Volume 18 — Johnson's New York Reports

BY virtue of a fieri facias, issued on a judgment in favour of the plaintiff against the defendant, who was tenant of a house owned by T. Parcells, and which he had leased to one William Dean, under whom the defendant took possession, the sheriff of New-York, on the 12th of July, 1819, levied on the goods and chattels of the defendant on the premises.

moved to set aside the writ of capias ad respondendum in this cause, and all proceedings thereon, for irregularity.

THE plaintiff recovered a judgment against the defendant, in August, 1804, on which a test. ji. fa. was issued, and returned in part satisfied. A test. cap. ad sat. was thereupon issued, on which the defendant was imprisoned from 1805 to June, 1808, when, on application to the Court of Common Pleas, he was. discharged from imprisonment, pursuant to “ the act for the relief of debtors with respect to the imprisonment of their persons.” (1 JY.

THIS was an action of ejectment for part of lot No. 55, in the town of Manlius, tried at the Onondaga circuit, in June, 1819, before Mr. Justice Platt.

THIS was an action of assumpsit. The declaration con-count for money paid, The three first counts, between them, tamed three special counts, and &c. money had and received, &c. though there was some slight variation stated, in substance, that the plaintiff was an endorser of a promissory note for one thousand dollars, made by E. Bris-f0¡ and Justin Higgins, for their own benefit and accommodation, payable at the office of the Utica Insurance Company, to the plaintiff and…

THIS was an action of assumpsit, tried at the last circuit . * in Clinton county, before the Chief.Justice. The declaration contained five counts; 1. Held: .that in order to save the statute, it is not enough to show merely that a. writ was sued out, but the plaintiff must show that it has been returned. At least, a delivery of the writ to the sheriff is requisite; (Bronson v. Earl, ,17, Johns. Rep. 65.) and there is no evidence whatever .of. that fact.

County.; Root brought an action of Replevin against Camp and Clar/r,. administrators, &c. in which the defendants. avowed a taking for rent, &c. The plaintiffs pleaded in . ‘ 1 r bar to the avo\fries 5 to which pleas there was a demurrer . . . . , . . , _ . joinder.

THIS was an action of assumpsit, brought to recover the value of goods consigned by the plaintiff to the defendants, to be sold by them, as his factors. The plaintiff’s counsel, at the trial, stated, that the plaintiff and RichardJ\l. Mead, of Cadiz, owned a quantity of tin. It was proved that early in the year 1813,Mead shipped the tin from Cadiz, consigned to the plaintiff residing in Philadelphia, to be sold for their joint account.

THIS was an action of assumpsit, on the report of referees# The declaration stated a special contract between # . r the parties, by which the plaintiff sold to the defendant 310 pine trees, &c. for which the defendant was to give one dollar each, &c*; on which contract, the plaintiff, in May, 1811, brought an action of assumpsit against the defendant, in the Court of Common Pleas of Washington county, in which defendant pleaded non assumpsit; that on the 9 th of December,…

THIS was an action of assumpsit on a promissory note made by Joseph E. Haff, the 26th September, 1818, payable the defendant, ninety days after date, and endorsed by him to the plaintiff. The declaration contained a counton the promissory notes, and counts for money paid, laid out, &c. money lent, and money had and received, &c. ' The defendant pleaded, 1. Non assumpsit. 2.

EJECTMENT for lands in New Windsor, in the county of Orange. The parties agreed upon the following case, with liberty to either party to turn the same into a special ver-diet.

EJECTMENT to recover part of great lot, No. 4. in J\PNeiPs patent, in the town of Danube, tried before Mr. Justice Yates, at the Herkimer Circuit, in June, 1819. The plaintiff gave in evidence letters patent, dated August 15, 1761, to John M‘Neil, Alexander Stewart and others, for a tract of 3,400 acres of land, in Danube, including the premises in question ; also, a- deed of partition, by which lot No. 4. became the separate property of M‘Neil.

THIS was an action of ejectment, to recover part of let No. 21, in the second division of the Minisink patent, in t{ie town. 0f Deerparlc, The cause was tried at the ¿ . Orame circuit, on the 30th November, 1818, before Mr. ° _ , .

THIS was an action of debt, for the penalty of a bond. The defendant craved oyer, and set out the bond and condition. The bond, dated the 18th of May, 1817, was for the penal sum of 700 dollars, conditioned for the payment * . vil r J of 350 dollars, as follows., to wit: 100 dollars on the 15th of Jlugust next; 200 dollars on the 1st of November next, and 50 dollars on the 1st of January next. The defendant then pleaded, I. JVora est factum ; 2.

THIS was an action of debt, for the escape of Benjamin Herrick, who was in the custody of the defendant, as sheriff °f Dutchess county, on a ca. sa. at the suit of the plaintiff. The cause was tried at the Dutchess circuit, on the 22d of -April, 1818, before Mr. Justice Van Ness. The defendant pleaded, 1. Nil'debet; 2. That the es-cape was negligent, and that the defendant made fresh pur-suit and recaption before suit brought; 3.

DEBT against the defendant, as Sheriff of the city and countr New- York, for the escape of A. B. an attorney of this Court, a prisoner in execution, at the suit of the plain-r * tiffs* On the 31 st of May, 1819, a ca. sa. was issued on ajudgment obtained in this Court, by the plaintiffs against A. B. an attorney, &c. for 302 dollars and 35 cents, on which he was arrested by the defendant, during the sittings held in Junei before Mr. Justice Van Ness, upon which the defend-'…

THE plaintiff brought an action of covenant against Riley, for the non-payment of rept, on a lease dated Fe-bruary 3, 1807, düe the 1st day oí May, 1812. The defend-ant on 1st May,'i 812, obtained his discharge, under the “ ac^ for ^ie °f insolvent debtors and their creditors passed April 3, 1811, (sess. 34. ch. 123.) The defend-x * v J ant was arrested on a capias ad resp• returnable in Mojf 1817, and put in special bail.

IN ERROR on certiorari to a Justice’s Court. The Turnpike Company, sued Carrier, before a justice, for five dollars °f debt, and declared, for that whereas the defendant travelled with a horse in the town of Sharon, in the County ^c/iofome, on the turnpike of the Company, and turned off the road, to pass one of the gates on the road, and again éntered on the said road, with intent to defraud the said Company of the toll due to them, &c.; and also that the defendant,…

IN ERROR, on certiorari to a Justice’s Court. B. de» dared against C. before the justice, on a contract between h‘m atld the defendant, whereby it was agreed that B. shodd make the wood work of a waggon, which the de-fendant was to pay for in lambs, at one dollar a head, The plaintiff claimed 25, dollars. The agreement was * 0 proved: and that the plaintiff had made ■ the waggon r . , . . ,. , T, , , , within the period limited.

-EJECTMENT for part of lot.No. 41, in Pompey, tried at the last Onondaga circuit, before Mr. Justice Platt. 5* I herp]aintin claimed under one Christian Brandt, a soldief in the first Nem-York… Held: ’that the word grant, though usually applied to the conveyance of incorporeal hereditaments, was sufficient to pass the title. (Shep. Touchst. 227.) In the case of Jackson, éx dem.

EJECTMENT to recover part of lot No. 50. in the second division of the Cambridge patent, tried at the Washington circuit, in 1819.

THIS was an action of trover, brought to recover the va-ke of a cargo of flour laden on board the ship Baltic Trader, of Alexandria; tried before Mr. Justice Yates, at the New-York sittings, in April, 1819. The plaintiff gave in evidence, 1.

EJECTMENT fortwo lots of land, in Vernon, county of • t /» * •»» ¶- • ir ^ Oneiaa> tried before Mr. Justice Y ates, at the Omida circuit, in… Held: that a judgment at law was not a lien on an equitable interest,; as where a purchaser of land under a contracten-tered into possession, and afterwards assigned- the contract to S. who entered iqto possession, S. has not an interest which could be sold on execution, so as to pass an interest which a court of law would protect or…

