Volume 18 — Wendell's New York Reports

[10] [11] Error from the supreme court. The plaintiff declared in trespass quare clausumfregit, alleging that the defendants by their servants entered his closes with carriages, &c., broke down and destroyed his fences, and dug and subverted the soil, &c. The defendants justified under their act of incorporation, Statutes of 1826, p. 286, SfC., by the seventh section of which act it is enacted “ That the said corporation be and they are hereby authorized, by their agents,…

[80] Error from the supreme court. An action of trover, for the conversion of fourteen saw-logs, was brought in the Oneida common pleas by Esther Sanford against Eli Savage. The defendant pleaded the general issue. On the trial of the cause, the plaintiff proved that the logs belonged to her, and that they were delivered to the defendant at his saw-mill by a servant of Charles 0. Sanford (a son of the plaintiff), for the purpose of being sawed into boards.

[108] Error from the supreme court. This was an action of ejectment brought for the recovery of a house and lot in the city of New York. In 8 Wendell, (10 et sequitur,) will be found a statement of the case resulting in a verdict for the plaintiff, the opinion delivered in the supreme court denying a new trial, and' the opinions delivered in this court reversing the judgment of the supreme court.

[127] Error from the supreme court. In tne great fire in the city of New York, in December, 1835, a building belonging to R. L: Lord was blown up by the direction of the mayor, to prevent the spreading of the conflagration. D. N. Lord was, at the time, the tenant of the building, and had in it merchandise to a large amount.

[142] Error from the supreme court. Hewitt brought an action of trespass in a justice’s court against Noyes and Pettingill, for the taking of a horse. The horse was taken by Pettingill, as a constable, by virtue of an execution against Emery Lane in favor of Noyes. The cause was tried by a jury.

[147] Error from the supreme court. The wife of Rose, previous to her marriage, brought an action of assault, battery and false imprisonment against Bakeman, in the Oswego common pleas, and established her case by the testimony of a female of the name of Sally Holton.

[159] [160] Error from the supreme court. Van Wyck brought an action of ejectment against Wright and Johnson for the recovery of land in the county of Tompkins, being part of a large tract, called Watkins and Flint's purchase.

[170] [171] Error from the supreme court. Van Wormer sued the corporation of Albany in an action on the case, for causing to be pulled down and prostrated certain buildings belonging to him.

[176] Error from the supreme court. Bostwick and wife brought an action on the case against Champion and others, for an injury sustained by the wife in being thrown from a wagon in which she was riding, in consequence of a stage coach coming in collision With the wagon through the negligence of the driver of the coach. The plaintiffs recovered a verdict, and the defendants moved for a new trial, which was refused by the court, and judgment rendered for the plaintiffs.

[188] [189] Error from the supreme' court. Champlin sued Rowley in an action of assumpsit, and declared on the common counts for goods and chattels and hay sold and delivered.

[201] Error from the supreme court. Nicholas Van Alstyne and his wife Cornelia brought an action of ejectment against Daniel Spraker, for the recovery of… Held: that according to the words of the devise in that case, all legatees might call on the devisee for their demands. In the case of Jackson v. Murrell, (6 Johns. R. 192,) a direction that the devisee should pay out of the fast estate certain legacies, was held to pass a fee. In the case of Jackson v. Harris, (8 Johns.

[214] Error from the supreme court. Clark and Brown were the owners of adjoining farms. The cattle of Clark passed from his farm, where they were pasturing, over a defective fence to the farm of Brown, where they ate so much unripe corn there growing as to kill them. Clark called upon the fence viewers of the town in which the premises were situated, to appraise his damages.

[237] [238] [239] Appeal from chancery. The respondents, in March, 1831, filed a bill against the appellants, the principal object of which was to obtain a decree declaring certain judgments obtained by the respondents against James Lynch, a lien upon and directing the same to be satisfied out of certain equitable interests created in his favor by the will of his father Dominick Lynch.

