Volume 17 — Johnson's New York Reports

moved to set aside the default entered in this cause and all subsequent proceedings, on the ground of irregularity. The suit was commenced by a capias ed rcsj).

moved for judgment as in case of nonsuit, for not proceeding to trial, &c. objected that the affidavit, on which the motion was founded, was taken before an attorney of the court, as commissioner, who was a partner of the defendant’s attorney, in the practice of the law as attorneys. He cited Taylor v. Hatch, (12 Johns. Hep, 340.)

THIS was an action of debt, on a judgment in the Court of C. P. of Genesee county, to which the defendant pleaded satisfaction, setting forth certain proceedings in the suit material to the plea; among others, the issuing of the capias ad respondendum in the original action, which was alleged to have been sued out on the 5th of February, 1819.

THIS was an action of debt brought in this court, to recover a penalty of 150 dollars, under the act of Consn s«, passed the 2d of August, 1813, (13 Cong. sess. 1. ch. 3a.) entitled, “An act for laying duties on licenses to retailor - of wines, spirituous liquors, and foreign merchandise,” for sellina, by retail, spirituous liquors, without license, contrary to the provisions of the said act.

'nilS was an action on a policy of insurance on the cargo of the Brig African, “at, and from Gothenburgh to Carlshune, or anv other port of delivery in the Baltic; if turned away, 1 J J or warned not to enter, to a near open port.” Premium seven and a half per cent.; to return two and a half per cent., if the risk ends at Carlshune., in safety. The declaration contained the usual money counts.

THIS was an action of ayeumpeii. brought by the plaintiffs, as endorsers oí a promissory note*, against tne udcivmijis, ••⅝ executors of the endorser; and was tried the 1th of I ffrmtfr, Hbd. at the jVuc- Y The note was dated the 22d of S'plemher.

THIS was an action of ejectment, for land in Walton in Delaware county, and was tried at the Delaware circuit, before Mr. Justice Yates, on the 30th of June, 1818. The lessors of the plaintiff deduced a regular title, by descent, from Peter Van Brugh Livingston, the patentee, to lot No. 104. in the tract of land granted to Peter Van Brugh Livingston, Lawrence Kortright, and others.

The plaintiffs brought an action of assumpsit in the court below, against the defendant, to recover toll claimed to be due to them from the defendant, for travelling, with his cattle and carriages, on the turnpike road, and through the gate in Newburgh, belonging to the plaintiffs.

MOTION on the part of the defendant that the writ of error, filed in this cause, be a supersedeas, to the execution issued on the judgment, &c. It was an action of debt, brought by the plaintiff, qui tam, &c. under the eighth section of “ the act to prevent and punish champerty and #maintenance.” A judgment was obtained by the plaintiff for 400 dollars, and the record was filed on the 31st of May last. Á wrj>t of error cormn vobis was brought to reverse the judgment, and…

, returnable in January term, 1818, and which had been returned with an endorsement thereon by the sheriff “ cepi corpus.” It appeared that the capias has been delivered to the deputy sheriff, who, on the 20th of March, 1818, put in special bail for the defendant, to wit, himself and John Doe; and the affidavit of the deputy stated, that on the 2d of April he put a written notice of the special hail being filed ⅞ to the post-office, directed to the plaintiff’s attorney.

THIS was an action of trespass, quare clausum fregit, originally commenced before a justice of the peace, in which the defendant pleaded title to the locus in quo.

THIS was an action of assumpsit, tried at the IS cw-York sittings, in April, 1819, before Mr, Justice Yates. At the trial, the plaintiff produced, and read in evidence, a memorandum in writing, signed by the defendant, as fallows : “ Bill for.. Damages 10 per cent. Half per cent, protest, &,c. . . .

THIS was a case of an appeal to the Court of Sessions, of Montgomery county, from an Order of Removal of a pauper, made by two justices of the peace of Johnstown. The Court of Sessions quashed the order, on the ground that the pauper was legally settled in the town of Canajoharie. It appeared that the pauper was an illegitimate child, about 14 years old.

THIS was an action on a covenant contained in a mortgage, dated the 4th of May, 1814, given by the defendant to the plaintiff's, for securing the payment of one thousand dollars, conditioned to be paid, with the interest thereon, when the same should be demanded, at any time after the first Tuesday of May, 1815, and which the defendant covenanted to pay accordingly.

THIS was an action of trover, brought to recover the value of a vessel, called the Penelope. Held: that Congress might lawfully direct the removal of any articles necessary to the maintenance of the American army, or which might be useful to the enemy, and in danger of falling into their hands ; for such a power was a natural and necessary consequence of war; and that the owner of the property was not, therefore, entitled to…

THIS was a proceeding by attachment, commenced in the Mayor's Court, of the city of New-York, and removed into this court by certiorari, against two horse ferry boats, under the act, sess. 22. c. 1. (1 iV. II.

THIS was an action of assumpsit, brought by the plaintiff, as holder of a promissory note, against the defendant, as en-dorsor. The defendant pleaded non-as sum.]) sit, and gave notice of a set-off. The cause was tried at the New-York Sittings, on the 28th of November, 1818, before the late chief justice. The note was dated April 6th, 1816, drawn by Shelton & Beach, for 500 dollars, payable to the defendant, sixty days after date, and endorsed by him.

The plaintiffs brought an action of debt against the defendant, as sheriff, for the escape of one James MKellops, from the gaol liberties of the county.

THIS was an action of ejectment, tried before the late chif i‘justice, at the X t w- York sittings, in Dectmher, HIS. The plaintiff g.ne in evidence an indenture of lease, made the 1st <>1 Jinii.

5 was an action of covenant, in a chatter party, made the 10th of March, 1817, by which the plaintiffs let to freight, to the defendant, the schooner Aurora, “for a voyage from New- York to Pernambuco.” The plaintiffs stipulated to re ceive a cargo, and (the dangers of the seas and restraints of rulers and princes excepted) to proceed therewith, from the port of New-York to Pernambuco, and there deliver the said cargo to the defendant, his factors or agents.