<p>EJECTMENT for parts of lots Nos. 19. 23. and 24. in the Oneida Reservation, in the town of Vernon, tried at the Oneida circuit, before Mr. Justice Yates, in June, 1819.</p> <p>The lessor ofthe plaintiff gave in evidence á mortgage from the defendant to him, dated the 12th of September, 1815, for securing the payment of 775 dollars and 35 cents, with interest, on the 15 th of April then next, with the usual, power of sale. The plaintiff also gave in evidence the proceedings under the power, and a regular sale of the premises pursuant to the statute, by which it appeared that the premises were sold on the 18th oí February, 1818, to the lessor, as the highest bidder, for 590 dollars.</p> <p>The defendant stated his defence to be usury in the mortgage security. To prove the usury, Amos Gridley was offered as a witness, who was objected to by the plaintiff, on the ground that he did not believe in a future state of rewards and punishments, or the resurrection of the dead ; and that he had declared, that he would as lief be sworn on a spelling book as the bible ; and that he did hot believe in the being of a God.</p> <p>A witness was then sworn, who testified, that he had heard A. Gridley deliberately declare, that he did not believe in, a future state of rewards and punishments ; that man was like the beasts ; when he died, there was an end of him ; .and that he knew of no being superior to man ; that these were his serious and public declarations, and that the witness had frequently heard him make them ; and that within three months of the time of trial. O. B, another witness, testified, that he had heard A. Gridley say, that he did not believe in the scriptures, and had as lief be sworn on a spelling book as the bible; that he did not believe in the resurrection of the dead; that man was like the beasts; when he died, there was an end of him.</p> <p>testified, that, within a week before the trial, he told A. Gridley, that his' evidence would be spoiled on account of his declarations of infidelity; and Gridley replied, that he had formerly embraced the principles of the Universalists, and rather believed it was right.</p> <p>The counsel for the defendant then stated, that the witness, G. was now ready to declare his belief in a future state of rewards and punishments; and on being questioned, Gridley said, “ that he did not know that he had any reason to doubt that there was an after state of rewards and punishments.” The plaintiff still objected to his being sworn as a witness ; but the judge overruled the objection,. and directed the witness to be sworn, at the same time stating, that the witness having avowed his belief in a future state of rewards and punishments, and denying his alleged infidelity, it was a question of credit to be left to the jury. The witness lifted up his hand, instead of laying it on the book, and on being questioned, said that he had no scruples of conscience, and was about to be sworn on the book, when the plaintiff proposed to ask him whether he believed in the scriptures ; but the judge ruled, that the question should not be asked, and the witness was sworn on the bible ; and testified, that three years ago, the lessor of the plaintiff confessed to him, that the first mortgage given to him by the defendant, was upon interest, at ten and a half per cent. ; and that upon giving up that mortgage, the interest upon it was reckoned at that rate, and included in the mortgage given in evidence by the plaintiff. Another witness, a daughter of the defendant, also proved the admission of the lessor to. the same effect. Several witnesses were sworn on the part of the plaintiff, to disprove the allegation of usury, and to impeach the credibility of Amos Gridley.</p> <p>The judge submitted the evidence as to the usury to the jury, adding, that in consequence of the evidence of the character and standing of A. Gridley, he ought not to be believed ; and that his statement vvas not deserving of any Credit. The jury found a verdict for the defendant.</p> <p>A motion was made to set aside the verdict, and for a new trial.</p> <p>contended, that A. Gridley was not a competent witness, and that his competency could not be restored by his declarations in- court. The facts proved, in the first instance, clearly showed the incompetency of the witness, arising from his utter disbelief in the existence ©fa God and a future state. If allowed to be examined, af-terwards, in court, for the purpose of restoring his competency, the plaintiff ought to have been allowed to ask him whether he believed in the scriptures, that he might object to his being sworn on.them, if he declared his disbelief. The question proposed to be put to him, and overruled by the judge, was merely to ascertain his religion, in order to determine in what mode he should be sworn, so as to bind his conscience. (Omichund v. Barker, 1 Jltk. 21. S. C. Welles'1 Rep. &38. 1 Wils. 84. Phillips'1 Law o/Ev. 16. 19.)</p> <p>In Curtiss v. Strong, in the Supreme Court of Errors in Connecticut, (4 Day’s Rep. 51. 57.) it was decided, that a person “ who does not believe in the obligation of an oath, and a future state of rewards and punishments, or an accountability after death for his conduct, is by law excluded from being a witness, for to such a person the law presumes no credit is to be given. Testimony is, not to be received from any person, in a Court of Justice, but under the sanction of an oath. It would, therefore, be idle to administer an oath to a man who disregards its obligation. And every person who believes in the obligation of an oath, &c. whatever may be his religious creed, whether Christian, Maho-medan or Pagan, or whether he disbelieves them all, is an admissible witness; and may testify in a Court of Justice, being sworn according to the form of the oath, which, ac-cordingJo his creed, he holds to be obligatory.” (2 Haywood’s Rep. 290.)</p> <p>The question proper to be put to a witness, is not as to his belief in the scriptures, but as to his belief in a future state of rewards and punishments. The cases cited, therefore, do not apply to the question here. If a subsequent recantation, made in open Court, will not restore the competency of the witness, he never can be ex-4 amined; for there is no time fixed, within which he is allowed to change his creed, or discard his infidelity. It is enough, if he satisfies the Court that he has wholly changed his belief, and his declarations are the only evidence of that change. The case of Curtiss v. Strong, arose on the proof of a will, where the subscribing witness must have been competent, and the witness himself was offered to be sworn; and Judge Swift, in his treatise on evidence, disapproves of that case.</p> <p>Again ; the whole of the evidence is not set out in the case. If it had been stated, the Court, if satisfied, that after rejecting Gridley’s evidence, there was still sufficient evidence to support the verdict, would not send the cause to another jury.</p> <p>Where there is a misdirection of the Judge, and a motion for a new trial, on that ground, the Court, if satisfied that the direction was immaterial, and that the verdict would have been the same without it, will not grant a new trial; but where illegal or improper evidence has been admitted, the Court.cannot determine what weight-it may have had, with the jury. In Marquand v. Webb, (16 Johns. Rep. 89.) the Court said, that improper evidence ought not to be allowed to go to a jury, for the Court cannot reject the evidence as immaterial.</p> <p>It is said, that the doctrine for which the plaintiff contends, would amount to a perpetual exclusion of the witness. It is not meant to push it to that extent. All that is required is, that there should be reasonable and satisfactory evidence, that a person who has once disqualified himself, by such deliberate and public declarations of disbelief in all religion, and all the sanctions of an oath, should give reasonable and satisfactory evidence of his repentance and recantation. Another such an instance of utter depravity, it is believed, could not be found in this country; and the Court should require the strongest and best evidence of the witness’s sincere*recantation of his abominable creed. Can a person be permitted to state facts not under oath, when he would not be believed if he was under oath ? It would be absurd to credit a declaration of his recantation made under such circumstances; when he, if he had been sworn, would be wholly unworthy of credit. After he was admitted as competent, the Judge fold the jury that they ought not to believe him. A witness is to be sworn according to the religion he professes, without regard to his nation, or the place where the testimony is to be given. He must be sworn in such a manner as to affect his conscience by the sanction of an oath.</p>

EJECTMENT for part of small lot No. 174, in a tract of land in Clinton county, tried before the Chief Justice, on J 7 7 the 15tn of June, 1819.

THIS was an action of ejectment, tried at the Otsego circuit, in May, 1819, before Mr, Justice Yates. ’ *7’ The declaration contained four counts : the first count was ... ' on the demise of the ihreeiessors of the plaintiff, jointly : and ,, - . ,. - . „ . *; 7 the other counts were on the separate demise of each lessor, The defendant was in possession under title derived from Elnathan Osborn, who had executed a bond to Bowers, one of the lessors, dated the 28th of April,…

THE prisoners were convicted of arson, at the last Court of Oyer and Terminer, held in Rensselaer county, before Mr. Chief Justice Spencer., The prisoners were brought up on habeas corpus, &c. and from the returns to the writs of certiorari, it appeared that the indictment contained * L 1 three counts : 1. for setting fire to a certain inhabited dwell- • i r t 7 t“\ /• . _ , ing house of Jacob Deforest, m Troy, on the 3d of March, 1820, and thereby feloniously, wilfully, and…

A JUDGMENT was docketted in this cause, in the Mayor5s Court, on the 23d of December, 1816, anda fieri facias thereon, delivered to Ruggles Hubbard, late sheriff of the city and couuty, on the 27th of December, 1816. Judgments were subsequently docketed on different days, in nine other causes,-against the same defendant, in this Court and in the Mayor’s Court.

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

IN ERROR, on certiorari, to a Justice’s Court. Moore brought an action against Moss, for the penalty for exacting excessive toll, imposéd by the act to establish a turnpike road company, &c. called the Senecp Turnpike Road C’ompany, passed April 1st, 1800, (2 K. & R ed. L. 412. 423. sess. 23. ch. 78. s. II.) The eleventh section of the ac*> 'n fixing the rates of toll, says, that “ every waggon wi{h ¿w0 /¿orses,” shall pay twelve and an half cents: every 1 * * * J “ one…

<p>In an action of trespass in a Justice's Court, where there is a verdict and judgement for the defendant tje court, will not reverse judgment, because Against evidence, if it the injury was trivial, and the plaintiff e,¡t¡damages only, merely SUibr 13 “3ntsandvexa"</p>

<p>IN ERROR, on certiorari, to a Justice’s Court,</p> <p>Beardslee sued Strong, for beating and wounding his dog, an(I c^a’me(I fifty dollars damages. S. pleaded not guilty, 311^ th0. plaintiff demanded a trial by jury. The cause was then adjourned, and at the adjourned day, the parties appeared, when the venire was returned with a panel of twelve jurors, from which the justice drew six, who were sworn ; the defendant insisted, that the cause ought to be tried before twelve jurors, as the damages claimed were above 25 dollars •, the justice overruled the objection, and there was a verdict and judgment for the. plaintiff, for 17 dollars., and Costs*</p>

IN ERROR, on certiorari, to a Justice’s Court. B. brought an action of trespass on the case, against R,, who pleaded the general issue, with notice of a set-off. The plaintiff and defendant, with one George Weeks, made a . ' 07 joint contract, as carpenters, to build a barn for A., for which ^ ' they were to receive 150 dollars.

<p>A sheriff is bound to pay over - to the plaintiff, without any demand or request for that purpose, money levied or* execution, or he will be lia'» ble to an attachment. It; is not sufficient to return that he has the money in his hands, subject to the plain* tiff’s order.</p>

moved that Stephen Jackson and Wheeler Case, attorneys of this Court, be appointed ¶ , . . „ attorneys to plead and defend in this cause, in behaJf of William M'Clure, and Nancy M'Clure, two of the defendants, who were non compos mentis, but not idiots from nativity, and were of full age. He read an affidavit, stating {-hat jacjtson and Case had given notice of retainer for one of the defendants, and that they were willing to appear for the said William and Nancy.

moved, in this, and several other suits by the same plaintiff) against different defendants; that the defendants pay to the plaintiff the costs of noticing and preparing the causes for trial at the last Seneca circuit.

THIS was an action of assumpsit on a promissory note. 1 r J The defendants pleaded two pleas, 1. JNon assumpsit; 2i That the plaintiffs are not a body politic and corporate, &c. On the 12th of June, 1819, there was a replication to the second plea, that the plaintiffs are a body politic and corporate, and have a right to sue, &c. and this the plaintiffs pray may be inquired of by the country, &c. to which was added a similiter ; and the said defendants do the like, &c. * . ?

