Volume 19 — Johnson's New York Reports

THIS was an action of assumpsit against the defendant, as endorser of a promissory note for 800 dollars, dated ii -r June 26, 1818, made by James JvrJsamara, payable to F. Stranahan, or order, sixty days after date, at the office of the Utica Insurance Company, and endorsed by Stranahan to the defendant, who indorsed the same to the plaintiffs, &c. The defendant pleaded, that the plaintiffs ought not to have or maintain their action, &c. because, on the 1st of September,…

THIS was an action of replevin for a pair of oxen, taken by the defendant from the close and possession of the plaintiff.

THIS was an action of trespass, assault and battery, and * . . * false imprisonment, tried before Mr. Chief Justice Spencer, _. . . , at the Columbia Circuit, in November, 1820.

THIS was an action- of assumpsit, tried before Mr. Just¡ce Van Ness, at the Genesee circuit, on the 6th of June, jg20. A verdict was taken for the plaintiff, subject to the 1 i opinion of the Court on a case made. The declaration ^ contained a count on a special agreement, and, also, the ge- , neral counts.

THIS was an action of debt on a bond, tried at the Oneida Circuit, in September, 1820, before Mr. Justice Yates. The defendant, after craving oyer of the bond and condition, pleaded non est factum.

THIS was an action of assumpsit tried before Mr. Justice Woodworth, at the Herkimer Circuit, in June, 1820, when a verdict was taken for the plaintiff, subject to the opinion of the Court, on the following case: the declaration was on a promissory note for one hundred dollars, drawn by the defendant, and payable to the plaintiff, (not to his order.) By a special endorsement, the note was assigned by the payee to Frederick Getman, to be collected at his own risk and expense.

ON certiorari to the Court of General Sessions of the Peace of Otsego county. By the return, it appeared, that Mary Reynolds, alias Mary Olds, was born and settled in the town of Great Barrington, in the state of Massachusetts; and, in 1812, being of the age of twenty-two years, and in good health, she came directly to the town of Chatham, where she resided thirteen months, and continued in good health.

THIS was an action of debt on a bond, given by Russel Atwater, one of the commissioners of loans for the county of St. Lawrence, and by the defendant Foot, as his surety f pursuant to the “ act authorizing the loan of moneys to the citizens of this state,” passed April 11, 1808.

THIS was an action of covenant, tried before Mr. Just‘ce Van Ness, at the Albany circuit, in October, 1819.

TROVER for promissory notes. The declaration described the note, as follows : “ one promissory note in writing made and drawn by one Francis Carlisle, whereby the said F. C. promised to pay to (the plaintiff) John D. Bissel, or his order, a certain sum of money, to wit, the sum of one hundred and eighty dollars, at a certain time therein mentioned, now past.

THIS was an action of assumpsit. The first count in the declaration stated, that whereas, on the 18th of April, 1817, at E., &c. in consideration that the plaintiff, at the special instance and request of the defendant, would sell and deliver to Elias Hull, certain goods, &c., as the said Elias should require. &c. and receive, as a collateral security, for the payment of the said goods, &c., a certain promissory note for 470 dollars, made by the said E. Hull, payable to…

THIS was an action on the case, tried before Mr. Justice Platt, at the Oneida circuit, in December, 1817. At the trial, the plaintiff abandoned all the counts in his declaration, except the one for money had and received to his use. Under that count, he gave in evidence a receipt of the defendant, for ninety dollars, part of the purchase money for a house, &c. in the possession of Luke Frink.

An action was brought by Johnson, in the Court below, against Vibbard <£• Abbott, for a chest of tea sold and delivered. At the trial, it was proved, that in April. 1815, Abbott applied to Johnson for a chest of tea, and desired /« to let him have it, and account to Noah Vibbard for it. J. refused, tellihg A. that if he took it, he must pay him for it. A. then agreed to take the tea.

EJECTMENT for lot No. 11 in Junius, tried at the Se~ neca Circuit, in June, 1820, before Mr. Justice Van Ness. The plaintiff gave in evidence the exemplification of a patent to Lieut.

THIS was an action on the case brought against the defendant, as sheriff of Dutchess county, for a false return to a fieri facias against John Frear, at the suit of the plaintiffs, ^'be declaration contained several counts, which were in substance, 1.

DEBT on a judgment. The defendant pleaded á release. The plaintiff replied, that before the judgment was rendered, the plaintiff, for a valuable consideration, assigned to David Gleason all his demands against the defendant, for the recovery of which this action was prosecuted ; and that the defendant, before the release was made, &c. had notice.

THIS cause came before the Court on a bill of exceptions, taken to the opinion of the Judge at the trial. On the 10th day of December, 1813, the defendant, for the consideration of 9,500 dollars, conveyed to the plaintiff several parcels of land, lying in the county of Essex.

THIS was an action of assumpsit. The declaration contained the usual money counts.

ASSUMPSIT on two promissory notes: one dated the 10th of December, 1818, for 90 dollars, made by the defendant, payable to the plaintiff; the other, for 61 dollars 79 cents, payable to William Nelson, or bearer, on demand, with interest. The cause was tried at ‘.he Putnam Circuit, in September, 1820, before Mr. Justice Woodworth.

IN ERROR, to the Court of Common Pleas of Albany» Smith brought an action of assumpsit for money had and received tp his u.se, against the Mechanics' and Farmers' Bank in the city of Albany. At the trial, in the Court below, Chester Bulkley was called as a juror, and challenged to the favour, by the plaintiff’s counsel, Two of the jurors who . t y had been impanelled, were sworn as triors.