<p>THIS was an action of assumpsit, tried the 8th of December, 1818, at the New-York Sittings, before the late chief justice.</p> <p>In October, 1815, the plaintiffs and defendant made a joint purchase, from Caines & Crary, of a quantity of French goods, to the amount of 18,608 dollars 33 cents, and tire plaintiffs gave their notes for one half the amount, and the defendant gave his note for the other half. On the 15th of October, 1818, Seymour & St. John purchased from the plaintiffs and defendant, one case of goods, for 2,583 dollars and 84 cents, at a credit of five months; and, before the expiration of the time, the plaintiffs agreed to receive in payment the notes of St. John &f Warner, which they accordingly received, the firm of Seymour & St. John having become insolvent; and, on receiving these notes, the credit was extended to six months. When the notes became due, the plaintiffs took, in lieu of them, Smith &f Spicer’s notes, endorsed by Seymour & St. John, at six months, St. John & Warner having failed, at which last-mentioned transaction the defendant was not present. The witness stated that, although Seymour & St. John failed, and declared themselves insolvent, yet Seymour had been, and still was, able to pay all his debts.</p> <p>On the 25th of November, 1815, the plaintiffs and defendant made a division of the goods purchased by them and remaining on hand, and for the part sold, the plaintiffs gave to the defendant their two several promissory notes, of 542 dollars and 44 cents each, for the one half, payable in March, 1816, and which were, afterwards, paid by the plaintiffs to the assignees of the defendant, who had become insolvent.</p> <p>On the 31st of July, 1817, the plaintiffs addressed a letter to the defendant, as follows: “ Dear Sir—Seymour & St. John have made a proposition to settle our joint claim on them, of 2,583 dollars and 87 cents, (equal to about 8 Shillings in the pound,) for one case of French goods. We believe it to be an advantageous offer; and, unless you object to it this day, we shall accept it, and hold you accountable for half the loss.”</p> <p>In the afternoon of the day on which the letter was dated, the plaintiffs compromised with Seymour & St. John, and Smith & Spicer, who paid about 1,100 dollars, on their notes ; (and, to recover the one half of the loss, this action was brought.) The witness stated, that he did not know that Smith was insolvent ; that he is now cashier of a bank at St. Louis, (Missouri,) and that Seymour had always been able to pay his debts. Another witness stated that Smith was, at the time of this compromise, notoriously insolvent, and that all the parties to the notes were then believed to be so, and that he advised the compromise, as advantageous to the plaintiffs.</p> <p>The plaintiffs having rested their cause, the defendant’s counsel moved for a nonsuit, on the ground that this was a co-partnership transaction; and, therefore, no action at law could be maintained, without proof of an express promise by the defendant. The chief justice reserved the question.</p> <p>A witness for the defendant testified, that, in a conversation with the plaintiffs, on the subject of this controversy, he asked them, whether the defendant, after the division of the goods, could have enforced payment from Seymour ⅜ St. John, or Smith &f Spicer, and the plaintiffs replied “ no; the defendant had nothing to do with it.”</p> <p>The chief justice charged the jury, that it did not appear that the defendant had any agency in exchanging the security of Seymour &f St. John for that of St. John fy Warner, nor in extending the terms of credit when the notes of Smith ⅝* Spicer were taken, nor in the change of security at that time; that the notice of compromise to the defendant was very short, to say the least of it; that, as to the compromise itself, its prudence and necessity were doubtful; and he thought, upon the whole, that the evidence was not enough to charge the defendant ; but that these were questions of fact for the consideration of the jury. The jury *found a verdict for the plaintiffs, for 965 dollars and 76 cents.</p> <p>A motion was made to set aside the verdict, and for a new trial, as well on the point reserved, as because the verdict was against law and evidence.</p> <p>This action is for the half of a loss, in the nature of a liquidated balance; the joint concern in which the particular purchase of goods was made, and to which the partnership was restricted, having spent itself before the loss occurred. The adjustment, made by the parties was a final settlement of the co-partnership. It is true, that the courts, in England and here, have said, that an action at law cannot be maintained by one partner against another, unless there has been a settlement of accounts, and an express promise by one partner to pay the balance. (Murray v. Bogert, 14 Johns. Rep. 318.) But in Rack straw v. Imber, Gibbs, Ch. I., (I Holds N. P. Rep. 368.) held, that an express promise was not necessary; that the “dissolution of the pre-existing co-partnership, and the mutual settlement of an account, are a sufficient consideration in law for an implied promise to pay a balance on the side of the partner from whom such balance is due.” And this court, in Wetmore v. Barker, (9 Johns. Rep. 307.) went on the ground, that the law would raise an implied promise to pay the balance found due on the settlement of accounts between partners. The error into which the English courts and this court seem to have fallen, in supposing that an express promise was necessary, originated in the case of Foster v. Allanson, (2 Term Rep. 479. and see Moravia v. Levy, n. 483.) in which there were articles of co-partnership, for seven years, and a covenant to settle accounts annually. Here the joint or partnership concern, between the plain tills and defendant, was finally and for ever closed. In Bond v. Hays, (12 Mass. Hep. 34.) the Supreme Court oí Massachusetts held, that assumpsit would lie by one partner against his co-partner, for money paid by him, on a dissolution and adjustment of the concern, more than was actually due. Now, have not the plaintiffs paid to the defendant more than he was entitled to? The plaintiff's gave their notes to *thc defendant, for the one half of the amount of the goods sold Sí. John & Warren, the consideration for which was, that the note of St. John & War-■ten, taken on the sale to them, would be paid; and that consideration having failed, the plaintiffs are entitled to recover back the money they have paid in this action.</p> <p>' Suppose the plaintiffs had received the whole money, at the time, from St. John &f Warren, could not the defendant have maintained an action of assumpsit, to recover of the plaintiffs the one half, as so much received to his use ?</p> <p>There are no partnership accounts in this case to be adjusted ; there is nothing which can deprive this court of its jurisdiction, or which renders it proper, or necessary, to send the plaintiffs to a court of chancery.</p> <p>There can be no pretence, that the plaintiffs have made the debt their own, by changing the notes. They acted in good faith, and gave notice to the defendant before they took any step.</p> <p>The question is not, whether there was a partnership between these parties, but whether one can maintain an action against the other, for a share of a loss sustained on a joint sale, without an express promise to pay. Whatever fluctuation there might have been in the English courts, as to this question, this court have uniformly decided, that an action cannot be maintained by one partner against another, on a settlement of accounts, unless there has been an express promise to pay the balance. (Casey v. Brush, 2 Caines''s Rep. 294. Nevin v. Spickernan, 12 Johns. Rep. 401. Murray v. Bogeri, ,14 Johns. Rep. 321. 1 Binney’s Rep. 192. S. P. 2 Term Rep. 483. n. Watson on Partnership, 396. 2d ed.) The application of this rule to a general partnership cannot be doubted ; and the reason of the rule applies equally to a special partnership, as in this case.</p> <p>Again ; the plaintiffs took the whole debt of St. John ⅝- Warren to themselves. They treated it as their own. They changed the security, and made a compromise; and though the defendant had notice of the proposed compromise, yet ⅝ was short, unreasonable, and insufficient. He never assented to any acts of the plaintiffs. One of the debtors, Seymour, was proved to be perfectly solvent. The compromise was, therefore, unnecessary and imprudent, and discovered a great want of care and attention, on the part of the plaintiffs.</p>

TEE defendant obtained his discharge as an insolvent debtor, on the 8th of January, 1812, under the insolvent act of the 3d of April, 1811.

BY an act passed the 7th of April, 1819, (sess. 42. ch. 107.) the legislature appropriated the sum of ten thousand dollars, for two years, for… Held: on the first Tuesday of June, 1819, at Luther Gap’s in the town of Washington, which, from its central situation, was the usual place of holding county meetings, for the purpose of forming an agricultural society in the county, to which all the inhabitants of the county were invited, and which notice was published in the same…