P. of Steuben county, On the 20th of June, 1815,- a rule for judgment was entered in the Court below ; and on the 28th oí June, the judgment record was signed, filed, and docketed. The writ of error, was *es£ed J^ay lst> 1820, directed to the Court below, and returnable to this Court on the first Monday of the present term.

IN ERROR, on certiorari to a Justice’s Court. It appeared that plaintiff below had declared on a promissory note, f°r and cents, and the defendant below pleaded t'Pec'a^y *n Ear of the action, his discharge under the insolvent act of April, 1813, from all his debts, and averring: . ‘ „ 0 that both plaintiff and defendant were citizens of this State.

ASSUMPSIT for goods sold and delivered, tried before Mr. Justice Fan Ness, at the New-York sittings, in June, ' 1Q loiy. The declaration contained the common counts for goods sold and delivered, and the defendant pleaded non assump-sit, with notice that she should give evidence of her cover-ÍUTB• At the trial, the plaintiff proved, that he sold and deli-1 4 verecWo the defendant, in April, 1817, fifty-eight Leghorn hats, at 27 dollars each, amounting to 1,566 dollars.

THIS was an action of assumpsit, brought to recover the amount of a promissory note, given by the testator, Alexander Fink, to his son, the plaintiff. The note, which was proved by the subscribing witness, was as follows: “New-York, 30th July, 1 ü 16. Sixty days after date, I promise to pay John L. Fin/c, or order, one thousand dollars, value re-his ceived.

THIS was an action of assumpsit on a promissory note, 1 1 J 7 against the defendant as endorser. The note was made by © y John Graham Codated the 11th of Februaryy 1813. for 8()(H dollars and 23 cents, payable to the defendant or order, nine months after date, and endorsed by him to the plaintiffs.

TROVER for 7,500 bushels of salt, tried before Mr. Justice Van Ness, at the New-York sittings, in December, 1816.

THE prisoners were indicted, tried, and convicted, at the ]as£ Court of Oyer and Terminer and Gaol Delivery, in ■> * ’ Rensselaer County, for the forgery of a deed of land, de- , , , , ^ scribed as situated in the territory of Missouri north, ihe presiding judge considering the cases proper for the consideration of the Court, no judgments were given, and the prisoners and the records of conviction were accordingly brought up to this Court.

the Dutchess circuit, in August, 1819, the defendants called THIS was an action of assumpsit, brought by the plaintiff, as endorsee, against the defendants, as first endorsers of a promissory note, made by Parley Rice, dated the 2d of March 1819, for 4,000 dollars, payable sixty days after date, to the defendants, or order. The note was also endorsed by Robert Dingee.

ASSUMPSIT on a quantum meruit, for the wages of the plaintiff, as master of the ship Lion, on a voyage from New-York to Canton and back to New-York ; and for the wages of his apprentice during the same voyage. The defendant pleaded non assumpsit, with notice of set off. The cause was tried at the New- York sittings, in April, 1819, before Mr. Justice Yales.

EJECTMENT for a farm in Rhinebeck, in the county of Dutchess, tried before Mr. Justice Yates, at the Dutchess circuit, in September, 1816. A verdict was taken for the plaintiff, by consent, subject to the opinion of the Court, on a case containing the following facts: The lessors proved their title, by a deed dated the 5th of January, 1790, from Margaret Livingston, widow of Robert R. Livingston, to Gertrude, the wife of the lessor, Morgan Lewis.

THE prisoner was indicted and tried at the Court of . Ceneral Sessions of the Peace, held in and for the City and J County of New-York, in March last, for manslaughter, in billing James Stoughton, Esq. on the 8ih of January last. The trial lasted five days.

THIS was an action on a policy of insurance upon the freight of the ship Samuel Whitney, W. E. Whitney, master, on a voya§e from Archangel lo Mew York, dated November 22, 1815. The policy was valued, and the sum insured 1 J 1 vvas 8,000 dollars, at a premium of three and a half per cent. 1 ‘ , T_ • .. The cause was tried before Mr. Justice Yates, at the J\ ex-Tr , „ .. York sittings, io April, 1819.

THE prisoner was brought up’from the county of Alie-ghany, on a Habeas Corpus, and the indictment and proceedings against him in the Court of Oyer and Terminer and Qao¡ Delivery, in that county, were returned in obedience to a writ of certiorari directed for that purpose.

<p>THIS was an action of covenant tried at the Putnam circuit, the 2d of November, 1819, before Mr. Justice Yates, The action was brought on an agreement between the parties, under their hands and seals, dated the 6 th of April. 1818, reciting that the plaintiff gave to William Wails a bone! and mortgage for 5,000 dollars, the payment of which was secured by the land and premises in Paterson on which the plaintiff lived, and by land of the plaintiff in Paulings, called the Burdock place, and the land of the plaintiff in Kent, called the Patty Wixon place, which bond and mortgage had been duly assigned to the defendant; and that.whereas the said land had been sold by virtue of the bond and mortgage, and divers suits and controversies had arisen between the parties, &c. the said parties, therefore, agreed í * 7 ’ ° that J. C., (J. A , and J. A., should, on or before the 20th of April, then instant, appraise the farm and premises on which the plaintiff lived in Paterson, at its real value, without reference to the price it sold for, under the mortgage ; and then the said appraisers were to ascertain what was due to the defendant on the bond and mortgage with all the costs ° ° and charges, and strike a balance, and the balance against . ° . whom it should be found should be immediately paid by , . , . • i i i , c i , . , the party against whom it should be found ; and in case the amount of the value of the appraisal was equal to, or exceeded the amount of the demands of the defendant, then the plaintiff was to have the Patty Wixon place, and the Burdock place ; but in case the defendant’s demands should exceed the amount of the appraisal, the plaintiff should have his option, to be determined immediately, whether he would r 7 .J pay the balance in money immediately, or have the appraisers immediately appraise the Patty Wixon place, and the amount be applied to the payment of the said balance ; and if it exceeded the residue of the claims of the defendant, after applying the first appraisal, then the defendant was to pay the balance; but in case there should still be a balance in favour of the defendant, it shall then be optional with the plaintiff to pay the balance immediately in money, or have the said appraisers appraise the Burdock place, and its value applied to the payment of the defendant; and if the amount of the said appraisals shall exceed the amount of the defendant’s claims, then he shall pay the balance ; and in case the whole amount of the said appraisals shall not satisfy the defendant’s claims, then the plaintiff should immediately pay the balance. And it was further agreed between the parlies, that the appraisers should take into consideration the case of the Burdock and Patty'Wixon farms, and the damage done to them, if any, by the defendant or his agents, since the sale under the mortgage, and allow it to the plaintiff; and that the plaintiff shall give immediate possession from the date of the agreement, of the farm and premises on which he lived, to the defendant ; and that the plaintiff should have the right to take off all his property from the same, and should not pay rent to the defendant, until the agreement was executed ; and that if the plaintiff should take the Burdock place and Wixon place, or either of them, according to the agreement,.then he was to have immediate possession of them, or either of them which he should so take r That if the agreement was not carried into effect, according to its true intent, it should not affect, or .in any manner interfere with the other business and proceedings of the parties ; and that if either of the parties should refuse to fulfil the agreement, according to its true intent and meaning, the party so refusing should pay to the other party the sum of five hundred dollars, which shall be considered as liquidated damages.’’ The plaintiff, after stating the agreement in his declaration, alleged, that the appraisers named, before the time limited, appraised the farm on which the plaintiff lived in P. at 5,000 dollars, and ascertained the amount due to the defendant on the bond and mortgage, and for charges, &c,to be 6,326 dollars and 91 cents, and struck a balance against the plaintiff of 1,326 dollars and 9Í cents, and that the plaintiff immediately elected to have the Wix-ore place appraised, and the appraisers accordingly appraised the place and the damages thereon at 480 dollars; and that after deducting that sum, there still remained a balance due to the defendant of 846 dollars and 91 cents; and the plaintiff thereupon elected to have the Burdock place appraised, &c. and the appraisers thereupon appraised the same, and the use thereof and damages done thereon, at 1,157 dollars and 58 cents, and the amount of which appraisement exceeded the balance of the claims,and demands of the defendant, as determined by the appraisers, 310 dollars and 67 cents, which the defendant had refused to pay, although requested, &c. nor had he paid the 500 dollars, liquidated damages, &c. The defendant craved oyer of the agreement, and pleaded non estfactum, with notice that he would give-in evidence at the trial, that the plaintiff was, af the commencement of the suit, indebted to him in the amount of the bond above mentioned, that he would set off so much thereof as would be sufficient to satisfy and discharge the plaintiff’s demand, and have the balance certified in his fa-vour pursuant to the act.</p> <p>After the plaintiff’s witnesses were examined, the defendant admitted that the plaintiff was entitled, under the agreement, to the stipulated damages of 500 dollars, on the allowance of which he insisted that he had a right to consider the agreement as rescinded, and that the whole bond assigned to him by Watts remained in force against the plaintiff; and offered to prove that he had so elec ted and offered the plaintiff, before the suit was brought, and insisted on setting off a sufficiency of the amount of the bond to satisfy the said 500 dollars, and have the balance certified in his favour : but the judge decided that the set-off could not be allowed ; that the bond was to be considered as cancelled and paid, and that the defendant had no right to have the agreement rescinded, by paying the stipulated damages ; and directed the jury to find for the plaintiff the sum of 310 dollars and 67 cents, being one of the sums demanded in the plaintiff’s declaration, with liberty to the defendant to move to set aside the verdict on a case made ; and the jury found a verdict for the plaintiff accordingly, subject to the opinion of the Court on the above case, which was submitted to the Court without argument.</p>

THIS was an action on the case, brought in May, 1819, against the defendant, as one of the managers of the Union College Lottery, for selling in 1816,'tickets in the lottery, contrary to the provisions of the act for that purpose, and contrary to his duty as such manager, by reason whereof the amount of the tickets so sold by him had been wholly lost, &c. The defendant pleaded, 1. Not guilty ; 2.

