Volume 17 — Wendell's New York Reports

<p>Certiorari. This was a certiorari to review the decision of the judges of Queens, upon an appeal made to them from the doings of the commissioners of highways of the town of North Hempstead. Previous [10] to January, 1830, there were two roads which ran down to Hemp-stead Harbor, and united at a place called Pearsall’s landing; and previous to that day the shore of the harbor immediately adjoining the roads was used by the inhabitants of North Hempstead as a place of deposit for manure, wood and other articles brought there by vessels frequenting the harbor. In January, 1830, the old roads were discontinued by the then commissioners of highways of the town, and a new road laid out running nearly parallel with the shore, and at a certain point south of where the old roads terminated on the harbor the commissioners laid out a road of the width of only three rods, extending from the harbor east to the new road thus laid out. The owner of the soil thereupon enclosed in fence all the land which had before been used as roads and as a landing place. In March, 1835, the commissioners of highways laid out what they designated a highway or public landing place, embracing not only all the land on the shore formerly occupied by the two old roads, but also a space of about the same width lying north of the old roads, and the whole extending east from the harbor to tlie new road laid out in 1830. The commissioners reduced their doings to writing, and caused ■the same to be recorded in the town clerk’s office. From these proceedings the owner of the soil appealed to the judges of Queens ; and on the hearing before them the above facts appeared. The commissioners offered to prove that the whole of the premises laid out by them in 1835, adjoining the shore and extending east to the new road, except a triangular piece immediately adjoining the new road, was an ancient l nding place, and had been so used for twenty years previous to 21st March, 1827, and for forty years previous to the hearing, arid that the triangular piece was in January, 1830, dedicated by the owner of the soil to the use of the public as part of the landing place, and had so been used since that time. The judges refused to receive such testimony, and after consideration reversed the doings of the commissioners, who thereupon sued out this certiorari. The case was submitted on written arguments, by</p>

This was an action of assumpsit, tried at the Monroe circuit in May, 1835, before the Hon, Addison Gardiner, one of the circuit judges. This suit was brought by the plaintiff as sheriff of the county of Monroe, to recover the poundage and other fees upon a ji. fa. issued by the defendant attorney for the plaintiffs in the execution. The amount directed to be levied was about §4,200 with interest.

<p>A certiorari does not lie to a justice of the peace before whom summary proceedings are had to inquire into an encroachment upon a public highway or landing place, under the “ act regulating highways and bridges in the counties of Suffolk, Queens and Kingsand where such writ has issued, upon the coming in of the return it will be quashed.</p> <p>It seems that the acts of a justice in such a proceeding can not he reviewed on certiorari ¡ but that when a suit is brought to collect the penalty, and the certificate of the jury is produced in evidence, it may be objected that the proceedings before the justice were not conformable to the statute, (a)</p>

Evidence. This case was heard before referees, who made a report in favor of the plaintiffs. The defendants moved to set the same aside, and among other causes urged in support of the motion, they insisted that one McCollum had been improperly admitted as a witness for the plaintiff.

This was an action of assumpit, tried at the Washington circuit, in November, 1834, before the Hon Esek Cowen, then one of the circuit judges. The plaintiffs read in evidence a note given to them by the defendant for $93'53, bearing date 9th July, 1833, payable one day after date, and rested. A, son of the defendant proved that in March, 1834, by the direction of his father, he went to the office of Messrs.

This was an action of ejectment, tried at the Tompkins circuit in June, 1835. before the Hon. Robert Monell, one of the circuit judges.

False imprisonment. The plaintiff declared in trespass for false imprisonment.

The plaintiff brought an action on the case against the defendant for selling property belonging to one Van Schaick. a tenant of the plaintiff, and not paying over a year’s rent pursuant to notice; the declaration also contained a count in trover. The cause was tried at the Montgomery circuit in November, 1834, before the Hon. Esek Cowen, then one of the circuit judges.

Demurrer to pleas. The plaintiff declared, alleging that, the defendants, “ Trustees of the first Baptist Society of the village of Brockport,” on, &c., at, &c. made a promissory note, whereby they promised to pay him $260, in one year from, &c., in the usual form of a count on a promissory note. The declaration also contained the common counts. The defendants pleaded, 1.

m This was an action of ejectment, tried at the Herkimer circuit, in September, 1834, before the Hon. Hiram Denio, one of the circuit judges. The parties are owners of adjoining lots. In 1832, the plaintiff caused a survey to be made of the lot owned by her, and it was discovered on such survey that the division fence between the,two lots was not on the true line, that it encroached upon the lot of the plaintiff from 40 to 80 links, the fence being crooked.

This was an action of aisumpsit, tried at the Onondaga circuit in October, 1834, before the Hon. Daniel Moseley, one of the circuit judges. The suit was brought on a bank check in these words: “ Syracuse, January 31, 1831.

Libel. The plaintiff in his declaration set forth a publication which appeared in a newspaper, alleging it to be libellous, and charging the defendant with having caused it to be published. The alleged libel [50] is in these words: “To the public. The following statement has been made by a respectable and responsible person, in the presence of Chief Justice Savage and E. C. Delavan.

This was an action of replevin, tried at the Onondaga circuit in March, 1835, before the Hon. Daniel Moseley, one of the circuit judges. The plaintiff declared for the taking of two horses. The defendant justified the taking as a deputy sheriff under an execution against one Burdick, in whose possession the property was at the time of the levy, viz., on the 27th May, 1833.

Demurrer to declaration. The plaintiffs in the commencement of the declaration stated themselves to be assignees of Joseph Bussell, Esquire, sheriff of the county of Warren, and complained of the defendants for [60] that they render to the plaintiffs $100, which they owe to the plaintiffs and from them unjustly detain.

Libel. The plaintiff in his declaration stated, by way of inducement, that on the 19th April, 1830, a rail road company was incorporated, called the Canajoharie & Catskill Rail Road Company, for the construction of a rail road from Canajoharie to Catskill, and that on the 14th March, 1831, a bank called the Tanners’ Bank was incorporated, to be located in the village of Catskill; that the whole amount of the capital stock of the rail road company was subscribed, a portion…

Error from the Columbia common pleas. This was an action of debt on an appeal bond, executed in 1828, under the justice’s act of 1824. conditioned that if Hayward should prosecute with due diligence an appeal taken by him from a justice’s judgment rendered against him in favor of Van Deusen and Forrest, ir pay the amount of damages recovered against him before the justice, together with the interest thereon and the costs of the [68] appeal, or surrender his body in execution…

• Error from the Erie common pleas. Dwight brought an action of assumpsit against Driggs, and declared against him for that on the 15th March, 1834, it was agreed between the parties that in case the plaintiff should procure one Calvin Nelson to become surety for the rent, the defendant would let to the plaintiff a tavern stand 'and all the appurtenances thereto belonging (excepting certain premises specified,) situate at Tonawanda, for the term of one year at a rent of…

This was an action of ejectment, tried at the Westchester circuit in January, 1835, before the Hon. Charles H. Ruggles, one of the circuit judges.