[259] Appeal from chancery. In October, 1828, the father of the respondent made and published his last will and testament, whereby, after disposing of his plate, family pictures, &c., he gave to his executors all his personal estate in trust to pay to his wife an annuity of $3000; and, after paying the said annuity, to divide the surplus yearly income of his personal estate among all his children, until four years after the youngest of them should arrive at lawful age, and…

[320] [321] [322] [323] Appeal from, chancery. On 27th April, 1824, A. Grade, C. King and W. Gracie, (constituting the firm of Archibald Grade & Sons,) executed an assignment to C. Wilkes and J. Goodhue, of the city óf New-York, whereby, after reciting that they were indebted to certain -persons named in a schedule annexed to the assignment, in the amount set opposite to their respective name's, Which debts they alleged they were then finable to pay, 'but were willing to…

The appellants filed a bill in chancery to obtain an injunction to stay suits at law against them upon two promissory notes, one for the sum of $8000, and the other for $1457. The cause was heard upon pleadings and proofs before the vice-chancellor of the first circuit, who dismissed the bill with costs.

[355] Appeal from chancery. Sturtevant filed a bill in chancery, to set aside, as fraudulent, a conveyance of a moiety of a house and lot in the city of New-York, executed by Jera Waterbury to Nathaniel Waterbury. On the ninth day of October 1828, the respondent recovered a verdict against Jera Waterbury for $5000, on which, according to the practice of the court, judgment could not be entered until the eighteenth of October.

[370] [371] Appeal from chancery. In this case, a bill in chancery was filed for the partition of a farm, to which the parties claimed title under the will of Isaac Clason, made 26th September, 1810.

[376] Appeal from chancery. The appellant filed a bill in chancery to set aside a conveyance alleged by him to be voluntary. The cause was heard before the vice-chancellor of the first circuit, who dismissed the bill with costs ; which decision was affirmed by the chancellor. The complainant below, thereupon appealed to this court. The facts of the case will be seen in the opinion delivered by Mr. Justice Bronson. (See also 1 jEdwards’ Oh.

[408] Appeal from chancery. The appellants filed a bill in chancery for the foreclosure of two mortgages executed by the respondent, who filed a cross-bill, praying that the mortgages might be cancelled and delivered up, and the appellants be directed to refund the moneys paid by him on the purchase of the lots specified in the mortgages.

[427] [428] Error from the supreme court. Gallagher and Mason brought an action of assumpsit against the Messrs. Waring, to recover the damages sustained by them in the purchase from the defendants of 50 bales of cotton. Th% first count of the declaration charged a sale of the cotton by sample, and alleged by way of breach, that the cotton was not of the like goodness and quality with the samples exhibited, but was inferior thereto; being bad, damaged, dry, and rotten.

[450] Error from the supreme court. Wright sued the defendants in error, in the superior court of the city of New-York, for breach of warranty in the sale of 315 barrels of flour. The declaration contained several counts, alleging that the flour was sold as good, sound, wholesome, merchantable, and of the first quality, and averring that it was not good, and that it was unsound, unwholesome, damaged, unmerchantable, and of inferior quality.

[467] [468] Error from the supreme court. This was an action by the Catskill Bank against Jacob I. Stall, John I. Traver, and Henry Teats, junior, on a promissory note drawn by one E.dward Shook, for the sum of $1000, payable to the defendants, who transacted business together under the partnership name of J. I. Stall & Co. The note was endorsed by Teats, one of the defendants, in the partnership name, for the accommodation of Shook, the maker of the not.e. Stall did not…

[491] Error from the supreme court. Hecox sued Benedict, Lothrop, Perine, and Collins, survivors of one John Drake, junior, in an action of assumpsit for moneys paid, &c. On the trial, he claimed to recover the amount of a note discounted at a bank, which he alleged he had signed as surety, and had been compelled to pay; and that the money obtained upon the note had been appropriated to the use of all the defendants.

<p>[n an action oi replevin against a sheriff, where the jury find part of the property in the sheriff, and the plaintiff obtains an order for a new trial from the circuit judge, and then before the next circuit, the sheriff dies, leave will be granted to the executors of the sheriff to sue out a scire facias to revive the suit.</p>

<p>Where a motion is made by a defendant to set aside an execution on the ground that the judgment was paid and satisfied before the issuing of the execution, and a receipt in full is produced ; and the plaintiff comes in and answers that there was fraud in obtaining the receipt, the motion will be suspended until the next special term, when the plaintiff will be required • to move for leave to issue the execution, the defendant to have leave to answer, and the costs of the defendant’s motion will abide the costs of the motion on the part of the plaintiff.</p>

<p>A certiorari to remove a cause from the common pleas, cannot be issued after one trial had in that court.</p>

<p>A prochein ami should be appointed previous to the issuing of a capias at the suit of an infant •, but the proceedings will not be set aside if an appointment be made previous to the motion, and the costs of the motion be paid.</p>

To a declaration in assumpsit the defendant pleaded seven distinct pleas of set-off, and added a general notice of set-off. The plaintiff moved to strike out six of the pleas.