<p>IN ERROR, on certiorari to the Court of General Sessions of the Peace, of the county of Chenango.</p> <p>On the 9th of November, 1816, two justices of Smithville, in the county of Chenango, made an order for the removal of William Chittenden, a pauper, of the age of eleven years and five months, from Smithville to Vernon, and adjudged that his legal settlement was in Vernon, (a) There was an appeal from this order to the Court of General Sessions of the Peace of the county of Chenango, which affirmed the order. At the hearing, the appellants excepted to the order, 1. Because the justices had not adjudicated that the last legal settlement of the pauper was in Vernon; and 2. Because it did not appear, by the order, that the pauper was ordered or directed to remove to his former place of settlement, before the justices issued their warrant for removal.</p> <p>*It appeared in evidence, that about twelve years ago, Truman Chittenden, and Lois, his wife, came to Vernon, and remained there a few months, were warned out of the town, and departed, not having gained a settlement in that town. During their residence in Vernon, W. Chittenden, the pauper, was born. In 1800, and the two succeeding years, T. Chit-tenden resided in Lisle, in the county of Broome. Seymour, who was collector of Lisle, in 1801, testified, that he could not positively say whether he collected a tax of T. Chittenden, but he thought it likely that he did. Lois Chittenden, the mother of the pauper, testified that her husband paid one year a tax of six shillings, and she thought that he paid it to Seymour. Beach, who was collector in 1802, testified, that- T. Chittenden was on his tax list; that he went to his house for the tax, and believed that he received it, though he did not recollect clearly, but he knew that he paid over the full amount of his tax bill to the treasurer.</p> <p>About 1813, Lois Chittenden, with her family, of which the pauper was one, was removed from the town of Cincinnatus to the town of Lisle, by an order of two justices. The overseers of the poor of Lisle appealed from that order, and gave notice of the appeal to the overseers of Cincinnatus, who, thereupon, sent for her and her family, and brought them back to Cincinnatus. In consequence of this, the appeal was not prosecuted, nor the order reversed. It also appeared that, previous to making the order of removal by the justices of Srnithville, L. Chittenden and her family, including the pauper, }ja¿ been warned to depart.</p> <p>The case, on. the return to the certiorari, with the exceptions taken, was submitted to the court without argument.</p>

THIS was an action on the case. The declaration stated that the plaintiff was lawfully possessed of -a certain messuage, or dwelling-house, in the city of New-YorJc; yet that the defendant, well knowing the premises, but contriving, and rna-liciously intending, to injure and aggrieve the plaintiff, and to deprive him of the use, benefit, and advantage of his said messuage, dug up the soil and earth of a certain lot of ground contiguous, and adjoining to the plaintiff’s…

THIS was an action of trespass de bonis asportatis, which was tried before Mr. J. Spencer, at the Orange circuit, in September, 1817. In February term, 1814. of the Court of Common Pleas of the county of Orange, Sally Ann Barclay recovered a judgment against William Gorham and wife, for 208 dollars and qq cents, damages and costs, which was docketed on the 2d of March following.

IN this, and eight other causes, between the same parties, judgments were entered up and docketed, in favor of the plaintiffs, against the defendant, in 1S00 and 1801, amounting together to about 17,000 dollars; but no executions had.been issued thereon.

<p>A discharge under the insolvent act oí’ the 3d of April, 1811. does not discharge a debt contracted prior to the passing of that act. which, as impairing the obligation of U.e contract, is unconstitutional and void.</p>

THIS was an action of slander, and the damages were laid in the declaration at 1,000 dollars. The jury found a verdict for the plaintiff for 4,250 dollars. now moved for leave to amend the declaration, by increasing the amount of damages stated.

THIS was an action of ejectment, in which the lessor claimed as a purchaser of the premises in question under a judgment. Benjamin Ballow, afterwards, on the 28th of August last, purchased a mortgage on the same premises, and took an assignment thereof, and also purchased a judgment prior to that under which the lessor of the plaintiff claimed title. in the place of the present defendant.

IN ERROR, on certiorari to a Justice’s Court, Hopkins sued Conkey, in the court below, for damages for a breach of contract. The plaintiff' below had bound himself to Pay a certain sum, annually, to the trustees of the First Pres-by ferian Society in Milford, towards the support of the defendant below as a gospel minister in that society.

<p>IN ERROR, on certiorari to a Justice’s Court.</p> <p>Day brought an action of assumpsit against Chase, in the court below, for newspapers sold and delivered to the defendant below, who pleaded noil assumpsit. It was proved, that on the 1st ol January, 1816, Chase called at the printing oiiice ot Day, and inquired “ the terms on which the plaintiff’would let the nephew of the defendant have newspapers to sell and distribute, &c. as a news carrier.” The plaintiff stated the terms, to which the defendant below replied, “ if my nephew should call for papers, I will be responsible for the papers that he shall take.” The nephew of the defendant, soon afterwards, called at the office of the plaintiff for newspapers, and said, “ that his uncle, the defendant, would be responsible for upon which the plaintiff furnished him with as many papers as he wished to take, weekly, for about five months. No regular charge was made by the plaintiff in his books of account against the defendant or his nephew; but the plaintiff kept a written memorandum of the number of papers delivered weekly to the various post riders, and the name of the defendant’s nephew' appeared in that list, as one of the post-riders to whom the papers were furnished weekly.</p> <p>On this evidence, the justice gave judgment for the plaintiff beloW for 25 dollars and costs.</p>

THIS was an action of replevin, tried before Mr. Justice Van Ness, at the Rensselaer circuit, in 1818. Held: and he gave the deed to the purchaser. This deed, which was produced, was dated November 13, 1816, for the consideration of five dollars. The witness stated, that he and Brockway acted together, as to the sale of Chapman’s property ; that he did not know on which of the executions he made the levy on the property in the factory.

THIS was an action of ejectment brought to recover lands assigned to the lessor of the plaintiff for her dower, as the widow of Benjamin Depuy, jun., deceased, by admeasurers of dower, appointed for that purpose, by the surrogate of Ulster county, upon the petition of the widow. The cause was tried at the Ulster circuit, in November, 1818, before Mr. Justice Yates.

moved to set aside the capias ad resp. issued in this cause, and all proceedings thereon. It appeared, from the affidavits which were read, that the deputy sheriff arrested the defendant, about 2 o’clock, A. M., in his house. The front door of the defendant’s house was fastened, and was not used for the purpose of entrance.

<p>Rijc.gri-ichir m a tioM, \wi5 levied on by the sheriff, under a ji. fa., but not sold; and a collector of taxes, by virtue of a warrant against the defendant, af-terwards, dis-trained upon, and sold the same field of rye for a tax : field, that after the levy by the sheriff, under the execution, the rye was in the custody of the law; so that the collector had no right, afterwards, to sell it j and that the purchaser under him could not maintain tracer against the purchaser under the sheriff, who, in harvest time, cut and carried away the rye.</p>

MOTION to set aside a report of referees. It was in an action of trover for a horse and two cows. After the cause was at issue, the parties entered a rule of reference, by consent, in the book of common rules, in the clerk’s office. The report and affidavits were submitted to the court without argument.

IN ERROR, to the Court of Common Pleas of Rensselaer rornfv J Rawson sued Adams before a justice of the peace, and obtained a verdict and judgment for fifty dollars damages.

IN ERROR, on certiorari to a Justice’s Court. Smiley sued Eggleston in the court below, and recovered a judgment against him.

THIS was an action of assumpsit, tried at the Albany circuit, in October, 1818, before Mr. Justice Spencer.

THIS was an action of assumpsit, tried at the Columbia circuit, in November, 1818, before Mr. Justice Yates. and the The defendant was, in 1812, overseer of highways plaintiff was assessed to work on the highways within the defendant’s district, and when working with others, on the road under the direction of the defendant, they came to a turnpike gate placed at the intersection of the Rensselaer road with the Farmer’s turnpike road.

