Volume 16 — Johnson's New York Reports

IN ERROR, on certiorari to a Justice’s Court. The defendant in error brought an action, in the Court below, against the plaintiff in error, for goods sold and delivered. The goods in question were the property of one Murray, and were sold by the plaintiff 'helow as an auctioneer.

<p>TALCOT, for the plaintiff, moved to bring on the argtiment of this case, on the usual notice, and affidavit of service.</p>

MOTION op the part of the defendant to change rnt zv> . ° venue in this cause. The affidavit of the defendant stated, that he had a good and substantial defence on the merits ; but did not add, “ as he was advised by counsel.”

FOOT, for the defendant, móved for an order for a perpetual stay of the execution issued in this cause ; and read a number of affidavits in support of the motion, relying on the case of Smith v. Page, (15 Johns. Rep. 395.)

ON the petition of the above named creditors, and affidavits of their debt, and of the absence of the defendants out of the state, pursuant to the act for relief against absconding and absent debtors, (24 sess. ch. 49.) the Recorder of the city of New-York, on the sixth day of November last, issued an attachment against the estate, real and personal, of the defendants, directed to the sheriff of the city and county of New-York.

<p>AN act of the legislature was passed the 28th of March, * 1817, entitled, “ an act to amend the act incorporating the Never sink Turnpike Road Company, and for altering the name and style of the said company.” (40th sess. ch. 134.) the first section of the act, the council of appointment was authorised to appoint three freeholders to make an equitable and proportionate assessment on such land, in the 1 e tti , a i,- , counties oi Ulster, bullivan, Delaware, and Broome, described in the act, as shall, in their judgment, be materially benefitted by making and finishing the said road, not exceeding 1,200 dollars,for each mile of the road; and as soon as the assessment was finished, the commissioners were to furnish a certified copy thereof, to be deposited in the clerk’s office of each of the said counties, for the inspection of all persons interested, and another copy to be delivered to the president and directors of the company, which assessment, when completed, was to be a lien on the lands, &c. Provided that the commissioners, before depositing their assessments, as directed, shall cause notice to be published for six weeks successively, in at least one newspaper published in each of the said counties, and also in one newspaper printed in the city of New-York, and in the newspaper printed by the state printer, that the assessments were completed, and copies thereof deposited, as required, to be examined by any person interested, or his agent, “ during one month” from and after a certain day, to be named in thp said notice for that purpose; and that at the expiration of the said one month, they will meet on a certain time and place, in the said notice to be specified, to review the said assessment, on the application of any person conceiving himself aggrievedand it is made the duty of the commissioners," during the said month, to submit the said assessment roll to the inspection of any person applying for that purpose, and at such time and place thereafter, as shall have leen notified by them, as aforesaid, they shall review the said assessment, &c.</p> <p>The commissioners appointed under the act, gave notice on the 28th of February, 1818, that copies of the assessment made by them, under the act, might be seen and examined at the respective places of abode of the commissioners, in the town of Saugerties, in the county of Ulster, and in the village of Bingham, in the county of Broome, from the 9th of March next following, until the 10th of April following; and that on the 10th of April next, the commissioners would meet at the house of J. E., &c. in the village of D. and county of Delaware, to review and correct the said assessment, &c., which notice was published in the Ulster Gazette, once a week, for six weeks, commencing with the 28th of February, 1818.</p> <p>The commissioners, afterwards, under the seventh section of the act, delivered to the sheriff of Ulster a transcript of the assessment roll, with a certificate, &c. that the lands assessed might be advertised for sale, and so much thereof as might be necessary to satisfy the sums assessed, with the sheriff’s fees, be sold, &c. The sheriff, accordingly, proceeded to advertise the lands mentioned for sale.</p> <p>A motion was made on the last day of the October term, that the sale of the lands mentioned in the certificate delivered by the commissioners to the sheriff, be perpetually stayed, and that the certificate be vacated, or for such order, process, or relief, as the Court might think proper to grant.</p> <p>The court, not having time to hear the motion argued, directed a stay of all proceedings by the sheriff, &c. until this term; and the motion was now renewed, in behalf of the owners of the lands assessed and advertised for sale.</p>

THIS was an action of trespass for breaking and entering the plaintiff’s close, in the town of Livingston, in the county of Columbia, and treading down, &c. the grass and corn, tearing… Held: that it was inadmissible, either as explanatory of the intention of the parties to the original deed, and their representatives, or as establishing a prescriptive right* or in any way supporting the defence set up , by the defendant; to which opinion the defendant’s counsel excepted.

THIS was an action of trespass, quare clausum fregit,. which was tried at the Columbia circuit, in September, 1816. The plaintiff derived his title to the locus in quo, which was a piece of uninclosed wood land, situate in the manor Livingston, from his father Robert Livingston, who was fbe proprietor of the whole manor; the defendant’s trespass consisted in cutting and carrying away several loads of r ° ° J fire wood.

THIS was an action of trespass for breaking and entering in' the subdivision of the plaintiff’s close, being lot No. 7. lot No. 14, in the second division of the Catskill patent. In 1688, the tract of land, called the Catskill patent, was granted to Martin G. Van Bergen, in fee, and Elizabeth Van Dyck, for life, remainder to her three children by her former husband, S. Salisbury, in fee.