NELSON, for the defendant, moved to set aside the . default entered in this cause, and all subsequent pro- . . - r , ceedings, for irregularity.

THIS was an action of slander, originally commenced in the Court of Common Pleas of Putnam county, and removed into this Court by habeas corpus. By the rules and practice of the Court below, special bail may be required m an action of slander; and special bail had been filed in the cause, in that Court. On the return of the habeas corpus to this Court, the defendant filed common bail.

IN ERROR, on certiorari to a Justice’s Court. An action of assumpsit for use and occupation was brought by the St. Regis Indians against Drum, (a white man.) The plaintiffs, by their attorney, offered to prove, that the defendant went into possession of the premises in question, as tenant of the plaintiffs, under a parol agreement to pay them a stipulated sum annually, on the first day of January, in each year, and that such letting was in pursuance of certain rules, orders…

THIS was an action of debt on a bond, dated April 22, 1816, for 3,000 dollars, conditioned to pay the sum of 1,500 dollars and interest, annually, in the manner following, viz. 100 dollars and interest on the whole sum of 1,500 dollars, in one year; 300 dollars, and interest on the whole, (that is, the principal due,) in two years ; 300 dollars and interest on the whole, in 3 years, 300 dollars and interest on the 7 v 7 e whole in 4 years, and 500 dollars and interest on the…

ASSUMPSIT for work and labour, &c. At the trial, after the plaintiff had closed his evidence, the defendant 0g-ere() jn ev¡dence two receipts, to which the name of the plaintiff was subscribed; and to prove them, called Campbell, a witness who had been sworn for the plaintiff) who being asked if he knew the handwriting, answered, that he had never seen the plaintiff write, but that he had had dealings with him, and had received promissory notes from him, which had been paid,…

<p>It is not uncitizen of this debt, ‘or^pert with &^aatüL “a”!dtheUpa}S formance Pbe mad® th® alien enemy within this state; the contract having been made be-where i?., a nazenfresiding ¡¡i hifparincí, ject"eddingin tract on the llth of Februa1812, with v., a British subject, residing in Canada for the deUveiy pLt^of^whkh prior kfth^dí ^a^ofthe isth residue afterwards, on the 30th of June. 1812, to, the agent of C^. amenace ad-within thebünfflw^that such-the°mperformf ana“ legal.</p> <p>Though a partner, as such, cannot bind his co-partner by a bond, or writing under seal, to comply with an award; yet, where an award is made pursuant to a submission so executed, by one partner, and who, afterwards, accepts the amount awarded in favour of the partnership, and endorses a receipt in full on the award, it is sufficient to bar the co-partnership claim; lor it operates either as-a release by one partner* or as an accord and satisfaction.</p>

This was an action of assumpsit, on a promissory note, tried at the Chenango Circuit, in June, 1820, before Mr. Chief Justice Spencer. The declaration was against the defendant, as the third endorser of a note made by P. Ran-7 v v dalL dated Norwich.

<p>Where a bond and warrantof attorney had been given as security for an usurious loan., and judgmen entered up on the bond, which was set aside by the Court on the application of the defendant, who, afterwards,promised to pay the original debt, or sum actually lent; in an action of as-sump sit, on this promise, it was held, that, notwithstanding the usurious security, the money actually lent remained a debt in equity and conscience, and was a suf. ficient consideration to support an express promise of repayment.</p> <p>And the defendant is not allowed to object, that though the judgment was set aside, the bond still remained valid, contrary to the decision of the Court, and his own admission; but the plaintiff is entitled to judgment on the new promise of the defendant, on stiEulating to-ring into Court, andcancel the bond and warrant of attorney, or usurious securities.</p>

THIS was a motion for mandamus to the Mayor’s Court of the city of Albany, to require and command that Court to set aside a rule, setting aside a fieri facias issued out of that Court, in favour of Thomas Trevor against Daniel T. Wendell. It appeared that the judgment was rendered the 4th day of December, 1816, on a note given on the 8th of October, 1812; and that Wendell was discharged on the 19th of June, 1817, under the insolvent act of the 12th of April, 1813.

The declaration in the Court below contained three counts. The first was on a promissory note alleged to have been made by Lemuel Holmes, Abel Wilson, and William B. Foot, in the usual form, for 450 dollars, dated September 10, 18Í6, payable in June after date, with interest.

THIS was an action of assumpsit, tried at the Albany 1 \ u circuit, in April, 1320, before Mr. Justice Woodworth. The-1 . . plaintiffs were in the business of commission merchants, and of receiving goods and produce, and freighting the same to New-York.

THIS was an action of assumpsit, on a judgment recovered against the defendants, in January, 1815, in the Court of Common Pleas of the county of Essex, in the state of New-Jersey.

THIS was an action on the case against the defendant, as sheriff, in which the plaintiff recovered less than 50 dolIsi^s damages. The defendant, therefore, by the statute, beipg entitled to costs, a motion was made that he he allowed to recover double costs.

THIS was ¡an action of ejectment brought to recover a v moiety of lot number 86, in the town of Willet. The . cause was noticed for trial at the Cortland Circuit, on the fourth of June last, when the plaintiff was nonsuited, for want of a confession of lease, entry, and ouster,

THIS was an action for false imprisonment brought against the defendant, for an act done in his office as a ° justice of the peace, in which the plaintiff, recovered ten - ^ dollars, damages. Full costs in this Court having been taxed, a motion was made for a re-taxation, on the ground ^at ^e plaintiff was not entitled to more costs than damages, or costs of the Court of Common Pleas merely.

