action for the breach of the covenant of seisin in a deed of lands executed by the defendant, bearing date 22d May, 1835. The defendant put in seven pleas, three of which, viz. the fourth, fifth and seventh, resulted in demurrers.

<p>Landlord and tenant. Comstock commenced proceedings against Hunt, under the statute allowing summary proceedings, to recover the possession of land, 2 R.S. 512, §28, alleging, that Hunt was his tenant of certain premises, and held over after the expiration of his term. The case was tried by a jury, who found a verdict in favor of the landlord, and the judge before whom the proceedings were had issued a warrant for the removal of Hunt from the premises. Hunt sued out a certiorari, from the return to which the following facts appear : on the 11th October, 1831, an instrument in writing was entered into by Comstock, whereby he "agreed to let Hunt have the use of the house that he lived in on the farm that Comstock had bought of him; also a garden, and the privilege of firewood,and certain other privileges, for the term of one year, and until Comstock should pay him the money on a certain mortgage that he held against him. On the 5th February, 1833, Comstock made an affidavit, setting forth the above agreement, and stating that on the 19th November 1833, he had tendered to Hunt $1360,50, being the whole amount of the principal and interest due upon the mortgage referred to in the agreement, and demanded possession of the house,&c. which Hunt refused to surrender; that on the 5th January, 1833, notice to remove was served upon Hunt, but that he had not removed, and remained in possession, holding over. Upon which he applied to a judge of the county courts of Onondaga, for a summons, requiring Hunt to remove, or shew cause why possession should not be delivered to the applicant. On the day appointed, Hunt appeared, and objected to the sufficiency of the affidavit made by the applicant, upon the following grounds : 1. That the terms upon which the premises were rented, and the rent were not stated ; ,2. That it does not appear by the affidavit whether the money secured by the mortgage was or was not due when the tender of payment was made; and 3. That a case is not made out by the affidavit, shewing the applicant to be entitled to the remedy sought by him, or giving the judge jurisdiction in the matter; which several objections were overruled by the judge. Hunt then made an affidavit denying the facts upon which the summons was issued, and the case was subsequently tried by a jury. On that trial Hunt produced the mortgage referred to by Comstock, bearing date 11th October,1831, conditioned for the payment of $2000, in manner following: $200 on 1st" February, after date of mortgage, and the residue in 4 annual instalments.</p>

Error from the Lewis common pleas. J. Mappa, as administrator, &c. of A. G. Mappa, deceased, recovered a judgment against Alpheus Pease before a justice of the peace.