THIS was an action of assumpsit brought against the defendant as endorser of a promissory note, dated Utica, July, 1 J ’ > £) 20, 1818,… Held: that Cabot could not fill up the endorsement so erased, and make it payable to himself, so as to maintain an action in bis own name, though they, afterwards, allowed the original endorsers, whose names had been erased, and who had since become the owners of the bill, by paying C. the amount, to restore their names as endorsers, and…

<p>lira hfthe county to compel them to allow the account of the County> for ad-vínoos mado by him in purchasing Books hr recording'Deeds and Mortgages, t¡c. and for sending notices to judges and justices of thepeace, of the pedlars who are licensed, with interest on such advances. Such services being required by law of the clerks, and no specific compensation provided for them, are properly chargeable to the county, and ought, therefore, to be allowed by the supervisors and paid according to the act, (sess. 36. ch. 49. s. 1. 2 7V.fi. L. Vil.) for defraying the public and necessary charges m the respective counties, S¡c.</p>

THIS was an action of assumpsit, tried at the New-York . . ' Sittings, in April, 1819, before Mr. Justice Yates.

THE defendant was' arrested in May, 1819, at the suit of the plaintiff, for 2,000 dollars ; and in July following, was regularly discharged, under the act to abolish imprisonment for debt, in certain cases, passed April 7, 1819. (sess. 42. 101.) After the discharge, the attorney for the plaintiff entered the default of the defendant for not pleading, and af-terwards entered an interlocutory judgment, and had the damages assessed, on a.writ of inquiry.

THE defendants were natives of New Jersey, and came to the city of New-York about the year 1811, where they were engaged in the mercantile business, until the year 1815, when they removed to Granville, in the state oí Mississippi, where they permanently settled, and have -since resided and carried on business.

THIS was an action of/respass,forrunning down the vessel of the defendant at sea, tried before Mr. Justice Yales, . m, . at the New~York Sittings, in April, 1819. ihe testimony ... . , , , .1-1 mi of… Held: that for the wilful act of a servant, without the command of his master, trespass would not lie against the master, and so far the case of Savignac v. Roome was overruled. (Morely v. Gaisford. 2 Ren. Bl. 442.) In the case of Ogle v. Barnes, (Í!

<p>THIS was an action of ejectment, commehced in May, „ . , „ „ . , i . rn 1818, to recover part of lot No. 40, in the town or Ulysses, and was tried at the Tompkins circuit, in June, 1819, before Mr. Justice Woodworth. The plaintiff gave in evidence, (1.) a.patent to Alexander Kidd, a soldier, for lot No. 40, in the township pf Ulysses, dated July 8, 1790. (2.) A deed from Alexander Kidd to Isaac Bogart, dated the 12¡h oí January, 1788, as follows : “ Know all men by these presents, that i, Alexander Kidd, of the county of Albany, for the consideration of nine pounds, have granted, bargained, sold, assigned and set over unto Isaac Bogart of the city oí Albany, the bounty or gratuity of lands given and granted unto ine, the said Alexander Kidd, by any resolution of the congress of the United States, and by any resolutions or laws of this state, for my services as a private in the troops of this state, in the service of the United States, in the regiment commanded by Colonel Gose Van' Schr.ick; and do empower Henry I. Bogart and John Bogart, or either of them, my true and lawful attorneys and attorney, for me and in my name, to grant, bargain and convey the same to the said Isaac Bogart, his heirs and assigns, in case the same shall be 07 o? deemed necessary, upon the grants having passed the seal of this state, for the lands aforesaid. Witness my hand and seal,” &c. “ Witness, John BushJ’ This deed was proved on the 30th oí September, 1790, before Jeremiah Lansing, a master in chancery; and again, on the 27th oí April, 1818, heíoré Bowen Whiting, master in chancery, when the witness who was present to make the proof was identified by a witness known to the master: the deed was also by the same subscribing witness, before Elijah Miller, first jac]ge of the county of Cayuga, on the 5th of May, 1818, and recorded in the office of the clerk of that county on the 6th of May, 1818. • (3.) A deed from Isaac Bogart for the same lot to Theodosius Fowler, dated July 2, 1791, registered 30th of April, 1795, as noted on the copy produced, and recorded February 28th, 1818. (4.) A deed from Theodosius Fowler to William Henderson, the lessor of the plaintiff, for the same lot, dated October 4,1» 92; recorded August 14, 1818. (5.) A release in fee from Alexander Kidd, by his attorney Henry I. Bogart, to Isaac Bogart, for the lot in question, dated 9th of February, 1802 ; acknowledged 10th of August, 1808, but not recorded. Isaac Bogart died in September, 1818.</p> <p>The defendant gave in evidence, (1.) a deed from Alexander Kidd to Lemuel Cobb, dated February 25, 1792, for the lot in question, as follows : “ Know all men by these presents, that 1, Alexander Kidd, of the county of Morris, in the state of New-Jersey, for the consideration of the sum of fen pounds, current lawful money of New-Jersey aforesaid, do give, grant, bargain, sell, aliene, release, enfeoff, convey and confirm unto Samuel Cobb, of the same place, and to his heirs and assigns for ever, all my bounty lands, viz. five hundred acres due to me from the state of New-York, and one hundred acres due from the United States ; also, all my right and title, interest, claim and demand to the warrants- and rights to land for my services in the troops raised in the said state of New-York, in colonel Gose Fan Scoyke's regiment, together with all and singular the profits, privileges and appurtenances to the said lands, warrants and premises belonging : to have and to hold unto the said Samuel Cobb, his heirs and assigns, all the above granted and bargained land and premises, with the appurtenances to the same. In witness whereof,” &c. “ Sealed and delivered in presence of Thomas Van Winkle — Peter Van Winkle.^ This deed was proved on the 12th of March, 1795, before John Ray, a master in chancery, by Peter Van Winkle ; and before David Hyde, a master in chancery, on the 12th of June, 1813, by Thomas Van Winkle; and recorded in the office of the clerk of the county of Cayuga, June 12lh, 1813, with.the soldier’s discharge, dated 8th June, 1783, under the hand of the commander in chief of the army of the United States. (2.) A deed from Samuel Cobb to Moses Davenport, the defendant, for 200 acres of the same lot,being the premises in question, dated January 31, 1815, for the consideration of 1000 dollars; recorded 16th February, 1815. (3.) A release from the widow of A. Kidd to the defendant, of her right of dower, dated 14 th February, 1816.</p> <p>The defendant then called on the plaintiff to show that the deed from Kidd to Bogart was deposited, previous to May 1, 1795, with the Clerk of the County of Albany, in pursuance of the provisions of the “ act for registering deeds and conveyances, relating to the military bounty lands,” passed January 8, 1794, and the act to amend the same, passed March 27, 1794. The counsel for the plaintiff contended, that the exemplifications of the record and proofs thereof, produced and read in evidence, were sufficient proof of that fact; and the question was reserved by the judge.</p> <p>died ■about two years before the trial; and his widow, who was produced as a witness, testified, that more than 22 years before, her husband made a contract with Nathaniel Williams, in New-Jersey, for lots No. 33 and 40, at 2 dollars per acre, and paid him 500 dollars, and took a bond for a deed; that he entered on the lot 22 years ago, and continued in possession, holding under this contract, and paying taxes, until his death. The bond was not produced. The witness said that she had seen it and heard it read, and had made, search and inquiry after it, but could not find it. The plaintiff’s counsel objected to the parol evidence of the contents of the bond; but the judge admitted it, subject to all exceptions; and he ruled that it was not necessary for the defendant to show any written evidence of the colour, or claim of title, under which he took possession; but that showing an actual occupation, for twenty years, claiming title, was sufficient to constitute an adverse possession. Another witness testified, that C. Davenport was in possession of lot No. 40, above twenty-two years before the trial, and claimed it to be his property, saying that he had purchased it of a person in New-Jersey, and that C. D. built a house and. barn on the lot, and his son, the defendant, made improve* ments from year to year.</p> <p>A witness for the plaintiff testified that before the defendant purchased of Cobb, he had taken a lease, for a nunrw her of years, of Cobb, and that he held under that lease when he made the purchase, and that he paid the rent to Cobb. That he knew of BogarPs title or claim, and would not purchase, until he had ascertained who had the t tie, and that C. Davenport often told the witness the same. That the defendant married in 1801 or 1802. That about 10 or 12 years ago, the defendant, who was then in actual possession of the premises, employed the witness to inquire for Theodosius Fowler, who derived title from Bogart, and was the owner of the lot. The counsel for the defendant contended that it was solely for. the. jury to decide, whether on this evidence, the plaintiff’s right was not barred by an adverse possession. The judge directed the jury to find a verdict for the plaintiff, subject to the opinion of the Court, on all the points arising in the case: and the jury found a verdict for the plaintiff accordingly.</p> <p>For the plaintiff, the following points were stated: — 1. That there was not evidence of an adverse possession, sufficient to bar the plaintiff. (1 Johns. Rep. 156. 2 Johns. Rep. 230. 9 Johns. Rep 167.174. 10 Johns. Rep. 475.)</p> <p>2. That the proof as to the deposit of the deed from Kidd to Bogart, before the 1st of May, 1795, pursuant to the act. (1 N. R. L. 209. 211, 212.217.) was sufficient.</p> <p>3. That the deed from Kidd to Bogart passed the whole estate oí Kidd, and the patent which was subsequently issued to him enured to the benefit of the grantee, Bogart, (16 Johns. Rep. 495. 505.) as by the act to carry into execution fhe concurrent resolutions of the legislature, (Sess. 13 ch. 59, s. 5) the land became vested in the soldier, on the 27th of March, 1783.</p> <p>4. Admitting even that Bogart did not, by the deed from Kidd to him, acquire an estate in fee ; yet the subsequent deed, executed by the attorney of Kidd, pursuant to the power contained in the first deed, enured to the benefit Bogart, so as to vest in him the whole estate. (3 Johns. Ch. Rep 550. 4 Cruis. Dig. tit. 32. ch. 16, s. 62, 63, 64, 65. 1 Johns. Cases, Hi. 90. 2 Johns. Rep. 510. 13 Johns. Rep. 316. 2 Burr. 704. Doe v. Whitehead. 1 Saund. 261. note 3.)</p>