Quo warranto. On the 4th May, 1836, the attorney general on the relation of Jonas Rlatner, junior, filed an information in the nature of a quo warranto, charging the defendant with exercising the office of constable, m the town of Cherry Valley, since the 2d March, 1836, without any legal election, appointment, warrant or authority whatsoever; that at the annual town meeting of the citizens of Cherry Valley on the first Tuesday of March, 1836, the electors of the town…

Error from the Chenango common pleas. Avery and Lathrop, as overseers of the poor of the town of Sherburne, commenced a suit by summons, in a justice’s court, against Slack.

Demurrer to declaration. The plaintiffs declared in case, for that whereas they, on, &c., at, &c., purchased of the defendant, and ho then and there delivered to them a large quantity of gypsum, being a commodity and article of trade, as and for 380 tons of gypsum; and that the defendant, on, &c., at, &c., in weighing the said quantity of gypsum, in order to deliver the same to the plaintiffs, pursuant to the said purchase, did then and there use certain weights, that is to…

Error from the Tompkins common pleas. Wilsey sued Hanmer in trespass. for taking a horse by virtue of an attachment illegally issued by a jus tice of the peace. Discovering the error in the proceeding, the constable, who had taken the horse by the direction of Hanmer from the stable of Wilsey, returned him to the stable and gave Wilsey notice of the fact, who said he would not receive the horse.

<p>This was an action of assumpsit, tried at the Schenectady circuit, in October, 1834, before the Hon. James Vanderpoel. one of the circuit judges.</p> <p>The plaintiffs claimed to recover against the defendant as the third en orser of a bill of exchange drawn by Lucian Tuffs on Messrs. Rice & Co., for §1500, dated 1st March, 1834, payable thirty days after date, to the order of the drawer; and endorsed first by the drawer; secondly, by William Rice & Co.; and thirdly, by the defendant. On the part of the defence it, [95] was shown that on the 11th July, 1834, Tuffs presented at the counter of the Commercial Bank his check on that bank for $1502, and tendered $10 in cash, and demanded the bill of exchange, which the then cashier of the bank refused to deliver up. At the time of the presentment of the check, Tuffs had on deposit, in the bank, the sum of $1505‘04 provided that the bank was not authorized at that time to charge his account with $900, the amount of a draft drawn by him 7th October, 1833, on Messrs. Ridgeway & Leversee, of Philadelphia; the circumstances in relation to which are the following: The draft for $900, was payable ten days after date, was endorsed by one E. H. Cook, and discounted by the plaintiffs who paid the money therefor to Tuffs. The draft was never forwarded to Philadelphia, or presented to the drawees for acceptance or payment, and seems to have been overlooked until 7th June, 1834, when an interview took place' on the subject between Bartow, the then cashier of the bank, and Tuffs, the drawer. The cashier testified that in this interview, Tuffs told him that he had settled his accounts with Ridgeway & Leversee. and had withdrawn his funds from their hands; that the draft need not be sent on acceptance or payment and that he would call the next day and settle or arrange the matter; but that he had subsequently refused to do so. The defendant having executed a release to Tuffs, as the prior endorser upon the bill in a suit, called him as a Witness. The plaintiff’s counsel insisted that he was interested notwithstanding the release, and objected to his being sworn but the objection was overruled. The defendant then offered to prove by Tuffs that the draft for $900, was drawn and the money received thereon by Tuffs, for the benefit of Cook, he, Tuffs, having no beneficial interest in the matter; that he appropriated the money in the purchase of flour for Cook, shipped it to Messrs. Ridgeway & Leversee, who sold it and paid over the avails to Cook. The plaintiffs objected to this evidence, unless the defendant could bring knowledge of these facts home to the plaintiffs. The defendant disclaiming the ability to do so, the evidence offered was rejected by the judge Tuffs then testified, that he received his accounts from Ridgeway & Leversee about 1st February, 1834, showing a balance against him of 717-54. which he paid; the balance thus paid, Cook was bound to pay, as between him and Cook. When the account of Ridgeway & Leversee was received by him, he did not examine it particularly, but he handed it over to Cook, and did not again see it until June or July. He did not know that the draft had not been sent to Philadelphia, nor was he aware that it had not been paid until so informed by the cashier on 7th June. Cook was in good credit until the first day of April, when he failed and absconded. He further testified that between Albany, where he resided, and Philadelphia, communications could be had in 24 hours. In relation to the interview between him and the cashier on the 7th June, he testified that in answer to a question put to him by the cashier as to how he proposed settling the draft for $900, he told the cashier that if he was obliged to settle it he supposed he should have to do it; and that after advising with counsel he called at the bank and gave notice that he would not pay the draft. At the close of his testimony Tuffs stated on his cross-examination that the defendant in this cause had nothing to do with the $900 draft, and that if the plaintiffs recovered the whole of the $1500 draft, he, the witness, would lose $900 by Cook. The plaintiffs’ counsel thereupon insisted that it was now apparent that the witness had a direct interest in the result of the suit, and asked the circuit judge that his testimony be stricken from the case; which motion was denied. The judge thereupon charged the jury that if Tuffs had sufficient funds in the bank to meet the payment when he offered his check, the defence was sustained; that the bank had the same right as an individual to apply such funds to any demands they had against Tuffs, but not otherwise; that the only question for the jury to determine was, whether Tuffs made a promise to the bank to pay the $900 draft after he knew that it had not been presented to the drawees, and if he had not made such promise the bank had no right to charge it to his account. That the testimony upon that point was conflicting, and it would be their duty to determine whether the pro- [97] mise had been sufficiently proved. The jury found for the defendant. The plaintiffs ask for a new trial.</p>

This was an action of covenant, tried at the Ontario circuit in June, 1834, before the Hon. Daniel Moseley, one of the circuit judges. The suit was commenced in August, 1829.

This was an action of ejectment, tried at the Kings circuit in October, 1833, before the Hon. Ogden Edwards, one of the circuit judges. Held: that if out of possession he should enter, and if in possession should explicitly evince his intention to defeat the conveyance.

This was an action of covenant, tried at the Westchester circuit, in Janu ary, 1835, before the Hon. Charles H. Rüggles, one of the circuit judges. Held: that the breach of the covenant took place when the Paddocks, in the spring of 1831, commenced sawing mahogany on the mill established by them, and he therefore refused to nonsuit the plaintiff.