MOTION to set aside the certiorari which had been allowed in this case, on the ground that the seal affixed to the writ had been detached from process to which it had been before affixed, and -again affixed to this writ. The affidavit of the attorney who sued out the certiorari, stated, that the -seal had been taken from a capias ad respondendum, which liad been filled up, but never delivered to the sheriff.

directing the judges of the Court of Common Pleas of Onondaga, to vacate a rule or order rhade by that Court to qtiash an Appeal filed therein, in which David Marsh was appellant, 'and Benjamin •Pearce ’respondent. It appeared that Pearce, in a suit before A justice of the peace, against Marsh, recovered a verdict for twenty-five dollars, oti Which the justice gave judgment for thirty dollars and ninety-eight cents.

HSf ERROR, on certiorari to a Justice’s Court. Pearson, 7 brought an action before the justice against B. and H. for . Jo breaking his looking-glass. The defendant B. pleaded in , ° , . , ° ° . „ 5 , ,, abatement, that he was an attorney of this Court, and that this Court was sitting, in August term, when the. summons issued against him was returnable.

A JUDGMENT was docketted in the first cause, on the 26th of November, 1817, and m the second cause, on the 28th of May, 1817, and executions issued in January, 1818. Upon the application of the defendants, the executions were withdrawn, and the attorney for the plaintiffs consented to receive certain securities, and apply the proceeds, as collected, to certain other bonds, in his hands, and the above judgments.

<p>ON the'first day of the last May tertn> the plaintiff obtained a rule to amend his declaration, by changing the venue from the county of Albany to the county of Oneida, and on the same day, being the 7th of May, delivered a notice of trial to the agent of the defendant’s attorney, in JTew-York, for the Oneida circuit, to be held on the eleventh day of June. A copy of the rule, and notice that the declarabon had been amended accordingly, was served on the agent of the defendant’s attorney, in Utica, on the 29th oj May. It appeared that the defendant resided above one hundred miles from the place of trial. The plaintiff’s attorney, pursuant to the notice of trial, proceeded and toojh an inquest by default, at the Oneida circuit.</p>

IN ERROR, on certiorari, to a Justice’s Court. The trustees of the village of Brooklyn, in the county of Kings, brought an action of debt against Udall, the plaintiff in error, to recover the penalty of twenty-five dollars, for the breach of an ordinance of the village of B. in exercising the office of a measurer of grain, for hire, &c. without being licensed by the trustees of the village.

IN ERROR, on certiorari, to a Justice’s Court. The Mayor, Aldermen, and Commonalty of the city of New-York, brought an action of debt against Stryker, before one of the assistant justices of the city of New-York, to recover a penalty of fifty dollars, for breach of an ordinance of the corporation of New-York, in acting as a public measurer of grain, within the city and county of New-York, without being licensed. The defendant demanded a trial by jury.

THIS was an action of trespass on the case, for obstruct-r 9 ing “ a certain street, or private way, called Peter-street,” -&c. tried at the New-York sittings, in December, 1819, be- „ __ _ . lrr , 7 tore Mr. J ustice Woodworth.

<p>efth'ree'execu* debtedanto the testator at the time of making his will, by contract, refused to act, and the other two proved the will, and administered. A,, afterwards, gave a bond to the two acting executors, for the amount of the debt due to the testator; and, more than a year thereafter, took upon himself the office of executor, and cancelled the bond: Held, that the bond was to be considered as given for a valuable consideration, to the other two executors, in their private capacity, the addition of \l executors,” &c. being merely words of description; that A. could not avail himself of the privilege of executor, as to this debt, and that the other executors might, therefore, maintain their action against him, and recover the amount of the bond, declaring on it as so cancelled and</p> <p>Though a creditor makes his debtor an executor of his will, yet if there are not assets sufficient to pay the debts and legacies, the executor must pay his debt.</p>

IN ERROR, to the Court of Common Pleas of the county of Queens. Foster, as supervisor of the town of Jamaica, brought an action of debt in the Court below against Rhoads, to recover the penalty of twelve dollars and fifty cents, for cutting sedge on the common lands of the town of Jamaica, contrary to a by-law made by the freeholders and inhabitants of that town.

IN ERROR, on certiorari, to the Justices’ Court of the city of New-Y ark. Kip sued Tuttlei Lane, and Davenport, on a bond taken pursuant to the eighth section of the “ act extending the jurisdiction of justices of the peace,” passed the tenth of April, 1818.

' OAKLEY, for thé defendant, moved to stay all the proceedings in this cause, on the part of the plaintiff, until the costs of the suit in the Court of Chancery had been paid.

<p>The act of the i reo, °f rdative bountym¡ands¡ «¡d not authorise a grant to a soldier who was March, 1783; so that nothing eouid pass by</p> <p>the 3d of April, 1807, (sess. 30. eh. 114.) which vests the lands patented to J. a deceased soldier, in his heirs, though aliens, in like manner as it would have descended to Iheni, if they had been citizens of this state, at the time of his death, (1781) according to the law oi>cfescents of this state, it is intended that the heirs should take according to the law of descents at -the time of passing the act; and the title of the heirs, as it respects any limitation, is to be deemed to have accrued from the time of passing the act.</p>

THIS was an action of assumpsit, brought to recover he value of a quantity of plaister stone, delivered by the ilaintiff, to the defendants, tried before Mr. Justice Van Yess, at the Cayuga circuit, in July, 1&20. The declaraion, which was entitled of January term, 1820, contained he usual counts for goods sold and delivered, and moiey accounts, and on an account stated. The defendiiii . . nts pleaded the general issue, and the statute of limita- . lOnS.