<p>THIS was an action of assumpsit brought to recover the price of a certain quantity of timber sold and delivered by the plaintiffs to the defendant. The defendant pleaded nonassumpsit, with notice of set-off; and the cause was tried before Mr. J. Van Ness, at the Neni-York sittings, in July, 1817.</p> <p>A raft of timber, of which the timber in question was part, was purchased of the original owner by George Moore, and was paid for by the plaintiffs, partly in cash, and partly in their own notes. A receipt, dated May 27th, 1815, was given by the seller, in which the cash and notes were expressed to be received of the plaintiffs. An agreement, dated the 21st of May, 1815, was produced in evidence, between the plaintiffs of the one part, and Moore, of the other; by which Moore covenanted to superintend the sawpits and lumber-yard of the plaintiffs, for one year, in consideration of his receiving one-third part of the net profits. It was generally understood, that Moore was a partner with the plaintiffs. Before the raft was removed, Moore delivered part of the timber to the defendant. Upon this testimony, the defendant moved for a nonsuit, on the ground, 1. That there was not sufficient proof that the timber belonged to the plaintiffs ; and, 2. That the plaintiffs and Moore were partners, and should have joined in the action; or, 3. If they were not partners, and the plaintiffs were the owners of the timber, the action should havb been trover. But the judge overruled the motion.</p> <p>It was proved, on the part of the defendant, that Moore was indebted to him on a note, for about four hundred and thirty-seven dollars, which having been protested, Moore offered to pay it in timber ; and the defendant, as the only means of obtaining payment, Moored circumstances being bad, accepted the offer. The timber in question, estimated ■at 482 dollars and 50 cents, was, accordingly, delivered to the defendant, who paid Moore the difference' between the price of the timber and the amount of the note, in cash. A verdict was taken, subject to the opinion of the Court, for the plaintiffs, for the price at which the timber was sold by Moore, with interest.</p>

THIS was an action of assumpsit, for money paid by the plaintiff, to the use of the defendant, who pleaded the general issue, with notice of his discharge under the insolvent act, passed the 3d of April, 1801.

THE defendant moved to set aside the execution issued in this cause, and the default entered, and all subsequent proceedings, for irregularity. It appeared, from the affida-, , vit of the plaintiffs attorney, that a copy of the bill, with file usual notice of the rule to plead, was personally served on the defendant.

WRITS of capias ad resp., containing clauses of aa etiam, . . . J . were issued, at the suit of the plamtms,in which the abovenamed defendants, and Jonathan Turck and Abraham Turck, were named defendants.

THE above causes were put at issue on the 12 th Novemher, 1816. On affidavit, that the trial of them would require the examination of long accounts, and on the motion of the defendant for that purpose, they were ordered, in May term, to be referred to three referees.

THIS was an action of ejectment, for a lot of land in the town of Middlesex, in the county of Ontario. The cause was tried before Mr. Chief Justice Thompson, at the Ontario circuit, in June, 1818, when a verdict was taken for the plaintiff, subject to the opinion of the Court, on a case tobe made.

IN ERROR, on certiorari to three justices of the peace of the county of West Chester, to bring before this Court their appointment' of Gilbert Washburn, the defendant, as a constable of the town of Mount Pleasant• ' The return stated, that at a town meeting, held in the town of Mount Pleasant, on the 7th of April last, it was decided by the freeholders and inhabitants, that it would be v necessary for the town to elect two constables; that they proceeded to a choice, and…

THIS was an action of covenant, on a sealed note or instrument, dated the 12th of June, 1815, by which the defendant covenanted to pay the plaintiff, or his heirs, two years after date, the sum of 250 dollars. The defendant pleaded, 1. Non est factum: 2. Payment: 3. A release : 1 ^ J and, 4.

THIS was an action of debt on a recognizance of bail, • ° ' taken m the Mayor’s Court, of the city of New-YorJc.

A WRIT of mandamus, on motion of the Attorney General, was issued against the Supervisors of Ulster County, commanding them, forthwith, to levy on the said county the sum of 17,514 dollars and 71 cents, with interest from the 19th of June, 1817, or show cause why an attachment should not issue against them.

A mandamus was issued to the defendants, as commissioners of highways of the town of Danube, in the county of Herkimer, commanding them to lay out and establish a certain highway described in the writ, or show cause, &c. The return to the' mandamus stated, that on the 18th of June, 1816, on application made by twelve freeholders or the town of Minden, in the county of Montgomery, to the commissioners of highways, then being, to lay out a certain public highway, &c., the…

IN ERROR, on certiorari to a Justice’s Court. The defendant in error, brought an action in the Court below, against the plaintiffs in error. A warrant issued, which was only served upon Taylor, who alone appeared. The plaintiff below.declared on a judgment recovered by him, in a Justice’s Court, against the defendants below, for 17 dollars and 76 cents. The judgment declared on was proved, but it appeared, that it was recovered on process served only on,Twiss.

THIS was an action of assumpsit to recover the price of certain goods, sold, and delivered by the plaintiffs to the Ballston Spa Manufacturing Company, of which the defendant was president. The plaintiffs claimed the sqm of 547 dollars and two cents, as the balance due them on the 9tb of May, 1816, of an account containing mutual debits and credits.

THIS was .an action of assumpsit against the defendants, us endorsers of a promissory note, far 500 dollars, drawn by Rufus Clapp, dated the 9th of May, 1816, payable to the orcier Df the defendants, ninety days after date, at the office 0f the Utica Insurance Company, and ^endorsed by the -de_ v ^ , fendants, atm JB. M. Malcolm, j.he pause wag taied before Mr. J. Platt, at the Oneida circuit, in June, 1818.