<p>Where there is a failure to elect a supervisor at an annual town meeting, in consequence of a lie in the votes of the electors, and the meeting adjourns without electing any person to fill that office, it is competent for three justices of the town to appoint a suitable person to the office, who, and not a person subsequently elected at a special town meeting, is entitled to hold the office.</p> <p>t) 34, 35 and 36 of the act on the subject of town officers relate to cases where officers have been duly elected or appointed, and the offices have subsequently been vacated, by refusal to serve, death, resignation, removal, or incapacity.</p>

<p>This was a motion for judgment as in case of nonsuit in an action of replevin, where the plaintiff noticed the cause for trial and neglected to try it. The defendant also asked for such other rule or order as the court should think fit to grant.</p>

<p>A writ in replevin cannot legally be executed unless a bond with two sureties be delivered ta the sheriff.</p> <p>Whether the remedy should not be' by exception instead of motion, queue.</p>

This is an action of replevin, brought against the defendant for property levied on by him as sheriff of Montgomery county, by virtue of several executions against one St. John. The cause was brought to trial, and after witnesses had been examined on both sides, the plaintiff submitted to a nonsuit and paid the jury.

[527] This suit was commenced by scire facias. The defendant demurred to the same. The plaintiff entered a rule to amend as of course, and served an amended scire facias on the defendant’s attorney, which was disregarded by the defendant’s attorney, and the plaintiff’s default for not joining in demurrer entered. The plaintiff and defendant made cross-motions: the first, to set aside the default; and the second, to set aside the amended scire facias, because not sealed.

The suit in this case was .commenced by the filing and service of a declaration. The default of the defendant was entered for not pleading, the damages assessed, judgment signed, and execution issued. The defendant moved to set aside the proceedings subsequent to the default on an affidavit that he was a practising attorney of this court, and that no notice of assessment or inquiry had been served upon him ; he also made an affidavit of merits.

<p>A circuit judge has not the power to order a discovery of papers, except in vacation.</p> <p>In application for discovery, the party applying is held to a strict conformity to the rules of court on this subject.</p>

<p>Motion for costs against executors.</p>

[535] Motion for peremptory mandamus on the coming in of the return to an alternative writ. Shiner sued the relators in the court below and declared in covenant. The declaration was entitled generally of December term, 1835, which commenced on the 21st day of that month, and the breach of which the plaintiff complained was alleged to have happened on the 25th December, 1835.

Motion to set aside a default. The rule to plead expired on the twenty-second day of February. On the next day, before 8 o’clock A, M., a plea was delivered to the plaintiff’s attorney, who refused to receive it, saying that a default had been or would be entered that morning, he having written his agent to do so. The default was entered that morning, but not until nine o’clock A. M. It appeared that the object of the defendant was delay.

<p>A district attorney is not entitled to charge, in his hill of services rendered, a subpoena ticket besides a subpanu for each witness.</p> <p>Nor is he entitled to a fee on the usual motion for judgment after a verdict of guilty, or for arguing in relation to the sentence where the court has a discretion as to the extent of the punishment.</p>

The relator states in his affidavit that he is one of the professors of the medieal faculty of Geneva College; that he was duly elected a delegate to represent the college in the State Medical Society; that he attended the annual meeting of the society on the first Wednesday of February last, and presented his credentials, but was refused a seat in the society, “ on the ground that the medical faculty of Geneva College is not a ‘ college of medicine’ within the meaning of…

The issue joined in this case was tried in September, 1833, and the plaintiff nonsuited. The plaintiff on a bill of exceptions moved to set aside the nonsuit and for a new trial. The motion was denied by the circuit judge on the 30th of December last. • Rending the motion for a new trial the defendant died. The precise time of his death does not appear, it being supposed that he perished at sea about eighteen months ago.