ONE of the defendants, Thomas Jenkins, was arrested on a capias ad respondendum, issued in this cause at the suit of the plaintiffs, in the city of New-York, and Elisha Jenkins, and the other defendant, were arrested in the county of Columbia, and the same person was bail for all the defendants. y r # A iudgtnent having been entered up against all the defend- ° . , • , . ants, a fíen facias was issued against them, m August term _ „ r . . - - _ last, directed to the sheriii…

THERE were.fourteen causes at the suit of the same les» sor of the plaintiff. A motion had been made, grounded on an affidavit and notice, in which the titles of all the causes were included together. A question Was now raised whether the plaintiff’s attorney, his motion having aould have costs taxed in each of the causes. been granted,

1 THE declaration in this cause contained a single count, t0 which the defendant pleaded the general issue, and a spceial plea, and gave notice of a rule that the plaintiff reply, &c. Within twenty days thereafter, the plaintiff delivered to the defendant a declaration which he had amended, , iir> _ by adding a second count, with notice to plead, &c. which amendment had been made without any application to the Court.

CAINES, for the plaintiffs in the first cause, moved that the sheriff ofthe county of W estchester do pay to the plaintiffs in the first suit above mentioned, or to their attorney, out of the monies… Held: “that neither before nor since the statute of frauds, is the property of the goods altered, but remains in the defendant until execution executed (2 Equ. Cas. Abr. 381. per Lord Hard-wicke. Hotchkiss v. M Vickar, per Spencer, J 12 Johns.

ASSUMPSIT on a promissory note, dated Albany, April 17th, 1817, for 2,500 dollars, made by James Kane, payable sixty days after date, to the defendant or his order, en» (jorse¿i by him, and by John Kane, to the plaintiffs. In the margin of the note was written the following words: “Payable at the Bank of America, James Kane.” The cause vvas tried in December, 1818, before the Chief Justice.

ASSUMPSIT on a promissory note, dated Albany, October 1st, 1818, made by Sebastian 'Visscher, for 300 dollars, payable to the defendant, or his order, sixty-two days after date, at the Mechanics’ and Farmers’ bank, endorsed by the defendant, to the plaintiff. The cause was tried at the Albany circuit, in October, 1819, before Mr. Justice Van Ness.

EJECTMENT for land in Wallkill, fried at the Orange circuit, in November, 1818, before Mr. Justice Van Ness. The plaintiff gave in evidence letters patent to P. V. B. Livingston and John Prevost,dated May 26, 1750, for 3,000 ’acres of land ; and a release in fee for the same land from the patentees to James Alexander, dated May 28, 1750.

CJUNES, moved, that an exoneretur be entered on the ’ bail piece filed in this cause. It appeared, that the defend-r 1 x . ant had been indicted and convicted for passing counterfeit money, before the Supreme Court of Vermont, in July last, and was sentenced to the state prison of that state for thirteen years.

THE declaration in this cause was filed the 4th of March last, and a default for want of a plea entered on the 29th of July, on which an interlocutory judgment was entered, and notice given for executing a writ oí inquiry on the 9th ot August. Final judgment was entered on the 19 th oí August, and docketted on the 24th of August, and an execution issued thereon the same day.

<p>Where the IdT^um of defendant who promised’ that lf th,e, PIaintiff would swear to dmcorrectness would pay’ ig dffmadeShda-íy* Hd%á\hít proiSsefVand t!on to recover the amount was not competent to the defendant to prove that the plaintiff had sworn falsely, or thathe was mis* taken in his affidavit.</p>

brought an action against the plaintiffs in error, in thé Court below, on a bank note, dated September 1st, 1815, at Utica, by which the President, Directors and Company pro--misedtopay to Thomas J efferson, or bearer, on demand, five dollars.

EJECTMENT for land in Cocksackie, tried at the Greens c¡rcu¡t jn December last, before Mr. Justice Van Mess. 9 1 The plaintiff proved, that John A. Van Buskirk owned the farm on which the defendant now lives, and sold it to the defendant, about 15 years before the trial.

IN ERROR, on certiorari to a Justice’s Court. Robinson brought an action of trespass against the defendants, before a Justice of the Peace, for taking and selling his cow and sheep.

THIS was an action of slander, tried before Mr. Chief Justice Spencer, at the Albany circuit, in October, 1818. The words laid in the declaration, as spoken by the defendant of the plaintiff,, were : “ You are a thief.” You st0le my hens.” “ He stole my hens.” “ I as much bé-Heve he stole my hens, as I am alive.” The defendant pleaded the general issue, with notice of special matter to be given in evidence, justifying the truth of the charge.

<p>EJECTMENT for part of Lot No. 47, in Bainbridge. The cause was commenced in May term, 1818, and tried before M r. Justice Woodworth, at the Chenango circuit; in June, 1819.</p> <p>The lot, of which the premises aré a part, was patented to Timothy Church, in July, 178G. The plaintiff gave in evidence a judgment and execution against T. Church,- in. favour 0f James an¿ William, Anderson, in 1800, and a sheriff’s deed dated June 4, 1801, recorded Sept. 8, 1803, for lot No. 4?, sold under the judgment,, to James and William Anderson: also, a judgment in favour of John Taylor a-; gainst William Anderson, dated 19th July, 1808,. and a record of the revival thereof, by scire facias, against the heirs and terre-tenants of W. Anderson, ducketted 8th Augusly 1817, anclajtieri facias issued on the judgment against them: also, a deed from, the sheriff of the County of Che-nango, to the lessors of the plaintiff, dated October 11, 1817.</p> <p>The defendant’s counsel objected to the plaintiff’s recovery, on the ground that W. Anderson, or his heirs, or any person claiming under him, had never been in possession of the premises in question. But the objection was overruled by the judge.</p> <p>The defendant proved, that the sheriff sold the whole of lot No. 47, and two farms of W. A. together, for-25 dollars. The defendant then offered to prove that lot No., 47, at the time of the advertisement by the sheriff, was occupied by-six or seven different persons, in distinct parcels, claiming under deeds, and some of whom were in possession before W- A• purchased the ]ot, and others in possession under him, and that the defendants claimed adversely to, and by a title older than that of W, A. and that the description of the lot,, merely by lot No, 47, in the said town, in the sheriff’s ad~ vertisement and deed, was uncertain and insufficient, but the judge overruled the evidence. The defendant then gave in evidence a deed, dated 19th February, 1798, from Timothy Church to Joshua Newton, for one hundred acres of land, beginning at the north-west] corner of lot No. 47,^ and described by metes and bounds, proved the 7th Juney 1801, and recorded June 5th, 1813,</p> <p>The plaintiff then called Joshua Newton, the grantor in the last mentioned deed, as a witness, in regard to the exe. cption of that deed, The defendants objected to the wit-. ness as incompetent | but the objection was overruled. The witness testified, that he moved on the premises the 26th of May, 17.99, being about 28 years of age; that he first contracted for the land with Eleazer C. son of Timothy C, which was about four years before he removed to the lot, and that he took a bond for the deed. He tools the deed from T., C. before he removed. When the sale was made under the judgment of J. & W. Anderson, he shewed his deed to Dr. Hyde, who thought it defective ; he, afterwards, showed it to Benjamin Hovey, judge of the C. P. of Chenango, who said he thought it defective, but advised the witness to keep possession of the land, and say nothing about the deed; end the judge took the proof of it. The witness said, the deed had no actual seal, but a flourish at the end of the grantor’s name, with the letters L. S. made with a pen. When the deed was executed, it was said there was no wax or wafers, and that a flourish with a pen was equally good. He sowed the first crop on the premises in 1797. That feeling squeamish about his title, he went to Schenectady, to purchase William Anderson’s right, or to sell his own, and was told that W. A. was dead, and that he must wait until the heirs were of age. That the witness gave two hundred dollars for the land he purchased, and paid E. C. fifty dollars, in part. That he felt no alarm until he heard of the judgment against T. C. and understood that his deed was defective On his cross-examination, he said that he had no reason to suppose that the deed to him was antedated, or that Timothy Church was not present when it was executed. The witness was present at its execution, and it was admitted by the parties to be sealed as well as signed. He gave a mortgage for the residue of the purchase, which he afterwards took up and destroyed. That the mortgage had no seal, but was signed with a flourish of the pen, as in the deed, E. C. was called as a witness, and testified that/. N. gave him a mortgage for the balance of the purchase money, and thought it was sealed with paste. Two other witnesses, who were sworn, testified that Joshua Newton first began to clear the premises in the year 1797. The points of law raised during the trial were, by consent, reserved, and the facts, as to the execution of the deed, summed up to the jury, who, under the charge of the judge, found a verdict for the plaintiff.</p> <p>A motion was made to set aside the verdict, and for a new trial</p> <p>1; The sheriff’s sale was void. It was made byvirtueof an execution against the heirs and terre-lenants of IF. Anderson, and no judgment was shown to warrant such an execution. Besides, W. Anderson had no legal estate in the premises, that could be sold by the sheriff. Newton was in possession of the land, claiming to hold under the deed from T. Church, adversely. This ad-* verse possession had commenced prior to Taylors judgment, and had continued all the time. No title, therefore, passed by the sheriff’s deed. As W, A. never took posses*sion of the premises, all that he acquired was a mere right of entry. (2 Caines'1 Rep. 67. 2 Salk, ó63.)</p> <p>2. Will the Court intend that the judgment was regularly revived against every person ? It Was revived on two ni-hils returned to the scire facias, without naming any of the heirs or terre-tenants, or giving notice to any one. This appears frotn the record which is referred to in the easel No person can be disturbed in his possession, without notice. ■</p> <p>3. The sale by the sheriff was irregular. He ought to have sold the land in separate and distinct parcels. There were seven distinct farms, occupied by-as many tenants. Many persons would bid for one farm, who would not be willing or able to purchase the w'hole. Selling the whole together, in mass, is ruinous to the debtor, and is a practice not to be tolerated. (13 Johns. Rep. 102. 14 Johns. Rep. 352. 1 Johns. Ch. Rep. 502. 2 Caines, 66. 11 Johns. Rep. 373.)</p> <p>4. Admitting, howaver, that the proceedings under the scire facias, and by the sheriff, were regular, yet the lessors of the plaintiff are bound by the statute of limitations. A purchaser under a judgment can be in no better situation tl^an the person under whom he claims, when the statute of limitations has once begun to run. More than 21 years have elapsed since the deed from Church to Newton,</p> <p>1. The defendant knew that the property was advertised for sale, and might have applied to this. Court to set aside the judgment, or to the Court of Chancery for an injunction to prevent the sale. He now comes too late, after a third person has become the purchaser.</p> <p>2. The Court, in the cases cited, decided that the deed was void, for the uncertainty of the description; not that the description, by the number of the lot in a particular patent, was not sufficient. On the contrary, it has been repeatedly decided ihatsuch a description was sufficient. (1 Caines, 493. 1 Johns. Rep., 444. 2 Johns. Rep. 40. 5 Johns. Rep. 500. 501. 7 Johns. Rep. 252. 8 Johns. Rep 220. 47S.) If the doctrine contended for by the defendant was to prevail, more than half of the sales by sheriffs would be overturned. The deed on the face of it is regular and valid, and is not to be avoided by parol evidence.</p> <p>3. Again ; this objection comes-too late. The defendant should have applied to the Court to set aside the sale. He cannot now make that objection, by way of defence, in an action brought by a bona fide purchaser.</p> <p>4. The statute of limitations did not commence to run until Newton went into possession on the 26th oí May, 1799, under a deed from Church. Before that time, he had no title, and his possession must be deemed to be that of Church, or the person having title. Though he may have had a good right to a deed, yet until he obtained a conveyance, his possession was that of the legal owner.</p> <p>in reply, said, that though the sheriff’s deed for the whole lot was, prima facie, good ; yet when it was shown that he had sold the whole, consisting(of seven distinct farms, it was not good. This was a fact which did not appear .on the face of the deed, and may be proved by parol.</p> <p>Again; when Newton entered on the land in 1797, claiming it as his own, he held a possession adverse to all the world, and it is from that time the statute commenced. In Jackson, ex dem. Roosevelt, v. Wheat, decided in May term, (Ante, 40.) the Court held, that if the party entered into possession under claim or colour of right, whether his title was good or not, the possession was adverse. If he has a.deed, he is not bound to produce it, and may rely on his adverse possession.</p>