IN ERROR, on certiorari to a Justice’s Court. The defendant in error brought an action in the Court below against the plaintiff in error, who was a toll-gatherer at one of the gates of the New Windsor and Cornwall turnpike road, for stopping and demanding toll of his son while returning from the mill with his team, and not letting him pass until he paid the toll.

THIS was an action of trover. The cause was tried before Mr. J. Yates, at the Jfew-York sittings, in April, 1818. The plaintiff deposited a chronometer with the defendant, to he sold by him, at not less that five hundred dollars, the defendant to retain all that he could procure beyond that sum. The defendant sold the chronometer for three hundred dollars, without the knowledge of the plaintiff.

<p>By the 65th lctb°of°Con^ c¿ *fe’totiie S ^.states for duties, is, m case8 °f msoifirst Satisfied t dpat olSigor d"tiesbbecom" "¿f bon<P“ii pa,d hls su" rety, the surety is entitled ta the same preference which the act secures to the United m¡ghtmainta¡# bond* in his Held"that, admitting that a. debt due to the United States for duties, is not barred by discharge of the principal obligor under the insolvent law of a state, (and it seems that it is not,) yet that the preference given to the surety is only the right to be first satisfied out of the effects of the insolvent, in the hands of his assignees, and not a right to maintain an action against the insolvent himself, notwithstanding his discharge: therefore, where the surety brings an action against the principal for money paid to the United States, on a bond for duties, the latter may plead his discharge under the insolvent law of this state.</p>

THIS was an action of assumpsit for work and labour, and materials provided by the plaintiff. Held: who ordered the mistake to be rectified, and new certificates to be issued, and that new certificates were issued, and handed to G. B. to be exchanged for the old ones.

IN ERROR, to the Mayor’s Court of the city of New York• . . , This was an action of assumpsit for repairs performed by the defendants in error, upon a certain privateer, called the Spitfire. The cause was tried in the June term, 1817, of the Court below.

THIS was an action of ejectment, brought to recover three undivided fourth parts of a house and lot of land, situate in the first ward of the city of Mcw-York.

THIS was an action of assumpsit, brought to recover the e r 7 0 amount of a bill of exchange drawn by the defendant on e ° v the plaintiff, and which-the latter accepted and paid. The cause was tried before Mr. J. Yates, at the New- York sit- . . tings, 111 April, 1818. The bill in question was dated at New-York, April 12, 1816, and was drawn at 90 days after date, for 592 dollars and 58 cents.

BY virtue of a warrant of attachment, issued by JV. Williams, commissioner, under the'act for relief against absent and absconding debtors, (1 JV.

THIS was an action of ejectment, for the undivided half 0f a farm in Dover, in Dutchess county, containing about 174 acres, and which is called the Hunt farm. The cause was tried before Mr. J. Van Ness, at the Dutchess circuit, . A ^ ^ « ID. &pr%l^ 1818. The premises in question formerly belonged to Lewis Hunt, who died about the year 1777.

IN ERROR, to the Mayor’s Court of the city of New-York. The defendant in error, brought an action of debt on a recognizance of bail, against the plaintiff in error, in the Court below. The declaration stated, that the defendant in the Court below, became special bail in an action pending in that Court, for one William Swann; and that a judgment was rendered against Swann, for damages and costs, which he had not paid, nor rendered himself in custody.

<p>IN ERROR, on certiorari to a Justice’s Court. The defendant in error brought an action in the Court he-low against the plaintiff in error, which was commenced by attachment. The constable, who executed the attachment, merely returned, that he had, by virtue thereof, levied upon / ’ . , „ , , r, certain articles, enumerating them. On the return day the defendant did not appear, and the plaintiff below declared on a promissory note drawn by the defendant for 125 dollars, payable in eight days after date. There were, also, four other attachments, in suits between the same parties; 7 *■ ’ and all the five were returnable at the same time, and the plaintiff declared m all, upon the same note. The five causes were heard ex parte, and the Justice rendered judgment in each cause, for 25 dollars, with costs.</p>

THIS was an action of covenant, for the breach of the covenants contained in a deed, dated the 1st of April, 1812, executed by the defendant, by which he conveyed to the plaintiff two lots of land in the city of New-Yorlc, part of ^ie estate formerly oí Evert Byvanck, and distinguished on a maP *hat estate by Nos. 37 and 48.

THIS was an action of assumpsit on a policy of insurance, dated the 26th of July, 1813, underwritten by the defend- ants, on a cargo laden on board the Swedish brig Gustava, for a voyage from Mew-Haven to St. Bartholomews. The policy contained a warranty, that the goods insurtid were Swedish property. The cause was tried before Mr. J. Yates, at the Mew-York sittings, in December, 1816. The deposition of F. G. Evers was read at the trial, on the part of the plaintiifs.

IN ERROR, on certiorari to a Justice’s Court. The defendant in error brought an action of trespass in the Court below, against the plaintiff in error, for taking and carrying away his goods and chattels.