[545] Motion to set aside a judgment for costs. This was a proceeding under the statute to compel the determination of claims to real property, (2 R. S. 312.) On the 8th July, 1835, Tanner served a notice on Tibbits, pursuant to § 2. The premises are situate in Williamstown, Oswego county.

[548] Motion to set aside verdict for irregularity. This was an action against Van Schaick, as maker, and the other two defendants as endorsers, of a promissory note. The declaration had one count on the note, containing all the necessary allegations to charge all the defendants, the money counts, and account stated. A copy of the note was served with the declaration.

[551] The-relators recovered a-judgment against Augustus Gardiner, before a justice of the peace, for twenty dollars damages and costs of suit.

Motion by. plaintiffs to set aside a judgment of nonsuit perfected by the defendants, and for leave to prosecute an appeal from the decision of the circuit judge to the, supreme court. [554] The action was tried at the Greene circuit in September last, and the plaintiffs nonsuited.

A motion was made in this case for the re-taxation of a bill of costs. The grounds of the motion sufficiently appear in the opinion delivered.

A motion was made for the confirmation of the report of the commissioners of estimate and assessment in this case, which was opposed on the ground that the district of assessment was not co-extensive with the proposed improvement. There were other questions discussed, which are not deemed material to notice. In respect to the assessment district, the following opinion was delivered:

The relator, Phelps, sued George Ingalsbe before a justice, and at the close oí the trial and while the- parties were present, the justice made up; entered in his docket, and declared a judgment for the plaintiff for $46.98 damages besides costé. The plaintiff applied for an execution, and the defendant gave a bond to stay execution, reciting the judgment as above.

This was a motion for a perpetual stay of proceedings. The plaintiff declared upon an arbitration bond in the penalty of $500, stating an award for $13.72. The defendant’s attorney offered to pay the $13.72 and common pleas costs, but the plaintiff’s attorney claimed supreme court costs. The defendant now moves that the clerk compute the amount due to the plaintiff, and that on payment of that sum into court, all further proceedings stay perpetually.

<p>-A motion for judgment as in case of nonsuit may be made by one of several defendants, where the maker, the first endorser, and second endorser of a note are proceeded against under the statute in a joint suit.</p> <p>Where, however, such motion was made by the second endorser, after he was informed that the maker had paid the debt, the motion was denied.</p> <p>It seems, had it appeared that the defence was made in good faith, in opposition to an unfounded claim, that the plaintiff would have been directed to pay the defendants’ costs, and perhaps to proceed to trial.</p>

After plea pleaded, the defendant moved to set aside all proceedings on the part of the plaintiffs, on the ground that they are infants, and that the suit is prosecuted without the appointment of a prochein ami. It was shown on the part of the plaintiffs, that a prochein ami had been appointed since the commencement of the suit, but notice of the appointment had not been given to the defendant.

Motion to strike out the defendants’ second and fourth pleas as false, and to vacate an order to stay proceedings. [566] The pleadings- as presented for this motion are these : Declaration on money, counts, with a.copy of a note for $7380.- Pleas, 1. Non-assumpsit; 2. No such-corporation ; 4. That the defendants had -paid the plaintiffs $5000, .which was accepted and received in full satisfaction and discharge of said note.

<p>This was a motion for the confirmation of a report of commissioners of estimate and assessment: which was opposed by Charles Kelsey, and by the heirs of Simon Cornell. The facts are sufficiently detailed in the opinion of the court.</p>

This was a motion by the plaintiffs for the re-taxation of their attorney’s bill of costs. The plaintiffs recovered in an action of assumpsit less than $50, and consequently were not entitled to tax costs against the defendant. Their attorney demanded a full bill of supreme court costs. The plaintiffs insisted he was entitled to only common pleas costs.

Motion to set aside a default. Platt served Torrey with a notice under the statute to compel the determination of claims to real property, (2 JR. S. 312.) The notice was served on the 29th January, 1836; a rule to appear and plead was entered the next day. Torrey employed an attorney, who served notice of retainer on the 24th of February.

The relators-were sued pn a contract, and a report of referees was made against them.fpr - a large amount. They applied to the court below to set aside the report, on the grounds that it was against the weight of evidence and contrary to law. The court denied the. motion, and the relators now ask for an alternative mandamus.requiring -the court- below- to set aside the report and to order a re-hearing, or to show cause, &c.