<p>In an action of ejectment for dower, where the defendant was purchaser and entered into possession by virtue of a conveyance from the grantee of the husband, it was held, that the defendant was estopped from showing that the husband had not title to the premises, and that lie (the defendant) after his purchase from the grantee of the husband, on an action being brought against him by the real owner for the recovery of the land, had obtained by purchase the true and paramount title.(a)</p>

<p>On the refusal of a court of common pleas to set aside a report of referees for alleged errors of the referees, if the losing party desires to review such decisions, he must procure a statement of facts not the evidence of the facts, to be drawn up under the direction of the common pleas, and placed upon the record in the form of a special or supplementary report of the referees, in the nature of a special verdict or bill of exceptions (a)</p>

Error from the superior court of the city of New York. Van Duzer declared upon an agreement made between him and De Groot, whereby the defendant promised to receive and pay the full amount of all notes of the Washington Banking Company, which should be taken by the plaintiff as an exchange broker, in the city of New York, in consideration of a discount of one-eighth of one per cent, to be allowed by the plaintiff upon all such sums which should thus be redeemed.

This was an action of assumpsit, tried at the Oneida circuit in April, 1834, before the Hon. Essex Cowe.v, then one of the circuit judges. This suit was on a guaranty signed by the defendant and addressed to the plaintiff in these words: “ You may let the bearer, Mr. Horace Putnam, have, in such articles as he may want out of your store, to the amount of seventy dollars, if he wishes to get that amount, and 1 will be accountable to you for that sum.

<p>In it proceeding under the statute to prevent the commission of crimes, where the examination of the complainant reduced to writing subscribed and sworn to by him, contains matter sufficient to authorize the issuing of a warrant of arrest, the justice who issues the warrant has jurisdiction, although no complaint in writing, separate and distinct from the examination, is made.</p> <p>In a warrant of commitment, issued against a person accused, for refusing to give security to keep the peace, it is not necessary to allege the offence which he is charged to have threatened to commit; it is enough to state the requirement to give security, and his refusal.</p> <p>It is not necessary that the warrant of arrest should contain a formal adjudication that there is reason to fear the commission of the offence threatened.</p>

Demurrer to plea. The plaintiff declared on a promissory note for $17,82 dated 2d May, 1836, payable on demand. The declaration also contained the common counts.

Error from the Yates common pleas. Eaves and Henderson in a justice’s court, and declared on a joint and several promissory note, given by Henderson and one George B. Nichols to the plaintiff, for $28‘84, dated 30th March, 1833, payable six months after date. The defendant pleaded the general issue and gave notice of set-off. The cause was tried before the justice, who rendered judgment in favor of the plaintiff.

Demurrer to plea. The plaintiff declared in case that he bought of the defendant certain real estate, situate in Upper Canada, which the defendant fraudulently represented to be free and clear of all incumbrances; that he paid $1500 for the land, and received of the defendant a deed for the same, bearing date 1st May, 1882; that previous to the execution of the deed, to wit, on, &c., the defendant had executed a mortgage of the same premises to one J. McA. to secure the…

Demurrer to plea. The plaintiff declared on the common money counts.

Error from the superior court of the city of New York. A suit was commenced in the name of the mayor, aldermen and commonalty of the city of New York, in a justice’s court against Harker.

• Statute of limitation. The declaration in this case is in trover, for the conversion of large quantities of bank bills, amounting in the whole to twenty thousand dollars; the day of the loss and conversion, laid in the declaration, is the 19th June, 1833. The suit was commenced January term, 1834. The defendant pleaded, 1.

• Error from the Columbia common pleas. Robinson commenced a suit against Rockfeller in a justice’s court in May, 1833, and declared against him generally for money lent and advanced by him to the defendant. The defendant pleaded a former suit between the same parties in bar of a recovery. The cause was tried before a jury. The plaintiff offered in evidence a note given by the defendant payable to James Powers or order, dated 1st June, 1822, transferred to the plaintiff.

Abatement of suit. The testator sued Smith, late sheriff of Chenango, for a fa Ise return. The defendant obtained two verdicts in his favor, both of which were set aside by this court (see 4 Wendell, 332, and 12 id. 404). Pending the motion to set aside the second verdict the testator died, and his executors now sue out a scire fticias to revive the suit.

Libel. The plaintiff declared in slander for the publishing of a libel imputing to him corrupt conduct in his office of a senator of this state; his term of office having expired long before the publication. The defendant put in a general demurrer.

<p>Proceeding under the statute to prevent the disturbance of religious meetings. Leroy Fairchild, a justice of the peace of the county of Chenango, issued a warrant against David H. Fuller, under the statute to prevent the disturoance of religious meetings, stating a complaint on oath against Fuller, for the sale or gift of ardent spirits, within two miles of the place where there was an assemblage of people, met for religious worship (1 R. S. 647, § 64). Fuller was arrested by a constable, and taken before Abraham Tillotson, another justice of the peace of the same county, to whom the constable delivered the warrant issued by Justice Fail child, with a return endorsed thereon that he had arrested Fuller and that he was then in custody; and at the same time stated to Justice Tillotson that he had brought Fuller before him in consequence of the absence of Justice Fairchild, and that [212] Justice Tillotson was the nearest magistrate; “ which facts (Justice Tillotson returns), were known to me to be true.” Fuller objected to the jurisdiction of Justice Tillotson. The complainant alleged that Justice Fairchild was absent, and insisted that Justice Tillotson had jurisdiction. Fuller put in a formal denial in writing that Justice Fairchild was absent concluding the same by putting himself upon the country. The justice thereupon determined, without any proof, that Justice Fairchild was absent, and decided that himself had jurisdiction. Fuller refusing to answer the complaint, the justice, as he states in his return, “ did, in pursuance of'the statute in such case made, enter upon my minutes the plea of not guilty for the said David H. Fuller.” Fuller then put in a formal demurrer to the sufficiency of the warrant; the complainant joined, and the justice decided the warrant to be sufficient, and then without proof or inquiry into the truth of the complaint, imposed a fine of $15 upon Fuller, who refusing to pay the fine or to give security for its payment, the justice drew up a record of -conviction and issued a warrant to commit him to the jail of the county. The proceedings were brought before this court on a common law certiorari.</p>

Demurrer to declaration. This cause came up upon a demurrer to the second count of the declaration, in which it was stated that the defendant, on, &c., at, &c., made two other certain promissory notes, his own proper hand being endorsed upon the back thereof, and the proper hand and name of Justice Coleman being thereunto subscribed. “ and then and there delivered the said last mentioned notes to Edward C. Howard, which said last mentioned notes are in words and figures…