<p>The record of a former recovery apparent-cause of acwhichafs the foundation of a subsequent suit, is prima facie evidence only, that the demandhad been once tried, and the plaintiff may repel it, by showing that it was a distinct demand, in relation to which no testimony had been ofiered on the trial in the former cause, and that it arose out of a distinct and unconnected transaction.</p> <p>Where a claim is submitted to a jury, and disallowed by them, a verdict and judgment thereon are a conclusive bar to a second action for the same cause.</p> <p>So, where the jury allow the plaintiff only a part of his demand, and less than he was entitled to recover.</p> <p>So, if the plaintiff brin» an action for a part only of an entire and indivisible demand, the verdict . and judgment in that action are a conclusive bar to a subsequent suit for another part of the same demand</p> <p>A claim arising from one entire contract, or from one single tortious act, cannot be divided into distinct demands, and made the subject of separate actions. '</p>

IN ERROR, on certiorari, to remove the proceedings he-fore a J ustice of the Peace, under the act to prevent forcible entries and detainers. (Sess. 11. c. 6. 1N.R.L. 96.) It appeared from the return to the certiorari, that the justice, on complaint made to him, repaired to the place, and finding that Fitch, the plaintiff in error, was holding the premises forcibly, after a forcible entry by him, imposed a ■fine of 12 dollars and 50 cents.

IN ERROR, on certiorari to a Justice’s Court. In this case a verdict and judgment were rendered for the defendant below, on which the plaintiff below brought a certiorari; and the only question arising on the return was, whether the justice ought to have refused to swear a witness, who was, when offered to testify, in a state of intoxication.

BANCKER, for the defendants, moved to set aside the fi.fa. and ca. sa. issued in these causes, for irregularity. The judgments were entered up and docketted on the quarto die post of January term last, being the 8th day of January; and on the 9th day of January, the writs of execution were issued, tested on the 31st day of October, being the last day of the preceding term, and returnable, the fi. fa. on the 9th, and the ca. sa. on the 13th day of January, in Januctry term.

IN ERROR, to the Court of Common Pleas of the cofin- - . 7 ty Of (Jnsidci• The defendant in -error brought an action in the Court below against the plaintiff in error. The declaration contained two counts; 1. A count in trespass, for breaking the pl3™^’5 close, and taking and carrying away his horse; an¿ 2. A count in trover, for the conversion of the plain- ’ tiff’s horse. The defendant below pleaded not guuty.

JUDGMENT as in case of nonsuit, having been obtained agajnst the plaintiff, for not proceeding to the trial of this ° *■ ' x ° cause, at the West Chester circuit, pursuant to notice, the defendant had the costs taxed.

Slosson, in behalf of David R. Lambert, a judgment creditor of the defendant, moved to set aside the judgment entered up in this cause, and the execution which had been issued thereon.

<p>Hale, for the plaintiff, moved to change the venue in this x ■ ° Cause.</p>

■IN ERROR, on certiorari to a Justice’s Court. The defendant in error brought an action in the Court below, against the plaintiff in error, and the following facts appeared on the trial. The parties had made a verbal agreement, by which the plaintiff below was to sell, and the defendant to purchase, a piece of land, for 1800 dollars.

THIS was an action of assumpsit, on a promissory note, made by James Cunningham, dated the 20th of October, 1813, for 800 dollars, payable, with interest, six months after date, at the bank of Orange county, to the defendant, who endorsed it to the plaintiff. The cause was tried before Mr. J. Spencer, at the Orange circuit, in September, 1817.

THIS was an action of debt on a recognizance taken under the act for the relief of cities and towns from the maintenance of bastard children. (Sess. 36. c. 12. 1 JV. it. L. 306.) The defendant pleaded nil debet, with a notice of special matter, intended to be given in evidence. The cause was tried before the late Chief Justice, at the Albany circuit, in April, 1818.

IN ERROR, on certiorari to a Justice’s Court. This was an action of trover, brought in the Court below, 0 . by the plaintiff in error, against the defendant in error, r . , „ .

<p>IN ERROR, on certiorari to a Justice’s Court.</p> <p>The defendant in error brought an action in the Court below, against the plaintiff in error. The summons was issued in trespass; but the plaintiff below, the defendant in error, declared for a bridle, which had been taken out of his possession, and was found in the possession of the defendant below, and which had been demanded by the plaintiff, but the defendant refused to deliver the same to the plaintiff, and converted it to his own use. The defendant objected to the proceedings, on the ground that the summons was in trespass, and the declaration in trespass on the case, and, therefore, there was a variance; but the Justice overruled the objection. The defendant then pleaded the general issue, and after an adjournment, the cause was tried before a jury, and a verdict found for the plaintiff below.</p>

THIS was an action of trover, brought against the defend-e 0 ° ant, as sheriff of the county of Herkimer. The cause was . ' J . . tried before Mr. J. Platt, at the Herkimer circuit, in June, i o 18» An attachment was issued under the act, respecting absent and absconding debtors, on the 6th of December, 1816, against one Andrew Clark, at the instance of the plaintiff, f°r a debt of about 800 dollars.

AN execution had been issued in the cause first above mentioned, on which the sheriff was directed to levy 1,653 dollars, and 91 cents; and in the second cause, for 289 dollars and 53 cents.

THIS was an action of ejectment brought to recover two seventh parts of a lot of land, lying in the town of Fishkill, in the county of Dutchess. The cause was tried before Mr. J. Fan Ness, at the Dutchess circuit, in April, 1819.