On an affidavit of the defendant that the person of the plaintiff had been exonerated from imprisonment pursuant to law, and that the defendant had not since contracted any debt to him, Judge Edwards made an order that the plaintiff file security for costs within twenty days, or show cause at the next special term of this court; and in the mean time -the plaintiff’s proceedings were stayed.

This was a motion for re-taxation of costs. It was objected that, the affidavit and notice of motion had not been duly served. It appeared that service was made by putting the papers under the door and pushing them into the attorney’s office, no person being therein, and the same being shut and locked.

Fryer brought an action for trespass qmare clausum fregit in the N. Y. common pleas, against Bennet, who pleaded the general issue, and gave notice of justification.

[582] Motion to set aside proceedings for irregularity in an act of replevin. Williams obtained two judgments against Wilson in a justice’s court, one for $35 and the other for 840, in suits commenced by attachments under the act to abolish imprisonment, &c., by virtue of which, property belonging to Wilson was seized.

[587] This was an application for a peremptory order (after an order to show cause) directing Alanson Bennett, one of the attorneys of this court to refund to the relator $150.47, received from him as taxable costs in a qui tam action prosecuted by Bennett as the attorney of one Mitchell against, J. E. Hinman, Esq., late sheriff of Oneidario recover the penalty of $250, given by § 6 of~the act to present abuses and delays in the action of replevin.

A new trial was granted on payment of costs. In the bill of costs were taxed the sheriff’s fees for continuing the advertisement of the sale of the defendant’s property under the execution issued in the cause, subsequent to an order to stay proceedings on the execution until the decision of the court on a case made for a new trial.

<p>A defendant who makes a case to apply to a circuit judge for a new trial, and who does not appear to argue the same, and a new trial is refused on his default to appear, is not entitled to appeal to the supreme court from the order made by the circuit judge.</p>

Motion as to the application of moneys raised on executions as between conflicting plaintiffs. In August, 1835, Tooker fy Hait, the judgment debtors, entered into a contract to build a ship for The Dutchess Whaling Company, at a price per ton which amounted in the aggregate to about $13,000 ; the company to make certain specified payments as the work progressed, the last payment to be made when the vessel should be delivered afloat.

The relators sued John Ostrander before a justice of Saratoga county, and recovered $27.50 damages, and $3.68 costs. The defendant appealed to the common pleas. The affidavit on which the appeal was allowed stated the issue joined before the justice, that there was a trial by jury, and several witnesses were sworn for each party, and that there was a verdict and judgment for the plaintiffs.

[599] Motion for mandamus. On the 21st February, 1835, the sheriff, by virtue of an execution, sold all the right and interest of one Vanderin in a farm of 115 acres, to the relator for $300. A certificate was made pursuant to the statute, stating that the purchaser would be entitled to a deed on the 21s’t May, 1836.

A cognovit was given in February last, and in May judgment was entered thereon in the names of the original parties. “In March preceding, one of the plaintiffs died, but his death was not known to the plaintiffs’ attorney at the time of the entry of the judgment. The defendants move to set aside the judgment and subsequent proceedings for irregularity, because the death of the party was not suggested on the record. ,

Pleading to an information in nature of a quo warranto. An information with two parts having been filed - charging the defendant with intrusion into the office of constable of the town of Cherry Valley, Otsego county, and showing title to the office in the relator, the defendant pleaded four pleas, as if by leave of the court, under the statute of double pleading.

This is a motion for a peremptory mandamus against the board of supervisors of the city and county of New-York, to compel them to strike from the tax list for the year 1835, and from the warrant of the collector, the name of the Commercial Insurance Company.

[609] Motion for a mandamus. The relator moved for a mandamus to the New York common pleas, commanding them to vacate a rule for a new trial, granted by them in a cause prosecuted by one McWade against the relator. The action was covenant for rent due on an agreement under seal. The defendant executed the agreement as a surety for the lessee, who entered and held for three or four months.

<p>Where property worth §1000 was struck off at a sheriff’s sale for a trifling sum, and it was shown that the plaintiff in the execution had been disappointed in the attendance of an agent, and that the defendant was insolvent, the sale was set aside and a re-sale ordered.</p>

Proceedings under the statute against abscondiny, concealed, and non-resident debtors. An attachment was issued under this statute, (2 R. S. 3, § 1, sub. 2,) against the property of C. Y. Haynes, a non-resident debtor.