THIS was an action of assumpsit, tried at the Nem-York sittings, in December, 1819, before Mr. Justice Woodworth, The declaration contained the common money counts. The plaintiffs were the third endorsers of a promissory note, dated the 8th of July, 1816, drawn by Davison, Day, and Pierson, by which they promised to pay, sixty days after date, to the order of Israel Canfield and Co., eight hundred dollars, for value received.

THIS was an action of trespass, Szc. tried at the New-York sittings, in April, 18*20, before Mr. Chief Justice Spencer. John A. Willink and Daniel Willink were partners in jra(jej jn jVeto- York, under the firm of J. A. Willink & Co.; an(^ these two persons, and Charles Latham, composed the grm Gf £), J, A. Willink 4 Co. at Liverpool.

THE declaration in this cause contained two counts, which alleged, in substance, that the defendants were duly appointed, according to law, managers, to conduct a certain public lottery, called “ The fifth Class of the Medical Science Lottery,” and, as such, had the power to superintend the drawing of the same ; and that it thereupon became their duty respectively, before they acted as managers, to take and subscribe an oath or affirmation, well and faithfully to execute the…

IN ERROR, to the Court of Common Pleas of Otsego bunty. The plaintiff, as supervisor of the town of Cherry Halley, •ought an action ot debt against the defendants, Alien, and S id & his sureties, on a bond dated November 25,1818, for 3,301 bllars and 84 cents, conditioning that if the defendant, Allen, d, in all things, duly and faithfully execute and perform all and igular the duties of his office as collector of the town of Cherry yalley, without any fraud or delay, Slc.…

THIS was an action of debt brought by the plaintiff, as as- . • mee of a bond taken by the sheriff of the city and county of p v 'eu>-York, on permitting Mexanaer, a prisoner, mexecution, the suit of the plaintiff, to go at large within the liberties of te gaol, pursuant to the statute.

THIS was an action of assumpsit, brought against the deendant, as owner of the ship called the Ram-Dvloll-Day, to «cover the value of certain goods shipped on board of that vessel, on account of the plaintiffs, and consigned to them, on ier voyage from Calcutta to New-York, in the year 1817.— The cause was tried before Mr. Chief Justice Spencer, at the Wew-York sittings, in April, 1820.

THIS was an action on a promissory note, originally commenced in the Court of Common Pleas o‘f Otsego county. An affidavit of the non-residence of the plaintiff was filed in that court, and a rule entered requiring the plaintiff to file security for costs ; but before any security was filed, the default of the plaintiff was entered, and a judgment of nonsuit was, afterwards, perfected, with costs, amounting to thirteen dollars and sixteen cents, which remained unpaid.

TWO Justices of the peace of Laurens made an order for the removal of Elizabeth Curry and her children, as paupers, from the town of Laurens to the town of Pompey, as the place of their last legal settlement.

IN ERROR, on certiorari, to a Justice’s Court. Wag-goner declared against Deyo in the Court below, on a contract, by which the defendant agreed to take a note éxecuted by the plaintiff and John Waggoner, as his surety, to Solomon Smith, for 150 dollars, payable the 1st of May, 1820, and in consideration of five dollars, paid to the defendant, he promised to forbear the payment of the note for * * v ' nine months after the 1st of May : that the defendant did n i ., i . _ ,…

THE plaintiffs brought an action of assumpsit against the defendant, as endorser of a promissory note, made by j) Tompkins, dated the 31st of January, 1818, for se- ■ ven thousand dollars, payable sixty days after date.

SEELY moved to quash the writ of error and bill of exceptions, in this case. It appeared, that the bill-of exceplions had been presented to the Judges of the Court of C. P. individually, out of Court, and was signed and sealed by them separately, and without any notice to the opposite party, of the time of its being so signed. He cited, Sikes v. Ransom, 6 Johns. Rep. 279. Midberry v. Collins, 9 Johns. Rep. 345. 10 Johns. Rep. 312. 1 Salk. 288. Tidd’s Pr. 788.

IN ERROR, to the Court of Common Pleas of Jefferson county. It appeared, on the return of the writ of error, that the Court below arrested judgment, for the insufficiency of the declaration.

IN ERROR, on certiorari, to a Justice’s Court. Furman and others, Commissioners of the Alms House and Bride-well, in the city of Mem-Yorlc, brought an action of debt against Knapp, before a Justice, for the penalty of 25 dollars, under the “ act to lay a duty on strong and spirituous liquors, and to regulate inns and taverns,” passed the 7th of April, 1801.