IX CRUOR, to the Court of Common Pleas of Onondaga county. The plaintiff below brought an action of trespass assault and buttery, and false imprisonment, against the defendant below, who pleaded the general issue, with notice of justifica-lion, to wit. that the plaintiff and one Tappin, on the 26th of June. 1817. confessed a judgment before the defendant, as a justice of the peace, under the act for the recovery of debts to the value of -25 dollars, upon which judgment…

THIS was an action of ejectment, tried at the Genesee circuit, in June, 1818, before the late chief justice, when a#ver-diet was taken for the defendant, subject to the opinion of the court on a case; and it was agreed between the attorneys of the parties, that if the court should be of opinion that the phdntiff ought to recover, that the postea should be made up accordingly, and a judgment be entered thereon for him; otherwise, judgment was to be entered for the defendant,…

<p>Where a party suanttoañiücé ⅛ that purpose, strument "to which he ⅛ par-⅞⅛ L claims a beneficial in-necessary'* for tl,e other party ecufimTínofo-eutioii of the proved T>y The 0⅞⅛? it ’as'Tvidenct in the cause.</p> <p>The circumstances of the names of the subscribing witnesses being tora off, will not exempt the party from the necessity of proving the hand-writing of the party who executed it, there being no evidence that the party producing the deetl had mutilated iC</p> <p>Where A., a lessee, agreed to sell the lease to B., for a certain sum, and endorsed his name on the lease, and delivered it to B.. who paid him the purchase money, and agreed to pay the rent in arrear, and to become due to the lessor in the lease: Held, that this was an agreement for a sale, and that the relation of landlord and tenant did not exist between them, and that, therefore, B. was not entitled to a notice to quit.</p>

was an action on a covenant of seisin in a deed, tried at the Saratoga circuit, in June, ISIS, before Mr. Justice Van Jsfess. The deed, from the defendant to the testator, was dated April 23, 1814.

THIS was an action of ejectment, tried at the Rensselaer circuit, in July, 1818, before Mr. Justice Van Ness. The plaintiff gave in evidence a deed from Jacob J. Van-derheyden, and Catharine his wife, (the defendant,) duly ae-knowledged, by which they granted and conveyed to the lessor of the plaintiff the premises in question, in fee, with Wcirrilllty.

THIS was an action of assumpsit, tried at the New-Yorlc sittings, in November, 1818, before the late chief justice. *The declaration… Held: that if the holder of a bill of exchange, accepted for the accommodation of the drawer, takes a cognovit from the drawer, for payment by instalments, he does not thereby discharge the acceptor; and that there was no difference between an acceptance for accommodation and an acceptance for value ; and that the cases of Laxton v. Peat,…

THIS was an action of assumpsit, tried before Mr. Justice Van Ness, at the Orange circuit, in December, 1818.

⅞ c r Cl, OS |-⅛ ⅛* s ^ ⅝ S §⅛? tí • rj O Ph G G O tí tí Cm sr P3 G J CD P3 ⅜-⅞ a o O tí • The cause was tried on the 10th of June, 1818, and the plaintiff, after proving the making of the note by the defendant, off ered to prove an endorsement on the note, in the hand-writing of the plaintiff, dated October 18th, 1811, acknowledging the receipt of thirty dollars, in part payment of the note.

TIMS was an action of assumpsit, tried at the Rensselaer circuit, in December, 1818, before Mr. Justice Spencer. The action was on a promissory note, dated August 10th, ]8Hi, made by the defendant for 600 dollars, payable six months after date, to Anthony L. Maxwell, or bearer, and by him endorsed to the plaintiff.

THIS was an action of debt brought by the plaintiff to recover 150 dollars, bet between the parties on the event of a horse race, under the 5th section of the act to prevent horse racing, &c. (1 N. R. L. 223. sess. 25. ch. 44. 1 Rev. Stai. 672.) which declares, that all contracts made, or sums of money or other thing staked or bet on any such race, d A witness for the plaintiff testified, that the plaintiff and defendant, on the 29th of October, 1818, made an agreement to…

<p>By ihe ,. em granted to of a ‘ract of ofTffe Champlain,¡mí on TothS ⅛ oftberiver⅛⅛-m¡ies’ sq¡,are" 5h,hw|“ftriver’ passed 'uT'thé patentee, and proper-V. lhcre be‘r|g of the river, nor r®s.trieUf°" expressed in the s™jM light V"/!*my [“,⅛,⅜⅞ patent, it not yt!nrfVg"av4?f¿ erection' of a iurafnearufé ¡.“ff'bvwhS salmon me prevent?d river from the nor” un<ier "the statute fo.r fish in certain isoi, (i K. & R. L. 420. sess. lake, is not indictable, as a public nuisance, either at the common law. 24. eh. 127.] and re-enacted April 5th, 1813, (2 N. R. L. 238, 36 sess. ch. 62. sect. 3. 3 Rev. Stat. 318.) "which required the owners of mill or other dams, which, on the 28th of March, 1800, were made across . any river or creek running into Lakes Ontario, Erie or Champlain, so as to obstruct the usual course of "•saimón in going up (hose rivers and creeks, to alter their dams, by making slopes to them, in the manner prescribed, so that salmon might freely pass over the dam.</p> <p>• Those statutes ought to be construed with an implied exception of such rivers or streams (not being navigable) as had been fully, and absolutely, granted by the state, without any reservation, or limitation in the use of them.</p> <p>And those statutes, so far as they affect the rights of Z. Platt and his assigns, to the absolute and exclu give enjoyment of the Saranac, within the bounds of the patent to him, or impair the obligation of the contract, are unconstitutional and void.</p>

IX ERROR, to the Court of Common Pleas, of Putnam county. Nickerson brought an action of slander against Burtch J - - —- - ° - in the court below.

THIS was a ease in partition. The petition for partition, under tire statute, (sess. 36. ch. 100. 1 N. R. L. 507. 2 Rev. Stat. 317, &fc.) and notices, were dated the 10th of November, 1817, copies of which notices were served on the above named defendants, in November, and the petition, &c. presented in January term, 1818.

THE prisoner was convicted, at the last court of Oyer and Terminer, held in the county of Niagara, of the murder of Thomas Branaghan. The record of conviction having been removed to this court, the prisoner was brought up, at the last term, on habeas corpus.

THIS was an action of assumpsit, brought to recover the freight and primage of ninety bales of cotton, shipped by the defendant, on board of the plaintiff’s vessel, to be carried from .A vw-York to… Held: that the contract or agreement between the consignor and consignee, as to the payment of the freight, did not vary the rights of the carrier, to whom the consignor was always liable for the freight.

THIS was an action of covenant. The declaration stated, that Thomas Barlow, on the 19th oí May, 1791, being possess-et* °f a term years of a lot of laud, in Manchester, in England, of which term 1690 years and upwards remained unex-P*recf % indenture of demise, between him and the plaintiff and three others, did grant, bargain, sell, and assign unto the Pontiff, his executors, &.C., the same lot or piece of land, &c., for the term of 1600 years, thence next ensuing, at the…

>7 THIS was an action of assumpsit against the defendant, as acceptor of an inland bill of exchange, dated Utica, the 2d of fnly, 1818, drawn by Soulden & Smith, directed to the defendant, requesting him, five months after date, to pay to Solomon dfFoIcott, (the intestate,) or his order, at the Bank of Utica, the sum of $‘2,942 and 43 cents, in current money of the city of New-York, for value received, &c., which bill was duly igeeepted by the defendant, on the 3d of July,…

<p>On a. scire fa-ters to revive whereT-sfi'Vjs joined on a pica and the VS' tiffs are non-suited at the tnai they must páyeoste.</p>

THIS cause having been referred, the referees made a report in favor of the plaintiff, in October, 1818. On the 25th of October, after the report was made, the plaintiff intermarried with William Tibbits. The plaintiff’s attorney proceeded, and entered up judgment on the report, the 4th of December, and issued an execution against the defendant. now moved to set aside the judgment and execution, and all proceedings thereon, for irregularity.