<p>THIS and three other actions of ejectment, on the de» . _ , . _ • , ,i mise oi the same lessors, were brought against the resgective tenants in possession of the premises in question, for the recovery of lot No. 50., in the township of Hannibal, ^ate *n Onondaga, but now in the county of Oswego. Thé ^les respectively, of the parties in each of the suits, were precisely the same, and a case was made by consent, with-out going to trial, with leave for either party to turn the .. . , same into a special verdict.</p> <p>On the 6th of July, 1790, the lot for which these suits were brought, was duly patented to John Clark, a soldier in the New- York line during the revolutionary war. The patentee and his wife, by deed, dated the 5th of October, 1793, conveyed the same to Jasper Cropsey in fee, and the deed was, on the 25th of April, 1795, deposited and registered in the clerk’s office of the county of Albany, according to law. On the 16th of September, 1799, Cropsey and wife conveyed the premises in fee to Robert Troup, one of the plaintiff’s lessors, and the deed was duly recorded in the clerk’s office of the county of Onondaga, on the 6th of November, 1799.</p> <p>The defendants derived their title from a certain instrument, under seal, executed by the original patentee, and dated the 11th of September, 1786. This instrument commenced in the form of a bond, Clark binding himself to Isaac Belknap, jun. in the sum of 300 pounds, New-York currency. Then followed a condition, in these terms :</p> <p>“ Whereas the said John Clark, by a resolution of this state, is entitled to a bounty of 500 acres of land, also, a bounty of 100, by congress, under such restrictions, and such conveyances, as by a law of the state is, or shall be, fixed and determined on; and whereas, until such law shall be passed, the said John Clark has no "legal title in, or right to convey the same by deed, yet, notwithstanding, for divers good.causes and considerations, and of four pounds in hand, paid to him, the said John Clark, by the said Isaac Belknap, jun., the receipt whereof is hereby acknowledged, hath, and by these presents doth, grant, bargain, and sell, all and singular, my right, title, and interest of, and in the 600 acres of lands, unto the said Isaac Belknap, jun., to his heirs and assigns forever; and in order more fully to invest the said Isaac Belknap, jun. of, and in the premises, Í, the said John Clark, doth, by these presents, authorize and appoint the said Isaac Belknap, jun. my true and lawful attorney, for me, and in my name, and in my place and stead, with lawful and ample power for me, and in my name, to ask, demand, and receive from any person or persons, the necessary certificate, deed, or other conveyance, whereby the said John Clark is to be lawfully entitled to said premises, and to do all, and every thing, as fully, and amply, to all intents and purposes in the law, for procuring the same, as I myself might or could do, were 1 personally there present; hereby ratifying and confirming all what my ■ said attorney shall and may lawfully do, in and about the premises. ■ Now know all men by these presents, and the Conditions of thiá obligation is such, that if the said John Clark shall not, by any méanS, revoke the power above given to the said Isaac Belknap, jitn. or otherwise shall, by a legal conveyance in the law, convey the Said 600 acres of land, unto the said Isuác Belknap, jun., his héifS ánd assigns, from and immediately after he shall by law be legally infested in the same; then, and in that case, the above obligation shall be void, else to stand and remain in full force and virtue in the law.’’ This instrument was duly acknowledged and recorded, on the 30th of July, 1816.</p>

IN ERROR, on certiorari, to a Justice’s Court. The cause was tried in the Court below, before a jury* jn order to complete the jury, two tales-men were sum-r J moned, and when they appeared, the defendant below ob«> . . jected to them as not being freeholders, and requested the Justice to examine them upon oath, as to that fact.

IN ERROR, on certiorari to a Justice’s Court. The defendant in error brought an action in the Court below against the plaintiff in error, in which issue was joined. At the time appointed for the trial, the Justice called the parties, but the plaintiff only appeared.

THIS was an action of debt on a bond executed by the defendants, to the sheriff of the county of Onondaga, conditioned that the defendant Erastus D. Palmer, who had been admitted to the liberties of the gaol, should remain a true and faithful prisoner.

<p>THIS was án action of ejectment, which was commences and tried in the Court of Common Pleas of the county of Greene, and in which á verdict was taken by bonsent for the plaintiff, subject to the opinion of this Court, on a case to be made between the parties,</p> <p>Qn the 15 th of August, 1814, one John Van Den Bergh executed a lease of the premises in question, being a m‘^sea^ with the privilege of cutting timber for erecting buildings, to Samuel and Alvin S. Smith, for fifteen years, at 0 , , , ,, , an annual rent. By articles or agreement, dated the 22d of November, 1814, S. and A. F. Smith, who had taken possession shortly after the lease to them, granted to the lessor of the plaintiff, the privilege of putting up a carding machine, at the mills of J. Van Den Bergh, for fifteen years, from the date of the agreement, for the consideration of 125 dollars ; the machine to be fixed at a wheel or shaft * then built for a fulling mill; the plaintiff’s lessor to build a shop for the carding machine, and to be allowed to cut timber on the land of Van Den Bergh, for that purpose. In December, 1815, the Smiths having sold their interest to Schermerhorn and Beach, Van Den Bergh executed a lease to Schermerhorn and Beach, which was dated on the day of the date of the former lease, and agreed with it in every respect, except the names of the lessees-, Schermerhorn and Beach entered and erected buildings and machinery $ and the defendant afterwards came into possession under them, and used the privilege which had been granted by the Smiths to the plaintiff’s lessor, who had never entered, nor in any way availed himself of the privilege granted to him.</p> <p>The case was submitted to the Court, without argument.</p>

IN ERROR, on certiorari to the Court of General Ses- . sions of the Peace of the county of Chenango. Two justices of the peace of the town of Norwich, in the county of Chenango, made an order for the removal of Rackel Ingraham, as a pauper, from Norwich to Sherburne. The overseers of the poor of the town of Sherburne, apPeafo^ to the Court of Sessions of the county of Chenango, which affirmed the order of removal. .