TRESPASS for seising, biking, and carrying away certain goods of the plaintiff, tried at the Ontario circuit, in 1819, before Mr. Justice Platt. On the 3d of October, 1817, the plaintiff, who resided at Canandaigua, sent his clerk, James Byrnes, to Pultneyville, to obtain payment or security for a demand against Tho mas Lowthrop, for goods sold to him.

EJECTMENT for land, in German Flats, in the County of Herkimer. Hanjost Herkimer, the elder, being seized of J . ’ , the premises m question, made his will, on the 5tb April, 1771. Held: that she did not. “ It is certainly true,” says he, “ that there are several cases in law, where the words, if he die without issue, have been held to vest an estate tail by implication.

<p>^ ERROR to the Court of Common Pleas of Chenango. Taylor and Medbury, defendants in error, as overseers of D00r 0f (he town of New Berlin, brought an action of as-I ° sumnsit against Rouse and Thompson, overseers of the poor of * o i 1 the town of Norwich, on a special contract, dated July 3,1808, . , . between the supervisors and the overseers oi the poor of the two towns. By a statute passed the 3d of April, 1807, the old town of Norwich was divided, and a part thereof erected into a new town, by the name of New-Berlin. The act contained the usual provision, “ that the supervisors and overseers of ihe poor of the towns o {Norwich and New-Berlin should meet together, and divide the money and poor belonging to the town of Norwich previous to the division thereof, according to the last tax list, and that each of the said towns .should forever thereafter respectively maintain its own poor.” The supervisors and overseers of the poor of the two Lowns accordingly met, pursuant to notice for that purpose, and by written agreement determined, that there were six paupers of the old town of N.; and after dividing the poor money belonging to the town of N., giving to the former 175 dollars and six cents, and to the new town 173 dollars and fifty cents, instead of dividing the poor, they agreed, as follow's ; “ the poor found on the town of Norwich, the last Tuesday of February, consisted of William Jones, and his wife and four children, which we agree to support, in proportion, according to the division of the poor money between the two towns, according to the act in that case made and provided, each town respectively to pay the equal proportion according to the division of the monies ; these poor persons to be disposed of according to the best advantage, by the poor masters of the said town-;, or of cither of the said towns.” This agreement was signed by the supervisors and overseers of the poor of the two towns then •in office. It was proved at the trial, that the overseers of the poor of New Berlin, since 1808, had expended 255 dollars. in maintaining William Jones, on which they charged 17 dollars interest, and 14 dollars for their services as overseers, amounting in the whole to 286 dollars and 64 cents. It appeared that the wife and children of W. Jones, after the division, became no longer chargeable. The plaintiffs below claimed to recover of the defendants below, a part of the above sum, according to the ratio agreed upon between the supervisors and overseers of (he two towns.</p> <p>The defendants objected to the admission of the written agreement in evidence, on the ground that a special contract made by one set of overseers could not be given in evidence in an action against another set of overseers ; but the Court overruled the objection. The plaintiffs, also, offered in evidence several contracts and vouchers relative to the monies expended by them in supporting the pauper, to the competency of which the defendants object-e(]) but the Court admitted the evidence. The defendants below, offered to prove that the pauper owned land in the town of New-Berlin. The plaintiffs objected to the evidence, ^ut t^e Court overruled the objection. Á deed of conveyance of land to Jones was then read in evidence, the value of which land was about 1,000 dollars ; but it did not appear whether Jones became the owner of the land before or after the division of the towns ; the defendants proved that the wife and children of Jones maintained themselves on the land; but Jones himself was insane and a town charge. A bill of exceptions was tendered by the defendants to the opinion of the Court below.</p> <p>contended, that Jones, in fact, was not a pauper when the town of Norwich was divided ; and after the division, he acquired a settlement in the town of New-Berlin. (Overseers of Washington v. Overseers of Stanford, 3 Johns, Rep., 193.)</p> <p>Again ; admitting that the overseers of the poor of Norwich, for the time being, were bound by the contract signed by them in 1808, that contract was not binding on their successors in office. The overseers of the poor are not a body corporate, so that their successors in office can be sued in their own names, on a contract made by their predecessors in office. {Shear v. Overseers of Hillsdale, 13 Johns. Rep. 496. Jackson v. Cory, 8 Johns. Rep. 385.)</p> <p>There was no evidence to support the general counts in the declaration, for it was not proved that Jones was a pauper of N. and therefore, no promise to pay for his maintenance could be implied.</p> <p>The proceedings of the supervisors and overseers of the two towns, under the act of the 3d of April, 1807, by which they, found that William Jones was á pauper, is conclusive.. They woreauth'orized and directed by the act to ascertain who were paupers of N. arid divide ¿he poor between the two towns. The pauper was- a .charge On the town. The agreement entered .into was not A '¡personal contract, nor for the benefit qf-tfie individuals' wh&: signed it. The overseers of the poor, having the funds of the town in their hands, for the maintenance of the poor, are liable, as the representatives and agents of the town, in their official capacity. The overseers of the poor, when they leave their office, are required by law, to pay over the poor monies to their successors in office. The funds pass into the hands of their successors, who, if not properly a corporation, are, nevertheless, liable, in respect to the funds placed in their hands for this object. But we contend that the overseers of the poor are to be considered a corporation^ sub modo. Collective bodies of men acting under one general description, though not incorporated, yet in regard to certain rights, duties or trusts conferred upon them, not in their natural capacity, but in their public or official character, may be considered, so far, corporations, as to have succession, and the capacity of suing and being sued, in the right of ihe office they hold, and as far as their trust is concerned, distinct from their capacities as private individuals. Instances of these quasi corporations, are stated by Mr. Kyd, in the introduction to his treatise on the lam of Corporations,^. 9 — 19.) which are perfectly analogous to the present case, of public officers, known as overseers of the poor, who, quoad the funds entrusted to them for public purposes, must necessarily be deemed to have perpetual succession, and the power, therefore, of suing and being sued. Coke, [Co. Litt. 250 a.) says, “ a corporation is a body to take in succession, framed (as to that capacity) by policy,” &c. Blackstone, (1 Bl. Com. 472, 473.) after observing that the consent of the king, express or implied, is necessary to the erection of a corporation, mentions several sets of persons, as “ churchwardens,” — “ who, by common law,have ever been held corporations, virtute officii; and this incorporation is so inseparably annexed to their offices, that we cannot frame a complete legal idea of any of these persons, but we must have, also, an idea of a corporation, capable to transmit their rights to their successors, at the same time.” A grant of goods to the churchwardens of a parish, by that name, is good, though it is otherwise of a grant of land to them. (iShep. Touch. 236. 1 Kyd on Corp. Intro. 30.) In the case of Denton v. Jackson, (2 Johns. Ch. Rep. 325.) the Chan-cellar considered it as settled, that persons may have cor-p0rate powers, sub modo, for certain specified purposes only ; and he instanced the Loan Officers of a county, and tj,e Supervisors of a county, as being such corporations. So this Court, in Jackson, ex dem. Lynch, v. Hartwell, (8 Johns, Rep. 422.) held that the Supervisors of a county are a corporation for special purposes and with special, powers, though they could not take a grant of land. There is a perfect analogy between these overseers and those various officers in England, who are regarded as quasi corporations; such as parsons, vicars, churchwardens, &c. Lord Ellenborough, (11 East, 586.) said, that he considered all appeals against orders of removal, though technically carried on in the names of the"churchwardens and overseers of the respective parishes, as, in substance and effect, the suits of the parishioners themselves, who are to contribute to the expense of maintaining the paupers; and that, therefore a parishioner could not be called upon by the adverse party to give evidence. (10 East, 402, 403.)</p> <p>The fact of maintaining the pauper, and paying the money, was proved by the vouchers produced at the trial. The receipts were proved in the usual way. (Phillips’ Ev, 170.)</p>

MChesney brought an action of trover for a quantity of hay, against /. Lansing, in a Justice’s Court, and obtained a verdict for thirty-five dollars, on which a judgment was rendered by the justice. The defendant, pursuant to the statute, (sess. 41. ch. 94. s. 17, 18.).appealed to the Court of Common Pleas.