<p>In an action for malicious prosecution forprocuring the indictment of the plaintiff for obtaining goods by false pretences, evidence that the plaintiff had been guilty- of conduct, which to men unskilled in the technical rules of law, would excite a well grounded suspicion that a crime had been committed, is sufficient to warrant a verdict for the defendant on the ground of the existence of probable cause for criminal prosecution, (a)</p> <p>Thus, where a party who had been a member of a firm, obtaining goods from another after the dissolution of the firm and gave for the goods the accountable receipt of the firm, without making any representation whatever, the vendor parting with the goods upon hia previous knowledge of the existence of the firm, and not upon the assumption by the purchaser of a character which did not belong to him, it was held, that although an indictment for obtaining goods by false pretences did not lie, the conduct of the party was such as to alfovd probable cause for the prosecution, and entitled the defendant to a verdict in an action for malicious prosecution—and where under such circumstances a jury found for the plaintiff, the verdict was set aside and a new trial granted.</p> <p>The omission of the complainant in consulting with the district attorney previous to submitting the case to the grand jury, to state the circumstances under which the vendor parted with his goods, does not destroy the defence.</p> <p>In an action for malicious prosecution, damages for an abuse of the process of the law by cruel and oppressive conduct are not recoverable unless a count charging such abuse is inserted in the declaration; and such count, it seems, may be joined with a count for malicious prosecution.</p>

Error from the superior court of the city of New York. The fire department, in January, 1829, commenced an action against the defendant in the superior court of the city of New York, and claimed to recover four penalties of $400 each, for the erection of four buildings within the fire limits of the city without party or fire walls, rising six inches above the roofs of the buildings, contrary to the statute, &c. On the trial it was proved, that in the autumn of 1827, the…

<p>The declaration in this case was on a promissory note; it also contained a count for goods sold, the common money counts, and an account stated. The defendant pleaded the general issue. The cause was heard before referees, who made a special report. On the hearing, the note declared on was produced, and the signature of the defendant proved. It was in this form: “ $334. Herkimer, March 14, 1833. Six months after date, I promise to pay to the order of Messrs. Clute and Bailey, at the Mohawk Bank, three hundred and, thirty-four dollars, value received. William Small.” The defendant objected to its being read in evidence, alleging that it had been altered in a material part after he had signed it. It was' then proved that the whole of the note, except the words and thirty-four, was in the handwriting of the defendant, and that those words were in the handwriting of Clute. one of the plaintiffs. The insertion of the words, and thirty-four, was thus explained: The plaintiffs produced an account of merchandise furnished by them to the defendant, which Clute took for the purpose of calling on the defendant for a settlement, and which he afterwards brought back, together with the note in question. On the account was a statement in the handwriting of the defendant, showing a balance against him of $333*21. It was also proved, that on the 19th March, 1833, the plaintiffs, by their clerk, wrote a letter to the defendant in these words: CI We have just observed that the note you gave our Mr. Clute for $334, is so expressed in figures, but is written for only three hundred dollars; the thirty-four being omitted. Piease send us your permission to insert the words deficient.” This letter was produced by the defendant on the hearing; no answer was returned to it when it was written, nor was any answer returned to a second letter of the plaintiffs of the same import. The plaintiffs further proved by their attorneys, that they sent copies of the declaration in this cause to a deputy sheriff to serve on the defendant at the commencement of this suit; that the deputy returned to them one of the copies with a certificate of service endorsed thereon, and that in the letter enclosing such copy, the deputy wrote that the defendant said he would pay the plaintiff’s demand, but no more than five dollars costs.. The letter was not produced, the attorneys proving it to be lost. The deputy sheriff testified that at the time of the service of the declaration, which was on the 27th day of November, 1833, the defendant made some offer of settlement, but he did not recollect what it was; nor did he recollect the contents of the letter written by him, but thought it probable that it contained the proposition made by the defendant, who directed him to make some proposition to the plaintiffs, and what he wrote the plaintiffs’ attorneys was undoubtedly as directed by the defendant. The proof of the contents of the letter was objected to. It was further proved, that in the autumn of 1833, after the declaration was received by the deputy sheriff, but before its service, the defendant directed a third person to call upon the plaintiffs and pay a note of three hundred dollars and upwards, which they held against him, but to pay no costs. He called accordingly and offered to pay the note, but being directed by the plaintiffs’ clerk to call upon the attorneys, and having no instructions to pay costs, he did not call upon them. Upon the evidence the cause was submitted to the referees; tho counsel for tho defendant insisting, 1. That the note was void on account of the alteration; and, 2. That the plaintiffs were not entitled to recover under the common • counts. The referees made a report in favor of [240] the plaintiffs for the full amount of the note and the interest thereof. The defendant moved to set aside the report.</p>

The plaintiff in this case declared on an agreement under seal, bearing date 20th November, 1829, whereby he covenanted to procure from Roswell Reed, of Coxsackie, a good and sufficient warranty deed of conveyance in the law in fee-simple to the defendants, their heirs and assigns forever, for 83 acres of land (particularly described in the agreement), including and comprising all the buildings, mills and erections on the said 83 acres of land, together with all the water…

Error from the Schenectady common pleas. Lincoln sued Shepherd as a superintendent of repairs of the first section of the Erie canal, in an action on the case.

Demurrer to declaration. This was an action on a recognisance entered into by Blankman and the others as his sureties, on the 10th December, 1831, before a justice of the peace of the county of Onondaga, which, after reciting that Blankman had on that day been brought before the justice upon the charge and accusation of the criminal offence of having received goods into his possession which had been embezzled by one William Gay, he, Blank-man, knowing the same to have been…

Error from the Madison common pleas. Elizbaeth Warren sued Rufus Willard in the Madison common pleas and declared against him in trespass under the statute, giving treble damages for the forcible disseizin or ejectment of any person from lands or tenements (2 R. S. 338, title 6, § 4).

Error from the Monroe common pleas. Pettinger was sued in a justice’s court for a violation of an ordinance of the corporation forbidding the sale of fresh meat without license from the trustees. The ordinance, however, containing a proviso in favor of farmers and other persons, who were authorized to sell meat, the produce of their own farms or premises, within certain prescribed limits. The justice rendered judgment against him, and he appealed to the common pleas.