<p>Where an ;nhlsldismuim, and proceeds to exercise it, this Court'has no jurisdiction to control that discretion by a writ of mandamus.</p> <p>But if subordinate public agents refuse to act, or to entertain the question for their discretion, in cases where the law enjoins upon'them to do the act required, this Court may enforce obedience to the law by a mandamus, where no other legal remedy exists.</p> <p>As where the supeiuisors of a county refuse to allow -a claim for services, a's a county'charge, this Court, if it be a legal charge, may instruct and guide the supervisors, in the execution of their duty, by a writ of mandamusf and conipel them to admit the claim as a county charge, or, in other words, set them in motion, without controlling the exercise of their judgment and discretion, as to the amount proper to be allowed.</p> <p>The Supervisors are not obliged to allow any charge for services relative to a pauptr, unless a previous order of a Justice has been obtained, or the services 'have been performed by request of the overseers of the poor, and the account presented to them for adjustment.</p>

MERRITT brought an action against L. and Z. in a juslice’s Court, under the act extending the jurisdiction of justices of the peace, (sess. 41. ch. 94.) and recovered fifty dollars. The defendants appealed to the Court of C. P. of Ulster county; and on the trial of the appeal in that Court, a verdict was found for the appellee, for less than 11 twenty-jive dollars; and the Court awarded costs to the ap- , v 1 pellantS. ,

THIS was an action of assumpsit for work and labour, anc* services done and performed, by the plaintiff for the intestate, in his life time. The defendant pleaded, non as-y . sumpsit, non assumpsit infra sex annos, actio non accrevit, &c. and plane administravit; and the plaintiff joined issue on these pleas.

THE defendant, on the 24th of December last, obtained an order of R. Riker, Esq. Recorder of the city of JVezoYork, that the plaintiff show cause before him, on the 28th of December, “ why he should not deliver to the defendant a copy or copies of all writings of the defendánt or oi Bailey 8c Willis, whereupon or whereby he seeks to charge the defendant in this suit,” &c. The plaintiff, accordingly, by his attorney, showed cause by reading the affidavit oi the attorney, that…

THIS cause was noticed for trial at the last Westchester circuit. When the cause was called on, it was put off on motion of the defendants’ counsel, on the ground of the absence °f a material witness, upon payment of costs. The costs were, afterwards, regularly taxed, and payment of the 3 70 J 7 * J bill'demanded of the defendants’ attorney, who refused to J ’ nay it. No demand oí payment was made of the defendants#

IN ERROR, on certiorari, to a Justice’s Court. Brown brought an action of trespass for taking his goods, &c. against Sellick. The defendant justified the taking under an execution issued by a Justice of the Peace on a judgment in his favour, against Brown. The facts, as they appeared on the return to the certiorari, were, that S. formerly obtained a judgment against B., in a Justice’s Court. B. was a freeholder, and had a family at the time the judgment was rendered.

S. FORD moved for a mandamus to be directed to the supervisors of the county of Herkimer, commanding them to cause to be levied on the town of Minden, in that county, the. amount of damages assessed in favour of Thomas Johnston, for a public highway over his improved land.

PALMER brought an action of trover against Wylie and others, before a justice of peace, under the “ act to extend the jurisdiction of justices of the peace,” for fifty dollars, damages. The defendants pleaded not guilty ; and demanded a jury trial. The cause was. tried, and. the jury found a verdict for the plaintiff, for 45 dollars, damages, on which the justice gave judgment, and 5 dollars costs.

<p>A prisoner ¡a execution on a judgment ob-tamed m a Justice’s courtuadel* ^ tiiP 9ct to extend the jujústices^of the Eone”i0" a" bovc 25 dollars* is entitled to be discharged on at£ Ed by the'T^th section of the recovery of value bt 25doi-not a freehold? fam,>?andhas in for than days : prison f¡^y ¿Ent !f the affidavit states that he han a family at the time, without saving , that he had1 a family, when the judgment was rendered against him.</p>

THIS was an action of assault and battery and false imprisonment, tried at the Warren circuit, in June, 1820, before Mr. Justice Platt. It was proved that the defendants, on the 9th of December, 1818, entered the plaintiff’s shop, in Caldwell, in Warren county, and arrested the plaintiff, locked him up in the gaol of that county for the night, and on the next day took him to Troy, before the Recorder of that city.

EJECTMENT for one hundred acres of land, in Victor, in Ontario county, tried before Mr. Justice Van Ness, at the Ontario circuit, in May, 1820. It was admitted, at the trial, that the common source of title was in Roswell Murray. The plaintiff produced in evidence, a mortgage from Roswell Murray to the lessors of the plaintiff, dated September 8th, 1813,-acknowledged the 11th of September, 1813, and registered the 3d of February, 1815, for 500 dollars.

THIS was a special action on the case, tried at the Orange circuit, in 1820, before Mr. Justice Woodworth. The declaration contained the usual money counts. The following facts appeared in the case, which was agreed to by the par-1 r ’ a jJ . r ties, and made subject to the opinion of the Court. In ___n „ — , r , ..