THIS was an action of assumpsit, on a promissory note, The declaration, beside a count on the note, contained money counts, and a count on an insimul computassent. The defendant pleaded non assumpsit to the first and second counts, and an account stated, and a note given and received as to the second count; to the third count, a judgment recovered in the Circuit, Court of the United.

THIS was an action against the sheriff of the county of Dutchess for a false return to an execution, and was tried at the Dutchess Circuit, in April, 1819, before Mr, Justice Woodworth, The plaintiffs gave in evidence a judgment against John Cowles in the Court of Common Pleas of Dutchess County, entered the 10th of September, 1816, for 1,921 dollars and 60 cents debt, and 10 dollars costs, and a fieri facias issued thereon, delivered to the defendant the 13th of October,…

THE defendant was indicted at a Court of Oyer and Ter-miner, held in Orange county, the 22d of September, 1817, for a nuisance, in obstructing a street or a public highway, in the village of Newburgh, on the 1st of April, 1817, by erecting a house jn the said highway.

THIS was an action of ejectment, for part of lot No. 81. in the town of Lansing, in Tompkins county, tried before Mr. Justice Woodworth, the 4th of June, 1819. A verdict was taken, by consent, for .the plaintiff, subject to the opinion of the court, on a case. John M. Pearson died seised of the premises in question, in February, 1809, leaving a widow and two daughters, his only children, the lessors of the plaintiff. Aurelia P., the widow, died in April, 1814.

THIS was an action of assumpsit, on a promissory note, dated at Bennington, the 15th of September, 1815, by which *the defendant, for value received, promised to pay to… Held: as the trustee of A., under a foreign attachment. (Staphorst v. Pearce, 4 Mass. Rep. 258.) So the promisor, in a contract not negotiable, but which is assigned in equity, cannot be held as a trustee of the promisee, after the assignment. (Foster v. Sentiler, 4 Mass. Rep. 450. 5 Mass, Rep. 210. 7 Mass.

THIS was an action of covenant. By an agreement under the hands and seals of the parties, dated September 20, 1817, the plaintiff covenanted to sell and convey to the defendant, by a good and sufficient warrantee deed, &c., a certain lot of land ; in consideration of which the defendant covenanted to pay to the plaintiff 1,600 dollars, as follows: 400 dollars to be paid down in money ; 150 dollars in obligations, at the same time, and on the execution and delivery of the…

THIS was an action of assumpsit, tried at the Steuben cir-euit. the loth of June, 1819, before Mr. Justice Woodworth, The plaintiff save in… Held: that though a person might lawfully purchase a slave, regularly sold by the sheriff under a judgment and execution against the owner, yet that such purchaser could not himself sell the slave; but this decision is hardly rec oncilable with that of Sable v. Hitchcock. The statute prohibits the importer of a slave from selling.

THIS was an ejectment brought to recover certain lots of land, in Argyle, in Washington county. The defendant, on the 3d of August, 1815, executed a mortgage of the premises to the lessor of the plaintiff, for securing the payment of 1,500 dollars, according to the condition of a certain bond.

IX ERROR to the Court of Common Pleas of Ulster county. Held: that entering into the bond was an admission of assets, and that he could not, afterwards, dispute it. But on a plea of plene administramt, the onus probandi lies on the defendant, and it was for the defendants to show a want of assets, if they could be allowed to do so. (Platt v. Robins and another, 1 Johns.

<p>WI'hmv several owners oí' mill-seats on a stream, have a common and equal right to the use of the water;, though no action lies against the owner of a imii above, for any damage which the owner of a mill below may incidentally sui-ter from the reasonable use of the water by the former, for his own benefit; yet the owner of the mill above has not an unlimited right to use the water as he pleases, or to stop the natural flow of the stream, so as to destroy or render useless the mills below And if he shuts down his gate, and detains the water for an unreasonable time, or lets it out in such unusual quantities as to prevent the owner of the mill below from using it, or deprives him of a reasonable and fair participation in the benefits of the stream, he will be answerable to the party injured to the extent of the loss he has thereby su&-</p>

The declaration contained several counts, one of stated, that whereas, &c., in consideration that the plaintiff, at the special instance and request of the defendant, would se^ and deliver to F. M. and J. A. divers goods, &c., of the value of 200 dollars, on a credit, to be paid on the 7th of June, then next: and that the plaintiff would, at the like special in- : . 1 .. . r , . . T, Jr , T stance and request, receive of and from the said / .

L\ ERROR, to the Court of Common Pleas of Washington county. Williams, as executor, &.c., brought an action of as-sumpsit against Martin, in the court below. The declaration contained three counts: I. An insimul computasscnt, with the testator, and a promise to pay him. 2. An insimul computasscnt, with the testator, and a promise to pay the plaintiff’, as executor. 3. An insimul computassent, with the plaintiff', as executor, and a promise to pay him.

THIS was an action of trover for a pair of horses, harness, and wagon, a table, clock, bureau, ten pictures, six chairs, &c. A judgment was recovered in this court by Roswell Reed against Thomas II.