<p>A general sale of merchandise for a sound price, does not raise an implied warranty that the article is fit for all the purposes to which it is ordinarily applied; thus, hhere a starch manufacturer bought a quantity of flour at the highest market price, without disclosing the use for which it was intended, and after delivery found that it was made of groivn wheat, which rendered it unprofitable to he made into starch, and unfit for bread for ordinary use, hut was still valuable for other purposes, it was held, that an action did not lie against the vendor on an implied warranty that the flour was fit for all the ordinary purposes for which flour is used.</p> <p>It was also held, that a warranty could not he implied from the difficulty of ascertaining the quality of the flour, although it was as fair to appearance as the best flour, and could not he known by more inspection to be made of groivn wheat.</p> <p>The doctrine which raises on a fair sale of an article of goods or merchandise the implied warranty that it is merchantable or fit for the purpose intended, especially in the sale of a manufactured article, discussed and repudiated.</p> <p>Whether a warranty may not he implied from a description of the article in the sale note, or hill of parcels, quere.</p>

This was an action of debt to recover the penalty of $250 given by statute, against a sheriff for making deliverance of property under a writ of replevin, after claim of property, and before inquiry into the validity of such claim, tried at the Chenango circuit before the Hon. .Robert Monell, one of the circuit judges.

Error from the Washington common pleas. Hall let Haggart and Reynolds have fifty merino sheep; in consideration whereof, Haggart and Reynolds agreed to pay Hall, annually, fifty cents per head for each sheep, and on receiving a year’s notice, return to him the same number of sheep, and of the same quality and age, as nearly so as possible; the contract to continue for such length of time as Hall should choose.

In the great fire which took place in the city of New York, on the 17th December, 1835, a building owned by Rufus L. Lord, and occupied by David N. Lord, as his tenant, for a year from 1st May, 1835,… Held: all consequential damages sustained by him. To which decision the counsel for the corporation excepted.

<p>This was an action on the case against the defendants as common carriers, tried at the Rensselaer circuit in March, 1835. They were the owners of a stage, in which they carried the mail, and also passengers and goods, from Sandlake, in Rensselaer county, to Albany via Troy, being part of a line from Boston to Albany. The plaintiff put a box of combs in the stage at Leominster, in Massachusetts, directed to “ Messrs. Vail & Co., Troy, N. Y.” which arrived safely at Sandlake, and was there taken into the stage of the defendants and carried to Troy, and left at the stage house there, being the only place in Troy where the stage stopped, except at the postoffice for the delivery of the mail. Notice of the arrival of the goods was not given to, nor were the goods ever received by the consignees. The stage, in its most direct route to the postoffice from the stage house, passed the store of the consignees, which was in sight of the stage house, and the consignees were an old established and well known firm. The defendants offered to prove that it was the uniform usage and course of business of this line of stages, to leave goods or freight transported by it, directed to Troy, at the stage house there, and not to deliver the same at the residence or place of business of the consignee; that the usage prevailed in the whole course of the line, to leave goods or freight at the usual stopping places of the stage in the towns, to which the goods were directed, to be delivered to the consignees when called for, and not to make a delivery of the goods at the places of business of the consignees, and that such was the general custom of the lines of stages throughout the state and country. This evidence was objected to and rejected by the presiding judge. The jury found a verdict for the plaintiff for the value of the combs. The defendants moved for a new trial The cause was submitted on written arguments, by</p>

m This was an action of ejectment tried at the Erie circuit in October, 1834. This suit was brought for the recovery of lot No. 3, on Grand-Island, in the Niagara river. The defendant was in possession of the lot, or part thereof, at the commencement of the suit. In 1824, the island was surveyed into lots under the direction of the surveyor-general of the state.

w Error from the Monroe common pleas. Earl sued Bishop & Medbury on a recognizance of bail, entered into by them in a suit of Earl against one Hotchkiss. The defendants interposed several pleas, upon some of which issues of fad were joined, and upon others, issues of law.

<p>"Error from the Albany common pleas. Becker sued Bronk, to recover the expense of repairing Bronk's proportion of a division fence. It appearing on the trial of the cause that Becker, at the time of the repair of the fence, was a mere tenant at will or sufferance under his father, who was the owner of the fee. the defendant objected that he was not entitled to sustain his [321] action; which objection was overruled by the court, and the defendant excepted. The plaintiff produced the appraisement of the fence viewers of the expense incurred by the neglect of the defendant to make his proportion of the repairs, and also proved the value of the work done. The jury found for the plaintiff. The defendant sued out a writ of error.</p>

Error from the Tioga common pleas. Bull sued Smith for an assault and battery committed in the state of Pennsylvania, and in the declaration, charged the place of the injury to be Owego, in the county of Tioga, in this state. When the plaintiff rested, the defendant moved for a nonsuit, insisting that the action could not be sustained here for an injury happening abroad. The motion was denied.

Error from the Albany mayor’s court. Lansing, an inspector of lumber in the city of Albany, commenced a suit in the justice’s court of the city, against Shoemaker, not an inspector, to recover a penalty of $10, for measuring and inspecting a quantity of lumber.

Error form the Jefferson common pleas. Fairbanks, on the first day of January, 1836, commenced a suit in a justice’s court against Wood, and declared on a judgment obtained by him in another justice’s court against Wood, on the sixth day of October 1826, for $39'83. The defendant pleaded the general issue and the statute of limitations. The justice rendered judgment for the plaintiff.

Error from the New York common pleas. Hunt sued Mills, Brothers & Co., auctioneers in the city of New York, for the non-delivery of goods sold by them at auction.

Error from the superior court of the city of New York. William E. Van Cortlandt and others, the heirs at law of William Ricketts Van Cortlandt, commenced an action of ejectment against Charles Tozer, for the recovery of part of a house lot in the city of New York.

Clough was indicted for obtaining money by false pretences. The indictment charged that by means of certain false feigning, deceitful motions, signs and gestures, the defendant gave out, represented and pretended to one A. B, that .he was deaf and dumb, and also that he exhibited to the said A. B. a false and counterfeit certificate, stating that he was deaf and dumb, destitute of property, and desirous of collecting money for the purpose of procuring an education at an…

<p>Where the goods of a tenant of. demised premises are sold by virtue of an execution, a reason able time to remove them is given to the purchaser; but there must be no unnecessary delay in the removal, or they will be subject to a distress for rent."</p> <p>Where there "is no dispute as to the facts, it is for the court, and not'tlie jury, to say what shall he deemed a reasonable time ¡ in this case it was held, that a delay in removing goods, purchased in the afternoon of Saturday, until the morning of the following Tuesday, without any cause assigned, was unnecessary and unreasonable, and that a landlord was justified in takihg them on a distress warrant in payment of refit; and it was further held, that the non-delivery by the sheriff of the bill of parcels was not a sufficient excuse "for the omission to remove the goods, especially as no objection to the removal was made by the sheriff.</p> <p>It seems that goods of a stranger on demised premises without his fault, though prima fade distrainable, may be reclaimed and relieved from a distress for rent; but there must not be any voluntary delay or intermission in their removal from the demised premises. Even a sheriff, it seems, would not be allowed to claim that goods, levied upon and left on the demised premises, were so far in custodia legis as to prevent a distress.</p>

Error from the New York common pleas. This was an action against the Bowery Insurance Company, on a policy of re-insurance.