IN ERROR, on certiorari to the Court of General Sessions of the Peace of the county of Chenango* The paupers, George G. King and his wife and children, were removed from the town of Norwich to the town of Sherburne, by the order of two justices; and on an appeal from this order by the overseers of Sherburne, it was affirmed by the Court of Sessions.

<p>& Wof the fatter cannot of “mnstderathTrecovery.°f e A party making a voluntary conveyance, and his heirs, are bound by it; and in an action of ejectment by the grantee no-nine*</p> <p>take°advantage “gainst^him* seK>, ,undcr which the land conveyed by had been sold’ fngdUe**? <& teeVactilnjaá on1ySalope°ate “fs™which"he hadintheland, thing more than a naked possession,</p>

THIS was an action of ejectment brought to recover part of lot No. 10. in township No. 9., in the second range of townships in Ontario county. The cause was tried before the late Chief Justice, at the Ontario circuit, in June, 1818. It was admitted, that the title to the whole of the town-7 ship in which the premises in question are situated, was formerly in Oliver Phelps, and Nathaniel Gorham, under whom both the parties claimed.

THIS was an action of ejectment for a lot of land, in the village of Cherry Valley, in the county of Otsego, which was tried before Mr. J, Platt, at the Otsego circuit, in June, 1818. In 1814, W. Beekman, jun. purchased the lot in question of one Delos White, by a mere verbal agreement, paying him, however, partly in other land, and partly in money, the full consideration.

IN ERROR, on certiorari tó a Justice’s Court. The defendant in error, brought an action in the Court below, against the plaintiff in error, upon a promissory note, payable to Holmes, or bearer, executed by the plaintiff in error, to which there was a subscribing witness.

THE prisoner was brought up on habeas corpus. She was indicted at the court of Oyer and Terminer, held in the city of New- York, in November last, for arson, under the first section of the act declaring the punishment of certain crimes, (36 sess. ch. 29. 1 N. R. L. 407.) which declares, among other things, that any person who shall be duly convicted of “ wilfully burning any inhabited dwelling house, shall suffer death,” &c. It appeared, at the trial, that the house alleged…

<p>Where in an action on an arbitration bond, the defendant pleads no awavd, and the plaintiff replies setting forth an award, a rejoinder that the defendant, previously to the malting of the award, had by writing under seal, revoked the power of the arbitrators, is good; and* such jrejoinder is not a departure from the plea, and is not inconsistent with, but fortifies it, as it shows that the instrument purporting to be an award, was, in fact, no award, the powers of the persons making it having >een determined.</p> <p>But where the rejoinder impeaches the award, is isa departure ; for that is an admission of its existence, and is, therefore, inconsistent thedPj°j that there was no award.</p> <p>It seems unneces?ajr to state in the re-joinder that notice of the revocation was given, as this is implied in the fact, that the submission was revoked: but, at all events, the objection cannot be taken on general demurrer.</p> <p>A party to an arbitration bond may, before award made, revoke the power granted to the arbitrators, and they cannot proceed to make an award- The penalty of the bond is thereby forfeited, but it is compulsory on the plaintiff to assign breaches and have his damages assessed, under the 7th section of the act for the amendment of the law. (1 JV. H, L. 518.)</p>

THIS was an action of covenant on an indenture of lease, The cause was tried before Mr. J. Van Ness, at the Ren5 selaer circuit, in July, 1818. ’ J The declaration set forth a lease dated the 28th of Au-gust, 1792, from the plaintiff to the defendant, of a certain piece of land, for the term of one thousand five hundred and fifty years, at the yearly rent of 12 pounds, 15 shillings an(l 6 pence, lawful money of Great Britain, payable quarforty) and the breach assigned was,…

IN ERROR, to the Court of Common Pleas of the coun- . ty of Oneida5 on a bill of exceptions* ■* *■ The defendant in error brought an action of trespass quare clausum fregit against the plaintiffs in error. The declaration contained three counts, to which the defendants below merely pleaded a joint plea of not guilty. The cause was tried at the May term, 1818, of the Court below.

THIS was an action of assumpsit against the defendant, as endorser of a promissory note drawn by Hiram Payne, f°r 250 dollars, dated at Albany, the 23d of December, 1816, an^ payable twelve months after date.

THIS was an action of covenant. The declaration stated, that on the 7th of June, 1815, at Homer, in the county of Cortland, by an agreement under seal, between the parties, bearing date on that day, the plaintiff agreed to let to the defendant, his half of the clothier’s shop, tools, fulling mill, privileges, &c. in which the parties had previously been partners, for the term of three years, from the 5th of Ocioher. 1815, for the sum of 900 dollars, to he paid by the de« . .…

IN ERROR, on certiorari to a Justice’s Court. 1 . The defendant m error brought an action m the Court below, against the plaintin in error, to recover a sum of money due to the former, from the latter, on account of a carriage, which had been delivered to the parties in this suit by one Gerry, as payment or security for debts which he owed them.

IN ERROR, on certiorari to a Justice’s Court. This was an action upon a promissory note not negotiable, executed by the defendant in error, who was, also, defendant in the Court below, to the plaintiff in error, in whose name the suit was brought, but for the benefit of one Hos-kins, the assignee of the note. The note was dated the 28th of December, 1813, for 25 dollars, payable three months after date, with interest.

THIS was an action of covenant, upon articles of agreement, made the 22d of September, 1813, between the defendant and a number of other persons, of the first part, and the plaintiffs, of the second part.