<p>THIS was an action of ejectment for land in Hoosick patent, tried at the Rensselaer circuit, in December, 1818.</p> <p>The plaintiffs lessors having deduced a title to the premises from Jacobus Van Cortlandt, one of the original patentees, in 1688; the defendant’s counsel called on the plaintiffs counsel to produce the will of James Van Cortlandt, one of the anees-tors of the lessors, and through *whom they derived a title, which he refused to do. The defendant’s counsel then handed to him a written notice to produce it. It was objected that the notice was not sufficient, as it was not shown that the will was in Troy, (the place of trial.) The defendant’s counsel then called on the plaintiffs counsel, as a witness, to prove that the will was in his possession and in court; but the plaintiffs counsel refused to answer the question, alleging that his knowledge as to the existence and situation of the will was derived from what had been entrusted to him as counsel for the lessors of the plaintiff in the cause. The judge ruled that the counsel must answer the question, and he there-unoo testified, that the will was in his hands, in court, but refused to produce it. lhe judge then ruled that parol evidence might be given of its contents. To show the contents of the will, the defendant’s counsel offered in evjdence a deed, dated October 1st, 1816, executed by Augustus Van Cortlandt, one of the lessors, as surviving executor ^ames Van Cortlandt, for part of lot No. 43. in Hoosick patent, which had been duly acknowledged and proved, and which contained a recital of the will of James Van Cortlandt, dated the 23d of March, 1781. The plaintiff’s counsel objected to the admission of the deed in evidence ; but the judge overruled the objection, stating that, under the circumstances of the case, the deed and the recitals therein contained ought to go to the jury, as containing the admissions of one of the lessors of the plaintiff, that James Van Cortlandt, under whom he claimed, had made a will, and of the contents of that will, and of an outstanding title in Elizabeth Van Cortlandt, on the day of the demise laid in the plaintiff’s declaration ; and by which the other lessors were bound, unless they proved that the recital or admissions were not true in fact; and the counsel for the plaintiff, not attempting to disprove the truth of the recitals or admissions contained in the deed, the judge directed the plaintiff to be nonsuited.</p> <p>A motion was made to set aside the nonsuit, and for a new trial.</p> <p>1. The counsel for the plaintiff #ought not to have been compelled to testify as to the existence or situation of the will of James Van Cortlandt. The privilege of a counsel or attorney of not being examined as to any matters communicated to him while engaged in his professional capacity, is the privilege of the client, not of the counsel or attorney. (.Phillips’s Law of Ev. 103.) The judge, in overruling the objection, relied on the case of Baker v. Arnold. (1 Caines’s Hep. 258.) That case, however, if examined, does not warrant the principle stated in the marginal note to the report, and adopted in the Digest. ( Johns. Dig. 215.) Thompson, J., was decidedly of opinion, that the attorney was not bound to communicate any facts, the knowledge of which he had derived from his client in relation to his business. Livingston, J., thought the judge right in overruling the inquiry made of the attorney, after he had declared that all his knowledge was derived from the confidential communications of his client; and though Radcliff, J., was of a different opinion, yet the other two judges, Kent, J., and Lewis, Ch. J., are wholly silent on this point.</p> <p>2. The deed containing the recitals which were offered, was not competent evidence of the will. It appeared by the endorsement on it, that it was on record, and that the probate was in New- York, and being recorded before the 1 st of January, 1781, an exemplification of it, by the act concerning wills, (1 N. R. L. 364. sess. 36. ch. 23. s. 21. 2 Rev. Stat. 59. § 20.) was good evidence. (Jackson, ex dem. Golden, v. Walsh, 14 Johns. Rep. 407.) Again ; the existence of the will was not shown ; nor was there any proof of it, nor of any holding under it. The party must first prove the existence of an instrument, before he is allowed to give parol evidence of its contents. Where there • is a subscribing witness to a deed, proof of the confession of the obligor or grantor is not sufficient,, but the subscribing witness must be produced ; and in case he is dead or out of the state, títere must be proof of his handwriting. (4 Johns. Rep. 477. 2 Johns. Rep. 382. 3 Johns. Cas. 101.)</p> <p>3. But if the deed was admissible, it could only prove a title out of Augustus Van Cortlandi, not out of the other lessors. Here were joint and several demises ; and this %ourt, in such case, will allow a recovery on the separate demise of one of the lessors.</p> <p>Though an attorney cannot be compelled to testify relative to the estate, or affairs of his client, yet he is compellable to answer whether there are any deeds, where they are, to whom they were delivered, when he last saw them, and in whose custody they are, though he is not bound to produce the deeds, or to discover the dates or contents of them. (1 Maddock’s Ch. 174. 1 Haris Ch. i'r. 290.) This is the rule in the court of chancery, and in matters of evidence the rules of the courts of law and of equity are the same. In Baker v. Arnold, it was decided, that an attorney in a suit show the state of the instrument at the his hands. The privilege of the client attorney giving evidence of the date or may be examined to time it was put into extends only to the contents of the deed.</p> <p>As to the competency of the evidence ; the admissions of a party against his interest are good evidence; and where the suit is against several persons who have a joint interest in the decision, a declaration made fay one of them, as to a material fact within his knowledge, is evidence, not only against him, but against all the other parties who are jointly interested with him in the suit. {Phillips’s Law of Év. 73,74. 11 East, 539.) So, a release by one of two joint, plaintiffs is a bar to the action. (13 Johns. Rep. 236. 14 Johns. Rep. 172.)</p>

THIS was an action of assumpsit for woods sold and deliv-erod.

'fills was an action of assumpsit against the defendant, as drawer of two bills of exchange.

<p>I'he court may allow amendments in actions on penal statutes, as well as in other suits; but where m an action of debt, qui tam., under the statute for preventing usury, the writ which had been sued out in due time, and sent by mail to the sheriff of the county, had been lost, or miscarried j and the plaintiff, supposing it to have been served and returned, proceeded to file his declaration, &lc., the court refused to allow an alias capias to issue, as grounded on a return of non est inventus to the former writ, or to allow a ca-pias to be issued and hied with a return of non est inventus thereon endorsed, nunc pro tunc.</p>

<p>A IT HAL from the Court of Chancery. John Atkinson, being seised in fee of lot No. 98, in the township of Junius, on the 4th of June, 1804, by a written contract, agreed to sell to Lewis Birdsall, parts of the lot, or about 296 acres, at four dollars per acre; 400 dollars, part of the purchase money, to bo paid down, and the residue in three annual instalments; a. deed to be given to the purchaser, on payment of the second instalment, and a mortgage to be given by him to secure the residue of the purchase money. Birdsall paid A. the 400 dollars, and went into immediate possession of the land, and afterwards paid A. 172 dollars. He neglected to pay the residue, and after about two years, he contracted *to sell the land to Smith, one of the respondents. S. agreed to pay the balance due upon the contract to A.; and S., thereupon, 1 } r 7 entered into possession of the land, erected a dwelling-house thereon, and made other large and valuable improvements. On the 19th of October, 1818, a judgment was docketed in the Supreme Court, in favor of R. Harison, for 450 dollars debt, against Smith. In April or May, 1809, Smith contracted to sell 200 acres of the land to the respondent Perry, for above 2,000 dollars, who agreed to pay the balance due to A., and to pay the residue to S, when all judgments against the premises are settled; and gave his note to. Smith for 885 dollars, payable accordingly. The bill charged that Perry, when he so purchased of Smith, had full knowledge of Harison’s judgment. But P., in his answer, denied that he had any knowledge of it until after he purchased of Smith, and entered in possession of the land ; but the allegation in the bill appears to have been supported by two witnesses. Soon after this purchase, Perry purchased of Birdsall his contract with A., which had become forfeited, and surrendered it up to A. on the 28th of May, 1809. In July following, P. having paid A. I,050 dollars, the balance due on the contract, received from him a conveyance in fee for the 296 acres of land, the legal title having remained in A. until this conveyance.</p> <p>On the 25th of October, 1808, a test ji. fa. was issued on II.’s judgment against the property of Smith; and Birdsall, who was then sheriff of Seneca, sold the 200 acres at public auction, to the plaintiff, Bogert, the highest bidder, for 30 dollars, and executed a deed to him, under the judgment and execution, on the 1st of August, 1809. On the 18th of September following, the plaintiff tendered to P. 1,063 dollars and 40 cents, in full of the money P. had paid to A., and demanded a deed from him.</p> <p>On the 9th of May, 1811, Perry sold to the respondent Van Tuyl the whole 300 acres, for 5,000 dollars, of which 1,000 dollars was paid down, and the residue made payable in future instalments. The bill alleged that Van Tuyl purchased with full knowledge of all the facts above stated ; but this was denied by him, in his answer, and there was no proof of the allegation. On the 26th of July, 1811, the #plaintiff tendered to Van Tuyl, 1,215 dollars, and demanded a deed for the 200 acres, which was refused.</p> <p>The chancellor, in June, 1814, being of opinion that the plaintiff was not entitled to call on the defendant, Perry, to account for the amount of the sale to Van Tuyl, dismissed the bill with costs.</p> <p>For the reasons of the decree, which were assigned by the chancellor, vide 1 Johns. Ch. Rep. 52. 57.</p> <p>They cited Sand, on Uses, 188, 3 89, 190. 192. 2 Vernon, 585. 1 Johns. Ch. Rep. 46. 2 P. Wms. 736. 1 Eq. Cas. Abr. 384. 1 P. Wms. 278. 1 Gaines’s Cas. in Error, 47. 50, 51. 53. 57. 65, 66. 10 Johns. Rep. 223. 293. 3 Johns. Rep. 216. 1 N. R. L. 74. 1 Rev. Stat. 727. 500. 2 Powel on Mart. 615, 616. Stat. Rich. III. and 29 Car. 2. 1 Bro. C. C. 331. 2 Bac. Abr. 350. Ex. (C. 2.) 13 Edw. I. 4 Cota. Dig. 132 Ex-edition, (C, 14.) 2 Atk. 107. 1 Vesey, Jim. 434. Sugd. Vend. 120, 121. 2 Fonb. Eq. 143, and notes. Sugd. Vend. 484. 1 Atk. 384. 2 Atk. 630. 3 P. i I ins. 307.</p> <p>cited Sanders on Uses, 168. Shep. Touchst. 505. 1 Fonbl. Eq. B. 1. ch. 5. s. 7. n. 6, 2 Embl. B. 2. ch. 2. p. 29. n. 3. s. 2. 2 Bro. Ch. Cas. 337. 5 Johns. Rep. 345. 8 East Rep. 467. 4 Dow’s Rep. 230. 504. 4 Johns. Rep. 42. 7 Johns. Rep. 292.</p>