DEBT on a bond executed by the defendant, the 14th March, 1816, conditioned for the faithful execution of the °®ce sheriff of the county of Montgomery. The defendants, S. and F. who were sureties for E., craved oyer of the bond and condition, and pleaded performance of the condition.

IN ERROR, on certiorari to a justice’s court. House 1 J brought an action of assumpsit against Griffeh, in the Court below, to recover back money demanded and received of him by G. a toll-gatherer at the easternmost turnpike gate, on the Columbia turnpike road, on the ground that the toll was illegally exacted, in consequence of the gate having been erected at the place where it stands, illegally, and without any authority for that purpose. By the third sec-J ** 1 1 .

EJECTMENT for two messuages, &c. in the city of Schenectady, tried before Mr. Justice Platt, at the Schenectady circuit, in August, 1819.

IN ERROR, to the Court of Common Pleas of Orange County. Murray brought an action of trover against Woodward for a cow. The defendant pleaded the general issue. It appeared on the trial, that M. had gone to the state of Ohio; and had left his family, consisting of his wife and children, residing in the house which he had occupied. It was reported that he had absconded to avoid his creditors.

THIS was an action on the case, to recover damages for a fraud, in the sale of a negro man, named Tom, by the defendant to the plaintiff, tried at the Columbid circuit, before -Justice Van Ness, in December, 1819. The declaration contained three counts, 1. For falsely warranting the slave, as good, steady and honest:-2. For fraudulently concealing the fact that the slave was dishonest-, and addicted to stealing: 3.

IN ERROR, on certiorari, to a Justice’s Court. Carter sued Boughton before the Justice, for obstructing the turnpike road and ditch, opposite to the land and garden of the plaintiff, so as to cause freshets, and the water to 4 7 run upon* and wash his land and garden* The defendant, , . 7 at the trial, admitted that he made the obstructions complained of, and contended that he had legal right .to do so, jn or(jer (uaké the necessary repairs to the road, and to prevent its…

THIS was an action on the case, to recover compensation for supporting Elijah Briggs, a pauper, removed to Pittstown, by the overseers… Held: that the action could not be sustained. In Rex v. Byce, (1 Const. Poor Laws, 324.) an indictment was held to lie against a person who had appealed, for refusing to pay to the overseers the costs; and the reason given is, that there was no remedy provided, nor any direction given, by the statutes, as to the means of enforcing payment.

THIS was an action of assumpsit. The declaration contained counts on a special agreement, and for goods -sold and delivered, and the common money counts. The defen-The cause was dant pleaded non assumpsit and payment. tried at the Columbia circuit, in December, 1 !f 19, before Mr. Justice Van Ness.

THIS was an action of ejectment, tried at the Columbia circuit, before Mr. Justice Yates, in November, 1818. John W. Morse recovered a judgment in this Court against Roger Adsit, in an action of slander, tried at the September ° „ _ * circuit, 1816, for 734 dollars and 43 cents, which was docketed in November following.

THESE were actions of debt for legacies, brought in October, 1816, to recover legacies charged on land, by the w'^ Medcef Eden, deceased, against the terre-tenants of the land, of which the testator died seised; and tried at the . , 7 ; Mew-York Sittings, in October, 1819, before Mr. Justice WoodwortlU All the defendants (twenty-four in number) were relurn-ed, summoned, and declared against jointly.

<p>THIS was an action of ejectment, tried at the Herkimer • • • t ° Tr _ , circuit, m June, 1819, before Mr. Justice Yates. The defendant held, under a lease for lives, from Philip Schuyler, dated the 6th of September, 1790. The lessor reserved, among other things, all mines, and “ all creeks, kills, streams and runs of water, and as much ground, within the premises, which he might think requisite to appropriate, at any time thereafter, to the erection of mills, mill-dams, and ’ , ’ any works and buildings whatsoever for the convenient * o working of tl)e mines, or for the use of the mills ; and, also, lands that may, by such dams, be overflowed with water, and also such wood, firewood and timber, &c. It was conditioned on the part of the lessee, that he, or his executors, &c. should not, at any time thereafter, erect, or permit, or cause to be erected, any mill or mill-dam, or any other work or building whatsoever, upon any kill, creek, stream, or run of water within the premises ; and that neither he, , . or they, should, at any time thereafter, commit any waste.” And it was expressly covenanted and agreed, that in case the lessee, &c. did not perform, &c. all the covenants and conditions in the lease, on his part to be performed, &c. it should be lawful for the lessor, his heirs, &c. to re-enter, &c.</p> <p>The lessor of the plaintiff was the assignee of the reversion. It was proved, that the defendant, about 17 years before the trial, caused a ditch about six feet wide, and about four deep, to be dug for the distance of about twenty l'ods, and made a dam across the creek, communicating with the Mohawk river, by which means it was diverted from its ancient channel, and more water thereby flowed into a swamp, which had been previously covered with timber. When the defendant first took possession of the farm, it was wild land, and he cleared all of it, except this swamp, in which there was large timber growing, and which was the only timber reserved on the farm. The timber, afterwards, died, t>wing, as some of the witnesses believed, to letting in more waler from the creeij up0n the swamp, by means of the ditch dug by the defendant. Other witnesses thought that the decay was owing to the blowing down of trees, &c. There was a difference of opinion among the witnesses, as to the effect of the water flowing into the swamp, on the timber. It appeared, also, that after the old timber had decayed, new trees, of a different and better kind, had grown up, which, in a few years, would be more valuable, as timber, than the old. The lot leased to the defendant contained about 110 acres, and the swamp, which was the only woodland reserved, contained about 25 acres, which is about the usual proportion of wood and timber, on farms of that size, in that part of the country. Some of the witnesses thought the young timber, in its present state, was worth more than the old timber before it decayed. It was proved, also, that a number of years ago, the defendant had made a brick yard on the premises, and made brick, for which purpose the clay had been dug out of the meadows on the premises, but, after making a few thousand bricks, the defendant desisted, not finding it to answer his purpose.</p> <p>The judge charged the jury, that there did not appear to be sufficient evidence to show, that the decay of the timber had been caused by the defendant’s turning the course of the creek ; but if that were the case, it was of no consequence, as it clearly appeared, that the growth of new timber was more valuable to the lessor than the old, and that it was a benefit, rather than an injury to the farm ; and that -what the defendant had done, in this respect, ought not to be deemed a breach of the covenant in the lease. That the attempt to make brick, was a matter too insignificant to constitute waste, for it could produce no essential injury to the inheritance. The jury found a verdict for the defendant.</p> <p>A motion was made to set aside the verdict, and for a new trial.</p> <p>that the digging the new channel for the creek, even if it had not been the cause of the decay of the timber, was waste; for, digging up the soil, for any purpose, except that of cultivation, is waste.</p> <p>(Co. Lilt. 53. b. 2 Roll. Abr. 816. Owen, 66.) So, turning the creek across the meadow, is waste. Suffering a wall of the sea to be in decay, so that, by the flowing of the sea, the meadow or marsh is surrounded, and rendered unprofitable, is waste. (Co. Lilt. 53, b.) So, turning arable into wood land, or e converso, or meadow into arable, whereby the course of husbandry is changed, is waste. (Co. Lilt, ubi supra. Hob. Rep. 234.) Again ; erecting a dam across the creek, was a breach of the express covenant in the lease, not to build, or erect any mill, mill-dam, or any other work or building whatever. The terms, other “ work or building,” will include this dam. (16 Johns. Rep, 14. £2.)</p> <p>. Again; the neglect to preserve sufficient wood and timber for the uses of the farm, was waste. (7 Johns. Rep. 227. 233.) It makes no difference that the new growth of timber was better than the old. The question of waste does not depend upon that. The tenant has no right to take upon himself to judge what may be an improvement, or pot, of the estate of the reversioner. He must be confined to the conditions of his lease. (Dyer, 65. a. Cro. Jac. 182. 1 Lev* 309.) Besides, the young trees now growing, are not, at this time, of any value. They are not timber, nor are they fit for fuel, or any of the uses of the farm.</p> <p>The creek, the water of which the defendant turned, was not a mill-stream, nor could it be used for any purpose but that of irrigation. Waste is an act done to the injury of the freehold. (7 Johns. Rep. 732.) It must be a permanent injury to the reversioner. Now, turning the water of this creek, in the manner it was done by the defendant, was not such an injury. It was necessary to be done for the proper cultivation of the farm. As to the alleged consequence of turning the stream, the killing of the timber in the swamp, the jury have passed upon it, and their verdict negatives the assertion. So, whether sufficient timber was left by the defendant, for the use of the farm, according to the regular course of husbandry, has been decided by the jury. If a tenant manages his farm in the manner practised by his neighbours, and without any malice, or intent to injure his landlord, the Court will not be disposed rigidly to enforce a forfeiture of his lease. Again ; the lessor’s reserving sufficient timber to build mills, &c. seems inconsistent with the defendant’s reserving timber for the uses of the farm. Until the landlord comes and demands the exercise of the right reserved to him, he has no right to complain. The doctrine of the law of England, that changing arable into meadow, Sec. cannot, in reason or justice, be applied to a lease of new land in this country. It is indispensable, for the purposes of husbandry, to change the face of the land.</p>

THIS was an action on the case, brought against the defendant, late sheriff of the county of Washington, for not taking sufficient security, pursuant to the statute, in exe- . . » X /» v cuting a plaint m replevin, in favour of E. Rowley against t !*.•«» mi i ¶ . ’if the plaintiffs. Ihe declaration contained lour counts, to the first, second, and fourth of which there were separate demurrers.