EDWARDS moved, that the report of the commissioners ' 1 , of estimate and assessment, in the matter enlarging and expending Harman street, be confirmed.

AN objection was made to the affidavit offered to be read . , . J _ , , „ m this cause, that it was not taken beiore a commissioner, appointed pursuant to the act of the last session, March 24, 1818, but before one of the commissioners appointed by the ri V/OUru

MOTION to set aside the fieri facias issued in this cause, ^ v u 7 on the ground that the defendant, on the 16th of August, 1817, was duly discharged from all his debts, under the “ Act for giving relief in cases of insolvency,’’ passed April 12, 1813, (1 IN'.

<p>THIS was an action of covenant, for the breach of the. covenants a deed dated the, 16th of Map, 1815, and ex-ecu*e(* V'the defendant and his wife, for a piece of land, of eighteen acres, one quarter of an acre, and eight poles, by which the defendant covenanted that the grantors, at the time of the ensealing and delivery of the deed, were lawfully seised, in their own right, of the premises, as of a good, sure, perfect, absolute, and indefeasible estate of inheritance in fee simple, without any manner of condition to alter, change, determine, or defeat the same, and had good right &c. to grant, bargain, and sell the same, and that the defendant should and might, from time to time, and at all times, peaceably and quietly enter into, and possess and enjoy the premises; and that free and clear from all estates, charges, conditions, or incumbrances, whatsoever. There were other covenants in the deed, but these are the only tines upon which breaches were assigned. The assignment of breaches was general, in the words of the covenants. The defendant pleaded non est factum, and that he was lawfully seised, &c. pursuing the words of the covenants. The cause was tried before Mr. J. Van Ness, at the Rensselaer circuit, in 1816.</p> <p>On the 21st of May, 1810, previous to the execution of the deed to the plaintiff, one John Potter mortgaged to the loan officers of the county of Rensselaer, 500-acres of land, in which the premises conveyed to the plaintiff were included, for the payment of 508 dollars, with interest, and the defendant subsequently derived his title from Potter. The portion of the mortgage money and interest with which the plaintiff’s premises were chargeable, according to the proportion which they bore to the whole, was 68 dollars and 80 cents. The whole of the land had been frequently advertised, and was, at the time of trial, advertised for sale, under the mortgage. The mortgage was not accompanied with any bond or other security ; and the defendant, at the time of his conveyance, had a title to the premises conveyed, except so far as it might be affected by the mortgage. The jury found a verdict for the plaintiff for the sum of 68 dollars and 80 cents, subject to the opinion of the Court, on a case which was submitted to the Court without argument.</p>

THIS was an action of ejectment, in which the plaintiff elaim edseven-eighths of a piece of land, containing about seventy acres, lying in lot No. 46. in the town of Aurelius, m the county of Cayuga, as being, in fact, part of the adjaeen! lot No. 37. to which the plaintiff claimed title, on the ground of a mistake in the original survey and location these lots.

THIS was an action of assumpsit. The declaration contained counts for money paid, money lent and advanced, The cause was tried at the , i. j j t and money had and received Schoharie circuit, in November, 1818.

THIS was an action of covenant, upon articles of agreement, bearing date the 1st of August, 1810, which recited, 5 ° e 0 7 7 7 that the plaintiff had sold to the defendant a place whereon . . . . 1 the plaintiff then lived, containing about sixteen acres, with a wood lot containing about twelve acres ; and that the defendant had agreed to give the plaintiff, for the same, the sum of 760/., whereof 240/. were to be paid on the 15th day of September next after the date; and…

<p>A release given la caúselaforthelpurpose of enabling the releasee to be a witness on the trial of the cause,¡s,if&rMschargeof’the ieleasee to the toougíhí’was toe striai“ or produced*6356</p>

THIS was an action of assumpsit brought against the dex ° ° fendants, as the administrators of Chauncey Woodruffs deceased. The declaration contained counts for goods sold and delivered to the intestate, and the usual money counts; and the promises were alleged, in one set of counts, to have been made by the intestate, and in the other, by the administrators. There were, also, counts on an insimul computassent with the deceased, and with the administrators.

IN ERROR, on certiorari to the Court of General Ses' sions of the Peace, of the county of Oneida. Ruth Gilbert, and the six infant children of herself, and her husband, John Gilbert, were removed, by an order of two . 1 7 7 * Jushces, dated the 5th of February, 1817, from the town of n • i _ . Jrans to the town of Augusta, which order adjudicated the settlement of the paupers to be in the latter town.

IN ERROR, to the Court of Common Pleas of the county of Jefferson. The defendant in error brought an action of indebitatus assumpsit, in the Court below, against the plaintiffs in error.