<p>ties, both par-quL-cTsuch'aii interest in its neither of them right to have thecontract foi-filled And \t one of the parties refuse to proceed lurther * Where an exec-utory contract has been entered into, so as to become binding on the par-so that the other is disabled ing his part of the contract, u is a violation oi the contract, for which Ae par-tv may have his action to recover damages who has been tire cause of the of the contract.</p> <p>A court of against penalties and forfeitures where the case admits of a certain compensation.</p> <p>A. covenanted with B>., in April, j83o, to make certain machinery, in dhe year, at a certain price, to be paid in instalments: on the 1st of August following, B. gave notice to A. that he could not go on, and that the contract was abandoned: and A. {the covenants being independent) brought an action at law against B. to recover the instalments due before the 1st of August, he having abandoned the work, because of the inability of B. to pay the sums according to the agreement.</p> <p>Hold. that, on B.’s confessing judgment in the suit at law. with leave to A. to enter it up, that the injunction which had been issued by the Court of Chancery should be continued until the hearing, and that proceedings be had in that court, either by a reference to a master, or by an issue at law, to ascertain the damag'es sustained by A., by the non-execution or rescinding of the contract : the answer of A. to the bill of B., alleging that the instalments due on the 1st of Angustfnnd sued for at law, did not exceed a just compensation for their damages in prosecuting the work to the 1st of August, and in the loss of their profits on the work, not being sufficient to rebut the equity on which B. relics for relief, by having on a judicial inquiry into the facts, the damages ascertained by a master, or on an issue of quantum tlamni‘ Jicatus.</p> <p>Where an answer to an injunction bill denies all the circumstances upon which the equity of the bill is founded, on a motion for dissolving or reviving the injunction, credit is given to the answer,</p>

The plaintiffs filed their bill for the purpose of having a policy of insurance corrected and amended, so as to change the national character n , , J? r 4 ot the vessel, as described m the policy, from an American to a Portuguese brig.

The defendant, Fonder, being indebted to the testator, Elisha Baldwin, on the 1st of October, 1806. executed, together with the plaintiff, as his security, a promissory note to E. is., for the sum of 33a dollars and 89 cents, payable on demand, with interest. In 1811, Fowler obtained his discharge under the insolvent act. It appeared in evidence, that in 1808, 1809, and 1810.

By an indenture of lease, dated the 18th of February, 1792, Philip Fan Cortlandt and Pierre Van Cortlandt, since deceased. leased to the respondents, and Robert Underhill, Thomas Burling, and William Burling, a mill-seat and parcel of land, situate on Croton river, contaminar seventy acres, for the term of twenty-one years, from the 1st of May, 1792, at the annual rent of forty pounds a year, to commence on the 1st of November, 1792.

<p>Where the party is sued at law on notes., «Hedged by him to be usurious, and he sutlers a verdict and judgment to be taken against him, without making any de-fence. or applying to the Court of Chancery, in due season, he is concluded, and is not entitled to relief in equity.</p> <p>An ment of a debt, usurious in its from the scrutiny creation, to a third person, with knowledge of the original -transaction, will not protect it of a court of equity.</p>

<p>APPEAL from the Court of Chancery. Vide 3 Johns. Ch. Rep. 23. S. C. under the title of Lawrence and others v. Dale and others.</p>

<p>Vide 2 Joans. Ch. Rep. 283. the points decided, and decree affirmed.</p>

THIS was an action on the case, originally commenced in .he Court of Common Pleas of the county of Washington. v o The declaration set forth, “ for that whereas all overseers of highways are bound, by the laws of the land, to repair and keep in order the highways within the several districts for which they shall be elected overseers: and whereas the said M. B. on the oth ot April, 1814, at the annual town-meeting, held at the hotel, in the village of Salem, in the town of…

The action in the court below was brought by the defendant in error, against the plaintiff in error, for criminal conversation with the defendant's wife. Held: that he could not bring one, though there was manifest error on the record. ( Camden v. Edie, I II. Bl.

John Matey, by an indenture, dated the third day of November, 1809, demised to Aaron Henry, of the city of New-York, a house, store, *and lot of ground, with the appurtenances, at the north-east comer of Water street and Beekman slip, for a term of six years from the first day of May, 1810, at an annual rent of 450 dollars.

<p>THIS was an action of ejectment, brought to recover lot No. 94, in the township of Brutus, in the county of Cayuga, in the military tract. For the facts of the case and the opinion of the Supreme Court, vide vol. 13, p. 504.</p> <p>On the trial of the cause below, the jury found a verdict for the defendant; and a case was made, on which the plaintiff moved to set aside the verdict and for a new trial; and the motion was denied by the Supreme Court. The case having been turned into a special verdict, a writ of error was brought, returnable to this court.</p>

<p>IN ERROR to the Supreme Court. This was an action of covenant brought by Port against Jackson. The declaration, a^ter stat‘ng a lease °f a lot of land in Manchester, in England, made by one Thomas Barlow to the plaintiff, for 1600 years, at annual rent °f 32 pounds 17 shillings sterling, which the plaintiff covenanted to pay to the said T. B. during the term, a^e§e<P that the plaintiff, being so possessed of the said term, &c., by indenture, on the 18th of August, 1792, demised, grante<h bargained and sold the premises to the defendant, subject to the payment of the said yearly rent to the said T. B., &c., and defendant, in and by the said indenture, covenanted, promised, and agreed with the plaintiff, that he, the defendant, would well and truly observe, perform, fulfil, and keep all and every the covenants, conditions, provisoes, payments and agreements mentioned and contained in the first mentioned indenture, and which, on the part of the plaintiff, his executors, &c. were, or ought, thereafter to be paid, done, or performed, &c. The plaintiff then averred, that on the 25th of March, 1800, 83:2 pounds 13 shillings sterling, or the rent of 24 *years and a half, remained in arrear, and unpaid to the said T. B., and that the defendant, although often requested, had refused, and gtjj} refuse(g t0 pay the said sum of 832 pounds 13 shillings, which still is wholly due m arrear, and unpaid to the said I. &c. Vide S, C. ante, p. 239—247, for the pleas of the de-tendant, to which the plaintiff demurred, lhe court gave judgment for the plaintiff below, on which the defendant brought * 5 » a Writ OI 00*01* to this COUrt</p> <p>in error, contended, that a good and sufficient breach of the covenant was not assigned in the declaration. ( Cornyn’s Dig. Pleader, C. 44. 6 Johns. Rep. 49.) That this was a covenant of indemnity, that is, to save the de-fondant in error harmless from his covenant to pay rent to Barlow. If taken strictly as a covenant to pay the rent, then it must be paid at the day ; and if not so paid, the plaintiff* in error would be liable on his covenant, although the rent may have, in fact, been paid by the ter-tenant to the chief landlord, before suit brought. The chief landlord has a good right of action against the ter-tenant for the rent, by privity of estate. The good sense, and reasonable construction of the covenant, then, is, that Jackson will save Port harmless from the payment of any rent. The declaration, therefore, should have alleged, that P. had paid the rent. (3 Comyn’s Dig. tit. Condition, (I.) 1 Boll. Abr. (M.) Covenant, E. 3. Bac. Abr. tit. Covenant, 1.) Though a plea of non dcmnificatus would not be good to this declaration, yet, if the breach had been properly assigned in the declaration, it would be a good plea. (5 Comyn’s Dig. Pleader, 2 W. 33.)</p> <p>insisted, that this was a covenant to pay the rent, and not a covenant to indemnify. They cited 1 Chitty PI. 326. 331. Com. Dig. Pleader, C. 45. C. 46, 5 Johns. Rep. 168. 8 Johns. Rep. 111. 7 Johns. Rep. 376.</p>