<p>IN ERROR to the Court of Common Pleas of Wash-*nEton county. Chapman brought an action of assumpsit against March in the Court below. The declaration stated, ,, , , . . 7 that the defendant, on the 1st of December, 1818, in consideration that the plaintiff would deliver to the defendant, a certain horse óf the plaintiff, of great value, in exchange for a certain horse of the defendant, the defendant undertook and promised, that the horse of the defend-an* was t^ien anc^ there sound, &c.; that the plantiff confiding the said promise of the defendant, delivered to him the sa,a horse of the plaintiff, in exchange for the defendant’s horse, &C. Yet the defendant, 8zc. fraudulently, ,&c. did not perform or regard his said promise, &tc., for that the horSe of the defendant was not sound, but, on the contrary was unsound, and had a certain disease, called the yellow wa*er) °f which he afterwards, to wit, on the second day of December, 1818, died, whereby, &c. The defendant pleaded the general issue, and on the trial of the cause, the plaintiff offered to prove, that the parties exchanged horses; that the plaintiff let the defendant have a horse ■worth one hundred dollars, in consideration of which the defendant let the plaintiff have another horse, which the defendant, at the time, represented to be sound ; that the. horse of the defendant, _ so delivered to him in exchange, was not sound, but that he had the disease, called the yellow water, which rendered him useless and of no value, and that he died the next day. The evidence so offered was objected to by the defendant’s counsel, and rejected by the Court, on the ground, that this being an action of as~ sumpsil founded on á warranty of the soundness of the horse, the plaintiff, in order to entitle himself to a recovery, was bound to prove an express warranty, and that the testimony offered by the plaintiff did not amount to such a warranty-. A bill of exceptions was taken to the opinion of the Court, on which the writ of error was brought.</p> <p>The case was submitted to the Court without argument, on a statement of the points and authorities. Pealce's Evid. 279. (229.) 3 Esp. JV*. P. Rep. 72. 2 Esp. JV\ P. Rep. 673. 3 Campb. JV". P. Rep. 556. %Rl. Com. 451. 3 El. Com. 166. 1 Moore, 109. IQ Johns. Rep. 109. 2 East, 314. 2 Caines, 48. 1 Johns. Rep. 274. 4 Johns. Rep. 421« 5 Johns. Rep. 354.</p>

THIS was an action of debt brought on a bail-bond given to the plaintiff, as sheriff of the county of Madison, on a writ , against Kern, in favour of Jehiel Tuttle, in the Court of Common Pleas. The cause was removed by habeas corPus into this Court. The declaration was in the usual form, The defendant pleaded non est factum, and comperuit ad r J 7. . f diem, prout patét per recordum.

THIS was an action of assumpsit, tried at the Albany circuit, in October, 1820, before Mr. Justice Woodworth. The declaration contained four counts: the first count was for a certain piece of land of the plaintiff before sold and released to the defendant, 8zc. 2. Quantum valebat for the same. 3. For money lent, and money paid, and money had and received, &c. 4. On an account stated. Plea non assumpsit.

THIS was an action on the case. The declaration stated, that in December, 1817, Asa Knight recovered a judgment jn the Court of Common Pleas, in the county of Cortland, 7 J 7 against one Ephraim Eddy, for 6,000 dollars of debt, &c. That in September, 1818, Henry L, Porter recovered a iude1 * * o o . o ment in the same Court against the said Eddy, for 72 dollars and 28 cents, damages, on which judgment Porter, afterwards, sued out a writ of fieri facias, which was deliver-to…

THIS was an action of assumpsit. The declaration contained two counts: the first count was against the defendants. ~ * as endorsers of a promissory note, dated the 7th of February, 1820, made by E. Throop, for 12,385 dollars, payable six-. ty-threé days after date, to the defendants, or their order, and endorsed by them. The second count was for money lent> money paid, &c. and money had and received to the use plaintiffs- The defendants pleaded : 1. Mon-assumpsit: 2.

THIS' was an action of debt' on a bond given by the defendants, on the appointment of Mills and Ludington, as guardians of the wife of the plaintiff, when she was a sole. She was the daughter of L. and being about 15 years of age, the Surrogate of Onondaga, on the 6th December, 1813, appointed L. and M. as her guardians, pursuant to the statute.

ASSUMPSIT for money had and received to the use of the plaintiff. Plea, non assumpsit, with notice of special matter to be given in evidence at the trial. • The cause was tried at the Albany circuit, in October, 1820, before Mr. Justice Woodworth. John Bishop testified, that he purchased oxen of the plaintiff, and Morris Softer, belonging to the society of Mew Lebanon Shakers, and gave the plaintiff his note for 250 dollars.

THIS was an action of assumpsit brought to recover costs, adjudged against the defendant, in an action of ejectment, in Upper Canada.

<p>IN ERROR to the Court of Common Pleas of Tonipkins county. Miller brought an action of debt against Tux-bury, in the Court below, on a bond, to which there was a condition, that if Angel Bart Hartsough (who was then applying for a discharge under the insolvent act) should, after obtaining his discharge, execute and deliver to M., his promissory note for one hundred dollars, payable in six months, with interest, then the obligation to be void, 8zc. T. pleaded, 1. Mon estfactum; 2. That H. had not been discharged according to the condition of the bond ; 3. That while the application of the insolvent was pending, and after notice was given to the creditors to appear and oppose his discharge, the plaintiff, T., pretended that he was em-i -i, i t , ployed by several creditors to oppose the discharge of H.; j\t. . ■,, . . M ^ ... and that, with a view to prevent that opposition, and in consideration that the plaintiff had promised not to appear and oppose the discharge of the defendant, he, the defendant, executed the bond, &c. Wherefore, the said bond, by such corrupt and unlawful agreement, was void in law, &c. The plaintiff replied, and took issue on the first plea, and 1 1 * 7 specially, to the second plea, tendering issue, in which the defendant joined; and he demurred to the third plea, and the defendant joined in demurrer. The Court below gave judgment for the plaintiff on the demurrer, and awarded a venire to try the issues, which were, in fact, tried at the same term, and a verdict for the plaintiff on both, but the jury assessed ho damages, no breaches having then been assigned by the plaintiff. Breaches were, afterwards, assigned* and a writ of inquiry of damages awarded, and an inquisition returned, by which the damages were assessed at 111 dollars and 82 cents; and the Court, thereupon, gave judgment for the plaintiff, for the debt and damages.</p> <p>On return to the writ of error, the cause was submitted to the Court, without argument.</p>