<p>THE sheriff of Otsego made a special return to ten different writs of fieri facias directed to him. Nine of the executions were against Wilber Barnet, and the other against Henry ; and a question was raised on the return of them, as to the priority to which they were respectively entitled. In the first four suits, the executions were delivered to the sheriff between the 7th and 15th of January, 1817, inclusively, and the others in July, August, and November, 1817. The return stated, that the property out of which the money now in the hands of the sheriff was made, was, except a small quantity of household furniture, transferred by Barnet Henry to Campbell &/• Hyslop ; that Wilber fy Barnet had been partners, but Wilber had withdrawn from the partnership, and assigned his interest in it to Henry, who was to pay his proportion of the partnership debts. Campbell <§* Hyslop took possession of the store containing the goods so assigned to them, and they locked up the store, with most of the goods in it, and kept the key, all which was done before the executions in the four first causes were delivered to the sheriff. The assignment to Campbell fy Hyslop having been ad-fudged void by the Court, the sheriff levied on the property, ^ r, J. , 1 ... , J by virtue of the four first executions, by going to the store and seizing some articles lying outside of it, and proclaiming that he levied on the store, and the goods in it; but the store was not broken open, nor entered by the sheriff, nor was any inventory of the property taken. Wilber Bar-net held the store under a lease for years, which was unexpired. The property so levied on was sold by the sheriff1/ * *■ 1 J v in November, 1817, as soon as the decision of the Court as to the validity of the transfer to Campbell Hyslop was known, and the sale was made under all the executions.</p> <p>The question was submitted to the Court, on the returns, w¡thout argument.</p>

IN ERROR, to the Mayor’s Court of the city of Albany. The defendant in error brought an action of debt for rent, against the plain tiffin error, in the Court below.

THIS was an action of ejectment, commenced in August, 1817, for the recovery of lot No. 41., in the second division of the Minisink patent, in the town of Mamakating, in the county of Sullivan. The cause was tried before Mr. Justice Spencer, at the. Sullivan circuit, in September, 1817. ’ r rni . , . , . . .

THIS was an action of ejectment brought to recover an - J ° undivided eighth part of about six thousand acres of land in the county of Otsego. The cause was tried before Mr. J. Platt, at the Otsego circuit, in June, 1818.

THIS was an action of debt, brought by the defendants in error, in the Court below, against the plaintiff in error, as * By an act passed April 10th, 1818, 41 sess. ch. 139. this Court, on. account of the unusual number of cases pending, was authorized to hold a special term or session at Albany, on the first Tuesday of September, 1818.

THIS was an action of ejectment, which was corn menced in October term, 1808, in the court below, and was brought to recover the possession of an undivided share of ]0t No. 4, in the sixth allotment of a tract of land, situate on 7 the Mohawk river, in the town of Minden, in the county of , v Montgomery, (now the town of Danube, m the county of Herkimer,) granted to Abraham Van Horne and others.

A WRIT of error was brought, by the defendant in the „ , , „ , „ . , . , , . Court below, upon the bill oí exceptions, which was taken at the trial, and on which, after argument, the Supreme Court rendered judgment for the plaintiff below. (See Hallelt v. Novion, 14 Johns. Rep. 273—294.) The cause having undergone a full and most elaborate discussion in the Supreme Court, was here briefly argued, by Burr, for ff*e plaintiff in error, and Henry, for the defendant'in error.

The declaration was, in the usual form, upon a bill THIS was an action of assumpsit brought in the Supreme Court by the defendants in error, against the plaintiffs in ' ** CITOr, °f lading of 13 hogsheads of tobacco, and charged the plaintiffs in error with a breach of the contract, in the non-delivery of the tobacco, agreeably to the bill of lading. J , ° J .

THIS was a writ of error brought to reverse a judgment of the Supreme Court, in an action commenced in that Court by the plaintiff in error, against the defendant in error, as the endorser of a promissory note, dated the 8th of May, 1812, drawn by Matthias and William Ward, payable to the order.of the defendant, for 750 dollars, at 100 after dale, and which was one of twelve notes. (See Dunham v. Dey, 13 Johns.

THIS was an action of ejectment for land in West Chester. The defendant in the Court below pleaded the general issue; and the cause was tried at the West Chester circuit, in June, 1817, before Mr. Justice Van Ness, when a Special verdict was found, containing the following facts: Medcef Eden, the elder, being seised, in fee, of the premises in question, and having issue, two sons, named Joseph and Medcef, on the 29th of August, 1798, made his will, and, among other things,…

THIS cause came before this court, on a writ of error to the Supreme Court. (S. C. 15 Johns. Rep. 57.) The plaintiffs in error, brought an action of assumpsit against the defendant in error, to recover 3627/. 11 s. Id. sterling) the balance of an account current, signed by Henry Waddington, Sc Co. dated at London, January 1,1815. The cause was tried at the Hew-York sittings, in December, 0 ' ¡816, before Mr. Justice Van Mess.

Same points as last'case.™ THE plaintiffs in error brought an action of assumpsit against the defendant in error, in the Supreme Court, to recover a balance of 18,359/. 8s. 3d. sterling, with the interest thereon from the 1st of January, 1814, as stated in an account current, signed by H. W. with the name of H. W. 8?

THIS was an action of ejectment brought in the Supreme p Tr T Court, to recover a lot or land in the city of JVew-io?'/c* The cause was tried at the New-York sittings, before the late' Chief Justice, in April 1816.

THIS was a writ of error to the Supreme Court. The material facts are stated in the report of the case in the court below, and also in the opinion delivered by the Chau cellor in this court. It is, therefore, unnecessary to repeat them in this place. For the facts and the opinion of the Supreme Court, See 15 Johns. Rep. 169. 172,

THIS was an appeal from the Court of Chancery. i - . The appellants, on the 29th of July, 1817, tiled their bill against the respondents, stating, that on the 30th of September, 1816, they indorsed in blank, a certain promissory note, drawn and signed by Daniel Dow and William Men-' z^es>1Tl the name and firm of “ Dow Menzies,” payable to the appellants or their order, at the bank of Nezu-York, for 4?Q00 dollars; which note was immediately thereafter delivered by Dow fy-…