THIS was an action of ejectment, brought to recover J 7 ° seven acres of land in the south west corner of lot No. 6, • i . . _ ^ _ . in the gore, in the town of Oxford ; ana was tried at the Chenango circuit, in June last, before Mr. Chief Justice & dpencer* The plaintiff gave in evidence a deed to him, from A. MlIntyre, the comptroller, dated the 20th of December, 18IT ; it appeared, that the premises in question were sold to the lessor of the plaintiff, at .auction, by the…

THIS was an action of trespass, and assault, &c. The declaration, after stating, that the defendant drove a sleigh, on the highway, with great force and violence against the sleigh in which the plaintiff, L., and his wife, were riding, and run one of the shafts of the defendant’s sleigh, into the plaintiff’s sleigh, and struck his wife, and broke her arm, &c., added “ whereby also, during all that time, he, the said H. L., was deprived of all the comfort, benefit and…

DEBT on a bond, conditioned, that whereas the plaintiff had obtained a judgment against J. A., defendant, before Nehemiah Huntington, Esq. (a justice of the peace,) for 44 •dollars and five cents, on a verdict; that if the said J. A. should prosecute his appeal from the said judgment, with .all due diligence, to a decision in the Court of Common ■Pleas of Madison county, and pay the said judgment, together with the interest thereon, and the costs of such J>eai, in case…

THIS was an action of covenant for the non-payment of rent. The declaration was on a lease of a lot of land in Oneida county, from the executors of R. to one James Farr, who assigned the same to the defendant, dated the 19th of August, 1794.

THIS was an action of assumpsit, tried at the Oneida 1 ' circuit, in June last. The declaration contained two special counts.

THIS was an action on the case, for erecting a dam on the Genesee river, turning the natural course of the stream, &tc., and thereby overflowing the plaintiff’s land.

This was an action of assumpsit against the defendants, i o on two promissory notes, made by “ Soulden. Held: that where one partner dies, and the survivor becomes insolvent, the creditors of the firm may have recourse to the assets of the deceased partner.

THIS viS^g^jtStS^^npsit, for money had and re-circuit, in September last, G. Stephens\ oiie of the defendants, left with the plaintiffs for collection, a promissory note of Hart & Alien, of Geneva, for 264 dollars and 36 cents, payable to the defendants or order, at the Bank of Geneva, and which fell due the 11th of November last.

THIS was an action of ejectment for part of lot No. 79, in Virgil, tried at the last Cortlandt circuit, before Mr. Chief Justice Spencer. At the. trial, the plaintiff gave in evidence a mortgage executed by the defendant, to Barclay, one of the lessors, J . ' dated the 20th of February, 1815, given to secure the pay-mentof a bond, the time of payment of which had elapsed, before the commencement of the suit. The defendant was in possession of the premises.

MOTION, on behalf of the defendant, for a new trial, on the ground of newly discovered evidence. The affidavits on both sides, were submitted to the Court, without argument.

THIS was an action of replevin, originally commenced in the Court of Common Pleas of St. Lawrence county, aud removed to this Court by certiorari. Held: and occupied the premises, under that lease, and prayed judgment whether the plaintiff ought to be allowed to question the title of the defendant, &c. To this replication the plaintiff demurred, and the defendant joined in demurrer. Talcot, in support of the demurrer, 1.

THIS was an action of assumpsit, on a promissory note made by the defendant, dated the 30th of Sepiambery 1818, For 1,000 dollars, payable to Lyman D. Prindle or order, ninety days after date, at the Bank of Niagara, endorsed by Prindle to E. B. Allen, and by him to the plaintiffs.

THIS was an action against the defendant, as sheriff of ^3e county °f Albany, for the escape of Thomas Mounsey, a prisoner, in execution, from the liberties of the gaol, tried 4 , ° at tlie Albany circuit, iu April* 1820. before Mr. Justice TTT 7 _ ° T . , Woodworth.

IN ERROR, on certiorari, to a Justice’s Court. Fox declared against Willard, before the Justice, on an account. The defendant pleaded the general issue, and stated, that he should, on the trial, set off an account and judgment.

EJECTMENT, tried at the Suffolk circuit, in May last, before Mr. Justice Yates. The only question, at the trial, was respecting a boundary line. For the purpose of introducing an award of arbitrators, on the subject in controyersy, the plaintiff offered an agreement of submission to two arbitrators, under the hands and seals of the parties, dated the 9th of April, 1817, to which there were two subscribing witnesses.

. THIS was an action of assumpsit. The defendant pleaded ne unques executrix, &c. on which a verdict was found against her, and a judgment ivas entered thereon for the plaintiff, for 260 dollars and 45 cents, to be levied of the goods and chattels of the testator, if so much remained in the hands of the defendant, to be administered ; if not sufficient, &c. then to be levied of the proper goods and chattels of the defendant. A Ji.

DQWER: On the first day of th>e last term, the demandant was called; and again, on the quarto die post, and a day was given for her to appear and prosecute her claim on the last day of the term; and the demandant not appearing on that day, her default was entered, and a judgment of nonsuit entered thereon. now moved to set aside the default, and subsequent proceedings, and read affidavits. . that the demandant was regularly out of Court, and that the motion could not now be…

THE defendant, T., was the maker of a promissory note endorsed by W. & A., plaintiffs in the second suit, which was discounted at the Bank of Auburn, for the benefit of T. The note being protested for non-payment, the Bunk of Auburn commenced a suit against T., and recovered a judgment against him on the 27th of October, and a fi. fa. was issued on the same day.

ED WARDS, in behalf of the corporation, presented a . . . . 1 . , 1 petition, praying leave to discontinue all further proceed-7 . . * ., mgs in this matter. It appeared, that in May term, 1818, the corporation, pursuant to the act, sess. 36. ch. 86. presented their petition .

^ie Court said, that they could not grant an attachment against the Indian; hut as the suit had been brought by an ° ° J a^orney> w^° was n°t an agent or attorney appointed by the state to manage the affairs of the Indians, they granted a rule on the attorney of the plaintiff, to show cause why an attachment should not issue against him.

IN ERROR, to the Court of Common Pleas, or Mayor’s cour(; cf the City of New-York, The writ of error.had . - been returned with the record, certified by the clerk of the Court-below,, without any rule or notice for that ¡purpose. On filing the writ and record, a rule was entered ip the book of rules, kept by the clerk of this Court, that the plaintiff in error assign errors in twenty days, or that his default be entered.

IN the above cause, and nine other suits on the same demises, Burr, for the plaintiff, moved for leave to amend count of the declaration, by inserting the sixth day °f May, instead of the “ first day of May,” 1819.

The bill stated, that Robert Roberts, being a creditor of William Griffith, with a view to secure some part of his debt, on the 22d March, 1810,… Held: that it was not void, but voidable only, by plea or writ of error. Upon authority, therefore, I insist, that the expressions in the statutes of 13th and 27th of Eliz., that conveyances, in contravention of those statutes, shall be deemed utterly void, &c. must necessarily be construed, as voidable only by the party aggrieved.

<p>notmadeby^he £ou?t ‘below! in" ftisbecourL Nor can a point which, had it been raised m theCourtbeiow, raighthavebeen met and obvia-tereforthefirst thepoin/rai's’ed byre¿mendme°nt beenr°obviated in the Court below.</p> <p>it is essential to a bill to redeem a mort-plaintiff should debt,10 interest! aThat°thepiain-purchaser“íbi^a vaiuabie consideration without notice, ^¡s relief Siough!t fencem°equity.</p> <p>there’ was^'a mortgage given to secure a‘debt of 3,000 dollars* which was registered as for .a debt of 300 dollars only, and the plaintiff, who was a bona Jide purchaser, without notice, filed his bill to be relieved against the mortgage, beyond the sum expressed in the registry, and to stay the mortgagee from proceeding to sell the land, under a power contained in the mortgage, 6zc. Held, that this was not a bill to redeem, and that the plaintiff could not sustain the bill for relief, though he might set up the facts as ground of defence.</p> <p>The registry of a mortgage, given to secure 3,000 dollars, but, by mistake, registered for 300 dollars, is notice to a subsequent bom Jide purchaser, to the extent only of the sum expressed in the registry.</p> <p>Where a deed was deposited by the grantor with TV., as an escrow, to be delivered to the grantee,, on his producing a mortgage executed and recorded, and a certificate of the clerk of there being no other incumbrance on record: And TV., on receiving the mortgage and the certificate of registry by the clerk, &c. delivered the deed to the grantee ; and the mortgage to the grantor: Held, that the condition was performed, and the deed well delivered to the grantee; and that it related back, so as to give effect to an intermediate conveyance by the grantee to C. although the clerk made a mistake in the registry of the mortgage, as to the amount of the debt,</p>