<p>DEBT against the defendant, late sheriff of Genesee, for the escape of William White, tried at the Genesee circuit, on the 6th of July, 1821, before Mr. Justice Yates. The defendant pleaded the general issue,and specially, that the escape did not happen within one year next before the commencement of the suit, with notice of evidence to be given at the trial, that if W. did escape, See. it was by the leave and consent of the plaintiffs. There was a replication to the special plea and issue.</p> <p>The plaintiff gave in evidence, the record of a judgment and execution, in favor of the plaintiffs, against W. While, and W. Church, returned February 26th, 1819, cepi cor- „ pUS) QfCe</p> <p>A. Lawrence, a witness, testified, that on Friday, the 26th of February, 1819, S. Close, one of the deputies of the defendant, came to the house of the witness, in Ridgway, (a considerable distance from the county gaol,) with . . , . . J ° y White m his custody, with a view to engage the witness to be answerable for the appearance of While, within a given time, at the gaol. The witness made the engagement, and While and the deputy left his house, and the .witness, on the next Sunday, saw Whitef at large, in Ridgway, without any officer. Close, the deputy, testified that he went with H. Ely, one of the plaintiffs, at his request, to the place of While’s residence, about forty miles distant; that he 7AT-I7 , i , — . _ Jett My at a tavern, and went and served the ca. sa.: That W. asked if he could not have some indulgence, on account of the distressed situation of his family. The witness answered, that he was not so authorized, but that the plaintiff, E. was at the tavern, and they both went to him. E. said, that he did not wish to distress W. hut to prevent . 1 him from putting away his property, and was willing: to i . -ii -i. , i ./>. , i have him indulged two or three days, if it did not miure J or hazard the debt; and if the delay did not give him time. to put away his property, he was willing to indulge him. E. then gave to the witness, in presence of W. the follow-ing writing, “ Mr. S. Close, sir, as you have in custody Dr. William White, on a ca sa., H. Ely, and Co. v. W. White, and H. Church, we wish you to show him as much indulgence as can be shown, with safety to yourself, and without hazarding in any way the debt. For any indulgence which shall go to hazard the debt, we must consider you as responsible. Yours sincerely, H. Ely. Oak Orchard, February 26th, 1819.’’ It appeared that the deputy asked White for security, that he would go to gaol on Monday, and they went to Lawrence’s house, as above stated, and L. engaged to produce W. at Batavia, on Monday after, and on that day W. was there.</p> <p>White testified, that his situation was not altered by the indulgence shown to him: that, at the time of his arrest on the ca. sa., he asked Ely if it was essential that he should be taken away immediately, and Ely said that it was not necessary. That he remained within the gaol liberties a year and a half; the present suit was brought on the 24th of February, 1820.</p> <p>The plaintiff’s counsel objected to any oral testimony of the conversations between Ely and Close, and between Ely and White, as it appeared that they had resulted in the writing which had been produced, and the testimony was received, subject to this objection. The jury found a verdict for the plaintiffs, for the amount of their debt, 712 dollars and 27 cents, and for 22 dollars and 85 cents damages, subject to the opinion of the Court, on a case.</p> <p>The defendant’s counsel objected to the verdict being taken, subject to the opinion of the Court, and particularly to any verdict for interest. The amount of the interest was proved by a witness, who was, afterwards, proved to be incompetent.</p>

THIS was an action of tresspass, and assault and battery, *■ 7 J 3 tried at the Jefferson circuit, on the 22d of June, 1821, before nrr-rif Mr. Justice Platt. The plaintiff was an attorney at law, at Sacketts Harbour, and the defendant a post captain in the navy of the United States, stationed at that place.

The bank sued Chapman on a promissory note, mat^e by him the 26th of April, 1819, by which he promised *-° pay *° Daniel Holloway, or order, the sum of one hun^red dollars, at the Jefferson County Bank, ninety days after date. The defendant pleaded non assumpsit, with notice of á set-off.

<p>EJECTMENT for land in Onondaga, tried before Mr. Justice Yates, at the Onondaga circuit, in June, 1821. The lessor of the plaintiff proved a title under Abijah Earl, for a lot of 60 acres, by a deed to him, dated 3d of March, 1801, duly recorded on the same day, and that the defendant was in possession of six acres of the land. The defendant proved a mortgage from Curtis to Earl, dated March, 1801, of the whole lot to secure payment to the state of 405 dollars and 62 cents, and to indemnify Earl. Also, a deed from Earl to the defendant for the premises in question, dated 5th of June, 1804. A verdict was taken for the plaintiff, subject to the opinion of the Court, on a case, which was submitted to the Court, without argument</p>

THIS was an action of assumpsit, tried at the Chenango circuit, in June, 1821, before Mr. Justice Van Mss. The declaration was of the term of August, 1819, against JohnG.

Pleas of Washington county. Moor brought an action for work and labour, &c. against Reab, in a Justice’s Court, and claimed fifty dollars.

THIS was an action of assumpsit on a promissory note, dated July 12, 1817, made by the defendant, for two hun¿re(j ¡Jotlars, payable to Obadiah Ford, or bearer, on the 5th day of February, 1818, with interest. The cause was tried at the Ontario circuit, in June, 1821, before Mr. Justice Yates. The plaintiff proved the transfer of the note to one 1 1 # Vanderbilt, on the 16th of April, 1818, and by Vanderbilt to him, soon after.