Error from the superior court of the city of New York. This was an action on the case by Suydam & Boyd against S. & M. Allen, for negligence in omitting, within a reasonable time, to present a draft for acceptance.

Suit on a criminal recognizance. The declaration was on a recognizance entered into by the defendants on the 9th April, 1834, as the sureties of one Martin C. Hill, conditioned for the appearance of Hill at the then next Albany general sessions, to answer to certain indictments pending against him for obtaining goods by false pretences, to abide the order of the court and not depart, &c. The declaration was, that at the next general sessions, to wit, on the 19th June, the…

<p>Demurrer to pleas. The plaintiff declared upon articles of agreement, dated 21st March, 1835, whereby he, on performance by the defendants of the covenants on their part, agreed to assign to them a lease of a store in Buffalo; and the defendants, on their part, covenanted to pay to him §300 on the first May, 1835, and to pay the further sum of $300 on [377] the 1st November, 1835, or to give security after the payment of the first §300 for the other §300; in which latter case, the plaintiff to assign the lease on the first day of May, 1835. In July, 1835, the plaintiff brought his suit, alleging the non-payment of the sum of §300 agreed to be paid on the first day of May, as the breach of the covenant. The defendants put in several pleas: in their third plea, after protesting that they have always been ready and willing to pay the §300 agreed to be paid on the first day of May, and to give security for the other sum of §300, they say that the plaintiff, on the first day of May, had not title to the store, and could not legally assign the same. The/oiM-f/i-plea was similar to the third, except that it did not, contain a protestando. The fifth plea alleged that the plaintiff did not, on the first day of May, 1835, tender an assignment of the store. The sixth plea was like ih& fifth, except that it contained a protestando of readiness to pay, and to give security. To these four pleas, the plaintiff put in a general demurrer, which was submitted on written arguments.</p>

Error from the Albany oyer and terminer. The defendant was indicted at the Albany general sessions, in June, 1837, for grand, larceny, in stealing one watch of the value of $110, one watch of the value of §65, one watch of the value of §45, one gold watch of the value of §110, one gold watch of th« value of §65, and one silver watch of the value of $45, the property of one Alexander M'Harg.

This was an action on the case tried at the New York circuit in February, 1835, before the Hon. Ogden Edwards, one of the circuit judges. The declaration charged the defendant with a false representation as to the credit of Messrs. Lotting, Adams & Stewart, a mercantile house at Matanzas, to which the plaintiff was about to make a shipment of goods [390] to be sold on commission, and which shipment was subsequently made and lost by the insolvency of the consignees.

Error from the superior court of the city of New York. This was an action of ejectment, brought by Fox against Phelps for the recovery of an undivided fourth part of a house and lot in the city of New York. On the trial of the cause the following facts appeared: Catharine Thorne, the grandmother of the plaintiff, died seized of the lot in question, leaving five children, of whom Abigail, the mother of the plaintiff, was one.

This was an action of assumpsit, tried at the New York circuit in October, 1835, before the Hon. Ogden Edwards, one of the circuit judges.

Arbitration and award. On the 25th November, 1836, arbitration bonds were entered into by.

Error from the New York common pleas. Replevin in the court below by Jenkins against Pell. The defendant avowed the taking for rent in arrear. Two questions were made on the trial. The warrant to the marshal was dated April 26, 1834, and directed him to distrain the plaintiff’s goods for one quarter’s rent of certain premises, amounting to $100, due February 1st, 1834.

This was an action of assumpsit, tried at the New York circuit, in February, 1836, before the Hon. Ogden Edwards, one of the circuit judges. The suit was brought for the recovery of two promissory notes, bearing date 12th January, 1832; one for $100, payable in 30 days, and the other for $146T6, payable in 60 days.

Error from the superior court of the city of New York. This was an action on a guaranty in these words: “ Washington City, 20tli June, 1827.

This was an action for a libel tried at the Oswego circuit in June, 1845, before the Hon. Addison Gardiner, one of the circuit judges. The libel was in these words: “ To the public.

This was an action of assumpsit, tried at the Albany circuit in March, 1834, before the Hon. James Vandebpoel, one of the circuit judges. The declaration contained a count by the plaintiffs, as endorsees, against the defendant, as endorser of a promissory note, bearing date 13th December, 1828, made by Heman Norton as drawer, for $750, payable to the order of the defendant, at the Mechanics’ & Farmers’ Bank, ninety days after date.

<p>Error from the Onondaga common pleas. Jaqueth So Paddock sued Jackson So House, before a justice of the peace by summons, which was served on Jackson only. The plaintiffs declared against Jackson only, in an action of trover, and on issue joined recovered $8 and costs. Jackson So House united in bringing a certiorari to the common pleas, where the judgment was reversed, and costs were adjudged to Jackson So House. Jaqueth So Paddock now bring error, and seek to reverse the judgment of the common pleas, on the ground that House, who was not a party to the judgment before the justice united in the certiorari, and had judgment in his favor in the common pleas.</p>

Hull sued Benjamin, Griffin and Seamans, before a justice in an action of trespass for taking a horse. The defendants were trustees of a school district. Held: trustees elected, a site designated for building a school house, and a tax of $200 voted for building the house.

Demurrer to declaration. The demurrer book contains a memorandum, that in January term. 1835, the plaintiff prosecuted his certain writ of nuistnce against the defendant, in pursuance of the statute in such case made and provided, which said writ is in the words following, to wit; “The People.” &c,. settting forth a writ of nuisance, in the form prescribed by 2 R. S. 332, § 3.

The plaintiffs declared on the common money counts. The defendant pleaded nul tiel corporation.

After the second Friday in term, it was moved that the defendant be called on an attachment made returnable subsequent to the second Friday in term, issued against him as a sheriff for not returning process, It was objected that the days designated by the 56th rule of the court for the hearing of non-enumerated motions having passed, the court would not permit the defendant to be called.

This was an action of covenant, tried at the Oneida circuit, before the Hon. Hiram Denio, one of the circuit judges.

Error from the Oneida general sessions. The defendant was indicted for petit larceny for stealing a whip of the value of two dollars, the property of one Stephen Northrop. The defendant was a merchant in Utica, and Northrop came to his store to purchase cloth. After spending some time in looking at cloths, he went off without making a purchase, leaving his whip in the store. The defendant concealed it.