<p>IN ERROR to the Supreme Court. Hunt recovered a judg-inent against Brooks in the Supreme Court, in an action of'cov-enaut, for 4,773 dollars and 46 cents. The record was filed arid judgment docketed the 29th of August, 1804. A test.fi. fa. was issued to the sheriff of Montgomery county, who collected of thc goods and chattels of the defendant, 64 dollars and 76 cents. In 1805, a ca. sa. was issued for the residue, on which the defendant was taken and imprisoned from that time until June, 1808, when he was discharged from imprisonment, by the Court of C. P. of M, under the “ act for the relief of debtors with respect to the imprisonment of their persons,''’ passed the 24th of March, 1801, (sess. 24. ch, 66. s. 4, 5. 7.) and the “act for giving relief in cases of insolvency, for the bailing of prisoners, and for other purposes,” passed the 8th of April, 1808, (sess. 31. ch. 163. s. 7,8, and vid. 1 N. R. L. 348. 2 Rev. Stat. 16, &c.) which provided that a debtor so discharged should not, afterwards, be arrested or imprisoned for the same debt, but “ the judgment should remain in force, and execution might, at any time, be taken out thereon against the goods and chattels, lands and tenements, of such debtors, (necessary wearing apparel and bedding for him and his family, and the tools of his trade, excepted,) as if he had never before been charged in execution and released from prison.” All the real and personal property of B. was assigned, by order of the Court of C. P. to Henry F. Yates, for the Use of the plaintiff, &c. On the 2d oí December, 1811, B. being impleaded in certain suits, within the meaning of the “ act for the benefit of insolvent debtors and their creditors,” passed the 3d oí April, 1811, (sess, 34. ch. 123.) presented his petition to the first judge of Montgomery county, pursuant to the act, and having complied with all things required by the act, was, on the 7th of February, 1312, by a certificate under the *haud and seal of the judge, discharged from all his debts. On the 1st of March, 1819, Hunt caused an alias test. ft. fa. to be issued against the property of Brooks, founded on the former judgment, and on the provisions contained in the acts of 1801 and 1808, as above stated.</p> <p>In the last May term, Brooks moved the Supreme Court to set aside the alias test. fi. fa. on the ground of his discharge from all his debts, under the act of 3d of April, 1811. The S. C., after taking time to advise until August term last, denied the motion, with costs, (vide Mather v. Bush, 16 Johns. Rep. 233—256. Roosevelt v. Cebra, ante, p. 108.) on the ground that the case could not be distinguished from that of Sturges v. Crowninshicld, (4 Wheat. Rep. 122.) in which the Supreme Court of the United States decided that the act of the 3d of April, 1811, so far as it discharged the debtor from all liability for previous debts, was an act impairing the obligation of contracts, within the meaning of the constitution of the United States, and, therefore, void.</p> <p>In October term last, Brooks again moved to set aside the alias test fit. fa., and for leave to issue an audita querela. The court below granted the motion for the audita querela, but said that it should not operate as a supersedeas to the execution.</p> <p>On the denial of the motion in August term, Brooks caused a record to be made up and signed and filed in the Supreme Court, which contained the notice of the motion made in May term to set aside the execution, and the affidavits on which it was founded and resisted, and the order of the court thereon; and upon that record brought a writ of error to this court. On filing the return to the writ of error, the defendant in error alleged diminution, and obtained a certiorari, to which was returned copies of the notice, affidavits, &,c., on a motion for the amendment of the execution, which had been granted in August term, on payment of costs.</p> <p>The chief justice having assigned the reasons for the order of the court below,</p> <p>in error, moved to quash the writ of error, on the ground that a writ of error would not lie on such an interlocutory proceeding or order of the *Supreme Court, on a special motion; and, also, that the plaintiff in error, by applying for his remedy by audita querela, had waived his right to a writ of error, admitting even that he was entitled to it.</p> <p>The court said, they would reserve the question on this motion, and directed the counsel to proceed and argue the cause, in connection with it, on the merits of the case, as they appeared on the record.</p> <p>As the court decided that the writ of error should be quashed, it is unnecessary to state the arguments of counsel, on the merits.</p> <p>cited Clason v. Shotwell, (12 Johns. Rep. 31.) to show that a writ of error would lie in this case.</p> <p>said, that this being a mere interlocutory order or proceeding, came within the very distinction taken and adopted by this court, in the case of Clason v. Shotwell, between a final determination of a cause on its merits, and an interlocutory order of the court.</p>

That on the 27th of March, 1788, the legislature repealed the act so made in favor of Fitch, and passed an act granting a similar right to Robert R. Livingston for twenty years ; and on the 5th of… Held: used, and enjoyed, subject to the general laws of the land, such as laws establishing turnpike roads and toll bridges, or the exclusive right to a ferry, or laws for preventing and removing nuisances ?

The respondent, a native merchant of* Canton, in China, in January, 1813, filed his bill in the Court of Chancery, stating, particularly, various shipments and consignments of goods by the respondent, to the appellants, (ship owners and commission merchants,) residing ⅛ Neic- York, for sale, &c., and other transactions between them, between the years 1805 and 1813 ; that the appellants, by Obed Chase, their authorized agent, on the 19th of January, 1811, gave the plaintiff’…

The bill filed the 25th of May, 1815, by the respondents against the appellants, stated, among other things, that in the year 1813, the appellants agreed to enter into copartnership for the purpose of carrying on the business of watch-makers and jewellers, under the firm of Erastus Barton & Co., and written articles of co-partnership were executed by them on the 24th of January, 1814, which were set forth in the bill.

APPE AL from the Court of Chancery. The pleadings and proofs in the court were voluminous. The facts material to be stated will be found in the opinion of this court, %nd in the report of the case in the court below. ( Vide S. C. 1 Johns, Ch. Rep. 550—560. and 3 Johns. Ch. Rep. 6' ' '

The bill filed by the respondents, on the 10th of March, 1813, against #the appellants and Henry Cruger, was for an account of the real and personal estate of Mary Jaques, deceased, late the wife of… Held: either that those expressions had not that meaning, or, if they had, that they were inconsistent with the idea of absolute ownership, and, therefore, to be disregarded.