The declaration in this case contained one count in trespass on the case for an assault and battery, under the 2 R. S. p. 553, § 16, which authorizes case instead of trespass, at tile election of the party, in all cases of injury to the person, personal property, or rights of another, or to his servant, child, or wife, for which an action of trespass may by law be brought. There were, besides, two counts for a malicious prosecution in the same declaration.

[622] Lien of judgment. A judgment was docketed against the defendant 22d March, 1825, which' was revived by scire facias on the 13th May, 1826, and again on the 11th July, 1836. Ah execution was issued against the real estate of which the defendant was seized on the day of the original docket.

<p>On the death of the tenant in a writ of right after verdict in his favor, although a bill of exceptions was tendered, the suit abates, and the heirs or devisees will not be substituted.</p>

Motion to set aside a declaration as irregular. A capias was issued in an action of assault and battery, and an order to hold to bail was obtained. Blennerhasset only was taken, and the plaintiff declared against both defendants, as in an action againstjowii debtors, stating Blennerhasset to be in custody, &c., and that the sheriff had returned Trotter not found, and then alleging the assault and battery to have been committed.

James J. Hasbrouck applied to the Ulster common pleas for an order directing the sheriff of Ulster to pay over to him the surplus of the .proceeds of a sale of real property under executions against James O. Hasbrouck, on the ground that he was entitled to the same as a judgment creditor of James O. Hasbrouck.

[632] This cause was removed by certiorari from the Schoharie common pleas to this court. It was at issue and ready for trial when the certiorari was sued out. It was returnable the first day of October term, 1836.

In June, 1836, two writs oi fi.fa. were issued on two several judgments, in the common pleas of Montgomery, against J. S. Davis, one in favor of T. and the other of J. Davis, and levied on the goods of the defendant. By mistake, the year of the teste was 1826 instead of 1836.. A fi. fa. from the supreme court was immediately afterwards issued in favor of H. Chapman against J S. Davis, and also levied.

[636] The suit was on a joint and several promissory note made by the defendant and one Hoag, in the year .1825, for 6736, payable with interest four years after date to Robert Le Roy -Livingston or bearer. Livingston transferred the note to ¡Van Orden in his lifetime. The ^administrator, finding the note among the papers of the intestate, sued to recover the amount.

[639] Habeas corpus, in a case of minor children, on the question of their custody, as between their parents.

[645] Motion to discharge from, arrest. The defendant was arrested on a capias and held to bail in the sum of $1500, in an action of assumpsit, under an order to hold to bail, made by the recorder of We w-York, on the ground that ’ the defendant was not a resident of this state, but was a resident of the state of Indiana. moved that the defendant be discharged from bail on endorsing his appearance on the capias. besides reading affidavits in opposition, objected, 1. that the…

<p>Motion for a commission to examine witnesses. The facts are sufficiently stated in the opinion of the court.</p>

Ambrose L. Jordan and Allen Jordan commenced an action of assumpsit against the defendant, declaring hy AUen Jordan, their attorney. The plaintiffs are partners, and claimed to recover for work, labor, care, diligence, and attendance as the attorneys, counsellors, solicitors, and agents of the defendant in the prosecuting of divers suits and businesses. They attached to the declaration and served with it a hill of particulars, which was taxed at $17.50.

[650] The plaintiff sued in this court, and declared in trespass quare clausum fregit, for breaking and entering a certain unenclosed, unoccupied, and uncultivated lot of land of the plaintiff, covered with water, of which the- plaintiff had no actual possession, called Wickham's Pond, and for fishing therein. The defendant pleaded leave and license, on which issue was joined, and to that issue alone, with the damages, was the evidence addressed at the trial.

moved to stay proceedings in a mandamus case until security for costs should be filed, because, after the alternative mandamus issued, the relator had removed to Michigan. He cited 10 Wendell, 598; 2 R. S. 620, § 1, 2; id. 586, § 54, &c.; Jac. L. Dict.

Costs in replevin. The verdict was for the plaintiff, with nominal damages; but the jury did not assess the value of the property replevied. It had been ascertained by the sheriff, who took the replevin bond at $55, and the plaintiff had his costs taxed at the common pleas rate, which he collected. A motion was made to set aside the judgment as to costs of increase, and to refund.