Landlord and tenant. In May, 1835, Phillips presented to the first judge of the county of Chenango an affidavit, stating that Birdsall, a tenant at will or by sufferance, of certain premises, held over after notice to quit, and prayed process against him under the landlord and tenant act (2 R S. 511).

<p>Error from the Oneida general sessions. Adams was indicted, for that on the first day of June, 1836, and on divers other days and times between that day and the day of the finding of the indictment (to wit, 12th September, 1836), at, &c., he sold by retail to divers citizens of this state, and to divers persons to the jurors aforesaid unknown, and did deliver, in pursuance-of such sale, to the said divers citizens, and the said divers persons to the jurors aforesaid unknown, strong and spirituous liquors and wines, to wit, three gills of brandy; three gills of rum, three gills of gin, three gills of whiskey, three gills of cordial, three gills of bitters, three gills of wine; to be drank in the house, store, shop and grocery of the said John Adams, at the city of Utica aforesaid, without having obtained a license therefor as a tavern keeper, and without being in any other way authorized, &c. The defendant was tried and convicted. The record states the finding of the jury as follows: “ that the said John Adams is guilty of the offence as set forth in the first count of the indictment, by having sold the strong and spirituous [476] liquors in that count mentioned, at the time, in the manner, and to be drank as therein set forth to citizens of this state, but not guilty as aforesaid to any person or persons unknown.” The court imposed a fine of $100. The defendant sued out a writ of error.</p>

Insolvent discharge. The plaintiffs declared on a judgment rendered in this court in favor of Guy Wheeler against the defendant, in July, 1831, for $174’28, in an action of tresspass, assault and battery ; and averred [480] that they were the assignees oi such judgment, that Wheeler was dead, and that no executor or administrator was appointed upon his estate. Sec Session Laws of 1835, p. 229.

This was an action of debt, on a judgment tried at the Genesee circuit, in April, 1836, before the Hon. Addison Gardiner, one of the circuit judges. The plaintiffs declared on a judgment in their favor against the defendant, rendered in the common pleas of the county of Genesee, in this state, in October, 1835. The defendant pleaded nul tiel record, on which issue was [484] joined.

This was an action of assumpsit, tried at the Chautauque circuit in September, 1835, before the Hon. Charles H. Tuggles, one of the circuit judges.

This was an action of replevin, tried at the Chautauque circuit in September, 1835, before the Hon. Charles H. Boggles, one of the circuit judges.

Error from the Oneida common pleas. Terry sued Loomis in a justice’s court, and declared against him in an action on the case, for keeping dogs accustomed to bite mankind, and that the dogs thus kept had bit the son and servant of the plaintiff. The defendant pleaded the general issue, and gave notice that he would prove on the trial that the plaintiff’s son was at the time trespassing on his grounds. The cause was tried before a jury.

This was an action of assumpsit, tried at the Oneida circuit, in October, 1835, before the Hon. James Vandeupoel, one of the circuit judges. The suit was against the defendant as the endorser of a promissory note, made by Charles Morris & Co., for $500, dated 24th November, 1828, payable in ninety days. The defence set up was, that the defendant was discharged by indulgence given to the makers of the note.

In this case a new trial was granted in January term, 1836 (see 15 Wend. 137), and a trial had accordingly. The only diffet ence in the facts on the new trial, from what they appeared on the former trial was, that the defendants offered to prove, 1.

Error from Montgomery common pleas. Schenck sued Lincoln in a justice’s court and obtained judgment for $50 besides costs. Lincoln appealed to the Montgomery common pleas.

This was an action of assumpsit against the defendant, as the acceptor of five bills of exchange, of $1000 each, dated on live several and distinct days in March 1832, payable severally live months after date. The bills were drawn by two individuals by the names of Beach and Hudson, who transacted business for the defendant as his agent in Ohio in the purchase of wheat, which was transmitted to Rochester, in this state, where the defendant carried on business.

This was an action of assumpsit, tried at the Oneida circuit, in October, 1836, before the Hon. Hiram Denio, one of the circuit judges. The declarations contained the common money counts. The defendants pleaded the general issue, and the statute of limitations.

Error from the Montgomery common pleas. Smith sued Stewart in a justice’s court and judgment was rendered in his favor.

<p>This was an action of trespass de bonis asportatis, tried at the Oneida circuit in October, 1835, before the Hon. James Vanderpoel, one of the circuit judges.</p> <p>The defendant pleaded that he, as sheriff of the county of Oneida, by virtue óf two plaints in replevin, took and carried away the goods, &e. The plaintiff replied that before and at the time when, &c., he claimed property in the goods; &c., of which the defendant had notice. The defendant rejoined that the plaintiff did not claim property in the goods or give notice of such claim until after he had seized, taken, and made deliverance of the goods by virtue of the plaints, &c. The plaintiff put in a sur-rejoinder reiterating the allegations contained in the replication and concluding to the country. Upon the issue thus joined, the cause, was brought to trial. The following facts appeared in evidence:-the goods in question consisted of merchandise [519] in the possession of the plaintiff as a merchant; on the sheriff coming to the store of the plaintiff, he forthwith summoned him to appear at the return of the plaints, and was about to remove the goods to an adjoining store, when the plaintiff requested that they should not be thus removed, but that they should be taken from the wareroom inwhich they were, into the plaintiff’s counting room, and declared that the removal of the goods into the counting room should be of the like effect in law,' as if they were removed into the adjoining store where the sheriff had intended to take them. The goods were accordingly removed into the counting room, where they were inventoried and boxed up, and from whence they were subsequently taken by the sheriff. The plaintiffs in the plaints in replevin were present in'the counting room when the goods were inventoried and boxed up. The plaintiff Lisher made a claim of property in the goods and gave notice of such claim;.hut as to the time «ilten the claim was made, whether before or at the time or after the removal of the goods to the counting room, the evidence was conflicting; it was conceded, however, that a claim of property was made in the counting room before the goods were fully inventoried or boxed up. The evidence was also conflicting as to whether any part of the goods were removed into the counting room after the claim. The judge charged the jury that it was not necessary to the maintainance of the action that the claim of property should have been interposed previous to the removal of the goods to the ■counting room; that if the claim was made whilst the goods remained in the counting room, it was sufficient to sustain the action, notwithstanding that the plaintiff had been previously summoned, and notwithstanding the arrangement between the plaintiff and the sheriff, the removal of the goods to the counting room in consequence of such arrangement, and the presence there of the plaintiffs who sued out the plaints in replevin: and that the removal of the goods from the counting room after the claim of property and before the trial of the right of property, rendered the sheriff a trespasser. The defendant excepted to the charge of the judge, and the jury found [520] a verdict for. the plaintiff for §868 damages. The defendant asks for a new trial.</p>