The plaintiff died the first day of the circuit; after which his attorney proceeded at the same circuit and took á verdict; though the death was objected by the defendant as an abatement of the suit. The defendant, relying on the objection, refused to appear at the trial, and now moves to set aside the verdict. He also presents an affidavit of merits.

Motion to set aside default and subsequent proceedings for irregularity. The time to plead expired on the fifth of J anuary. A plea was served on the law agent of the plaintiff’s attorney at Geneva, on the sixth of January. The plaintiff’s attorney resided in the city of New-Tork, and on the same day entered' the defendant’s default for want of a plea at the clerk’s office in that city, and subsequently perfected judgment, before he learned that a plea had been served.

This was a motion to set aside an inquest. The defendant produced an admission of due service of notice, signed by the agent of the plaintiff’s attorney. The plaintiff read an affidavit of the agent that short notice was given.

[657] Motion to set aside inquest. The suit was commenced in December last, by the service of a declaration containing a count on a promissory note and the common money counts. On the 26th December, the defendant pleaded specially, that before the commencement of the suit, to wit, on, &c., the plaintiffs for a valuable consideration agreed to give time of payment until the first day of January, 1837.

Order to stay proceedings. After notice of trial served, the defendant obtained an order to stay proceedings to enable him to move for a commission to examine witnesses. The plaintiff on the first day of the circuit obtained a vacatur of the order, and without giving notice of the same, on the next day took an inquest, which the defendant now moved to set aside as irregularly taken.

<p>Costs in the court for the correction of errors.</p>

<p>Motion for a mandamus to the comptroller, commanding him to issue his warrant to the treasurer to pay to the rélator $1591.90, being the balance collected by the state agents and paid into the treasury, as tolls of the Albany basin for 1836. The whole of the collections for that year were $3782.54. Of this, $2190.64, it is admitted, were due to the proprietors; The balance contested was expended by the state, in causing a navigable channel tó be opened through the basin, the necessity of Which is not disputed. The basin was out of repair and unnavigable. The comptroller, assuming that it was the duty of the pier proprietors to make the repair, after demanding of the relator, then the president and secretary of the proprietors, that they should discharge that duty, caused it to be done at the expense of the state; and the commissioners of the canal fund directed him to recoup the state out of the funds in its hands. Under that order he retains the balance in question.</p>

[667] Executors and administrators. In May term, 1835, the plaintiffs obtained a judgment by default, against the defendants as administrators, for $1203.66, to be levied of the goods of the intestate; upon which an execution issued, which was returned nulla bona, except as to $32.37. A suit was then commenced upon the judgment against the defendants in their ‘ individual characters, alleging a devastavit.

The defendant moved for judgment of non-pros, on the ground that a peremptory order for a bill of particulars had been made, and that though a bill had been delivered, it was evasive. The plaintiff contended that the bill was not evasive, but a bona fide compliance with the order.

A motion was made in behalf of the defendant to set aside a judgment entered on a report of referees, and for leave to serve affidavits whereon to found a motion to set aside the report. The excuse offered for not complying with the general rule on this subject, was, that the party had not notice of the signing of the report. In answer,, it was objected that it was not the practice to give notice.

Motion by the plaintiff, that Edwin R. Ball pay the costs which have been adjudged against the defendant. The suit was replevin, commenced in the Rensselaer common pleas, for a pair of horses which the defendant had taken as a constable, on an execution in favor of Ball against Jacob Goon.

[676] Motion for peremptory mandamus on return of an alternative writ. Husenbury and Painter employed an attorney to bring an action in the superior court of the city of New-York, against Holdsworth and Poillon.

A writ de homine replegiando was sued out in this case by the alleged slave, and a motion was now made by the claimant to quash the writ, on the strength of the decision of this court in the case of Jack, a negro man, v. Martin, (12 Wendell, 311.) insisted that the certificate granted by the recorder in this case, to the claimant, was granted without such proof having been adduced as is required by the statute on this subject, (Laws of the U. S. vol. 2, p. 165, passed 12th…

The question in this case was, whether where a special verdict is taken at the circuit, the cause must in the first instance be heard before the circuit judge, or whether it may be directly brought before this court without any order to that effect from the circuit judge.