<p>Error from the Lewis common pleas. Brainard sued Parsons & Hall in an action of assault, battery and false imprisonment. Parsons was a justice of the peace of the town of Leyden, and, together with two other justices, presided at a town meeting. Parsons acted as moderator. A proposition was-made to elect hog-howards, (whose duty it seems was understood to be, to catch hogs.running at large and put rings in their noses.) Brainard was nominated to the office of hog-howard; a vote of the meeting was called by Parsons, and Brainard was elected. Brainard thereupon nominated Parsons as hog-howurd’s waiter. This nomination produced noise, laughter and confusion. Parsons directed Hall, a constable in attendance, to remove Brainard from the room in which the meeting was holden, who accordingly took him away. One cf the other justices acquiesced in this order. It was for this removal from the room that the action was brought. The common pleas charged the jury that the officers presiding at a town meeting had no right to direct a constable to remove from a place where a town meeting was held, a person who was disorderly and disturbed the business of the [523] meeting, unless by an order in writing. To which charge the defendants excepted. The jury found a verdict for the plaintiff for fifty cents damages, for which sum, together with $81,92 costs, the common pleas rendered judgment. The defendant sued out a writ of error.</p>

w Error from the superior court of the city of New-York. This was an action on a promissory note for $1700, dated 15th April, 1833, given by William Vernon & Co.,- payable to John A. Moore or order, sixty days after date. The firm of William Vernon & Co., consisted of William Vernon, Samuel Vernon and Philip H. Vernon. The active members of the firm were Samuel and Philip, and the business of the firm was transacted in the city of New-York.

This was an action of ejectment tried at the Seneca circuit in Mayr, 1834, before the Hon. Daniel Moseley, one of the circuit judges. In 1791, letters patent issued to John Sagorahasee, an Oneida Indian, who served as a lieutenant in the revolutionary war, granting to him lots No. 33 and 93, in Junius.

<p>Error from the Wayne general sessions. Archer Galloway was indicted for having obtained the signature of his wife Rosanna Galloway, to a deed of certain lands in the county of Wayne, in this state, wherof she was seized in her own right in fee, by the false pretence that the deed to which he desired her to affix her signature was a deed of lands belonging to him in the state of Illinois. The deed was executed by the wife, but was not acknowledged by her before any officer authorized to take the acknowledgment of deeds. The deed bore date 25th November, 1834; the wife died 7th Aug., 1835, and on the 12tli September, 1836 the husband was indicted. He was tried, convicted and sentenced to three years imprisonment in one of the state prisons. A bill of exception was tendered and signed, and a writ of error was sued out, which brought up the record of conviction and the bill of exceptions. The case was argued by</p>

This was an action on the case against the defendant as late sheriff of the city and county of New York, for the escape of one John Kelly from his custody; Kelly having been arrested on a capias ad respondendum at [544] the suit of the plaintiffs, and the sheriff having returned him in custodia. The cause was tried at the New York circuit in October, 1835, before the Hon. Ogden Edwards, one of the circuit judges. .

Error from the New-York common pleas. This was an action brought by Donaldson under the lien law, enacted for the security of mechanics and others erecting buildings in the city and county of New-York, Statutes, session 1830, p. 412, and the act remaining the same, Statutes, session 1832, p. 181. One Russel contracted with the Messrs.

Demurrer to declaration. The plaintiffs declared against the defendant as late sheriff of the county of Oneida, incase, stating that they were [555] the holders, by assignment, of two judgments against one Robert McBride, rendered previous to the 25i/t Oct., 1833, amounting together to the sum of $1054, and that they were the holders of certain mortgages, executed by McBride upon his real estate, previous to the 2d November, 1834, amounting together to the sum of $15,600;…

This was - an action of assumpsit tried at the Madison circuit in March, 1835, before the Hon. Hiram Denio, one of the circuit judges. The suit was brought on two promissory-notes. The defendant offered in evidence in bar of the plaintiff's recovery, an insolvent discharge, granted to him under the two-third act of 1813.

<p>A plea by an administrator, of a judgment recovered against liim as administrator, and that he has fully administered except as to goods and chattels to a certain amount which are not sufficient to satisfy such judgment, is under the last revision of the statutes, uo longer a bar to a recovery, (a)</p> <p>The defence created by the 39th $ of the act relative to tlie duties of executors and adminis~ tratara, 2 R. S. 89, is not available under a plea like .the above.</p> <p>Whether the 31st j of the above act can in practice be rendered available, quere.</p>

<p>A joint action does not lie against separate owners of dogs, by whom the sheep of a third pefjon have been worried and killed, (a)</p>

<p>Where, in an action on the case for flowing lands, the defendant pleads specially the facts and circumstances upon which lie relies to show in himself a right to flow such lands by an uninterrupted use and enjoyment thereof for 20 years, he must allege in his plea not only that the use was uninterrupted, but that it was adverse to the rights of the owner of the land, or the plea will not be sustained on demurrer.(a)</p> <p>A plea setting forth the evidence upon which a party relies for his defence, instead of averring the conclusions of law from such evidence, is good, provided it be plenary in its details, and the opposite party do not object; but this mode of pleading is not approved.</p>

<p>If in the improvement of the navigation of a public river, the waters of a tributar)’-stream are so much raised as to destroy a valuable mill site situate thereon, and the stream he generally navigable, although not so at the particular locality of the mill site, the owner is not entitled to damages within the provisions of the canal laws directing compensation to he made for private property taken for public use. (a), †</p>

Error from the supreme court. A suit was brought in the name of Robert in the superior court of the city of New-York. against the Traders’Insurance company, on three fire policies bearing date 5th June, 1827, whereby certain buildings were insured for the term of five years.

Error from the supreme court. Phelps and three others brought an ac tion of ejectment against Sally Butler, the widow, and Lyman Butler, the son and heir at law of Ashbel Butler, to recover two thirds of certain ore beds.

A report of the commissioners of estimate and assessment for opening Furman street from Fulton street to Joralemon street in the city of Brooklyn, was presented for confirmation. The order of the common council for laying out and opening the street, was made on the 31st August, 1835. The commissioners filed their report on the 29th February, 1836; and on the 2d June, 1836, they filed their corrected report.

Redemption of land sold on execution. Westervelt, as sheriff of the city county of New-York, by virtue of writs of fieri facias, issued from the common pleas of New-York against the property of Abraham Cocks and Stephen Pine, sold at public vendue all the interest which they had on the 28th February, 1834, in.certain leasehold premises, demised on the 21st March, 1833, for the term of twenty-one years.