<p>Where a person is bound to do a certain act, the omission of which would be a culpable neglect of duty, the perform? anee of it will be presumed» unless the contrary is</p> <p>As where an execution against C. was delivered to a deputy sheriff) in December, returnable the third Tuesduy of February following, ana in March, C. sold a pair of horses or which he was in possession, when the execution was delivered, and until its return day; the deputy sheriff, afterwards, took and sold the horses at the sheriffs sale, under the execution ; Heldy in an action of trespass brought against the officer, by the purchaser ofC. that, in the absence of any positive proof, it was fairly to be presumed, from the circumstances, 'that a levy had been lawfully made by the officer, before the return day of the execution.</p>

THIS was an action for a libel. The declaration contained three counts. The first count stated, that the plaintiff now is, and at the time of writing, printing, and publishing, &c., and for a long time before had been, one of the Judges of the Supreme Court, and, as such, one of the Council of Revision, &tc.

IN ERROR, on certiorari, to the Justices’ Court in the e 7 city of New-York. This was an action for an assault and , battery, and false imprisonment, brought by Parks against King, in the Justices’ Court of the city of New-York, commonly called the Marine Court. Parks was a seaman on board the brig The Two Marys, in October, 1818, and signed the shipping articles. King was the master of the brig, bound on a voyage from New-York to Charleston, and thence to Havre de Grace.

THESE were cross motions for writs of mandamus to the defendant, as sheriff of the county of Steuben. There was a judgment in the Court of C. P. of Steuben county, in favour of Thomas McKean, against the heirs of John Mulhollen deceased, on a scire facias to revive a judgment, docketted in February, 1807.

<p>IN ERROR, on certiorari, to the Justices’ Court in the city of New-York. Swan sued Guille in the Justice’s Court, in an action of trespass, for entering his close, and treading down his roots and vegetables, &c. in a garden in the city of Naw-Y orle. The facts were, that Guille ascended in a balloon in the vincinity of Swan’s garden, and descended into his garden. When he descended, his body was hanging out of the car of the balloon in a very perilous situation, and he called to a person at work in Swan’s field, to help him, in a voice audible to the pursuing crowd. After the balloon descended, it dragged along over potatoes ai about thirty feet, when Guílle was taken out. was about fifteen dollars, but the crowd The balloon was carried to a barn at the farther end of the premises. When the balloon descended, more than two hundred persons broke into Swan’s garden through the fences, and came on his premises, beating down his vegetables and flowers. The damage done by Guille, with his balloon, did much more. The plaintiff’s damages, in all, amounted to ninety dollars. It was contended before the Justice, that Guille was answerable only for the damage done by himself, and not for the damage done by the crowd. The Justice was of the opinion, and so instructed the jury, that the defendant was answerable for all the damages done to the plaintiff. The jury, accordingly, found a verdict for him, for .90 dollars, on which the judgment was given, and for costs.</p> <p>The cause was submitted to the Court on the return, with 1-, the briels ol the counsel, stating the points and authorities.</p>

IN ERROR, on certiorari, to a Justice’s Court. Snyder sued Coon before the Justice, and, after issue joined, Coon required an adjournment, and gave security. He demanded a venire, which was issued and delivered to him. On the day appointed for the trial, Coon did not appear, nor was the venire returned, nor did a jury appear. The Justice proceeded to try the cause, and gave judgment for the plaintiff below.

IN ERROR, on certiorari, to a Justice’s Court. Howell sued Wells before the Justice, and declared against him, for that his ( Wells'1) horse had entered the plaintiff’s field, and destroyed the grass, &c. there, to his damage of ten dollars. Wells pleaded, that there was no fence around the field, when the damage was done, and admitted the trespass and the amount of damage: Hozoell demurred to the plea.

EJECTMENT tried at the Albany circuit, on the 12th of ^Pr>-h 1821, before the Chief Justice. At the trial, to supPor*: ^e plaintiff’s title, the counsel offered a will of Amie Grange, dated the 28th of January, 1796, To prove the execution of the will, the plaintiff’s counsel called John v 1 Jv.

IN ERROR, on certiorari, to a Justice’s Court. Bell sued Bowen before the Justice, by a summons, which was personally served. On tile return day of the summons Bowen did not appear. The plaintiff stated his cause of action to the Justice, but being unprepared to prove it, asked for an adjournment of the cause for six days, which was granted. At the day to which the cause was adjourned, the defendant appeared, and tendeied a plea to the action.

THE defendants in error brought an action in the Supreme Court, against the plaintiff in error, as endorser of a promissory note, dated Albany, 17th of April, 1817, made by James Kane, for twenty-five hundred dollars, payable to John Woodworth or order, sixty days after date, for value received. The note was endorsed by J. W., and by John Kane.

<p>Assumpsit for money had and received, does not lie against two defendants, without showing a joint contract, or that both received the money.</p> <p>Where S. being indebted to M.,G.,D.,&K, severally, confessed a judgment to them jointly,tosecure their respective debts, and the Eroperty of S' avmgbeensold underan executionissuedonthe judgment, and theproceeds,being less than the ‘ amount of all the debts, G., IX,& K, divided the money between them, to the exclusion of M.; and Held that M tain an action for money had and received against G.; D., & K., jointly, to recover the proceeds of the sale of the property of 5. under the judgment and execution. ► could not main-his proportion of</p>

This cause was originally commenced in a Justice’s Court, and removed to the Supreme Court, by certiorari.

For the facts in this case, and the opinion of the Court below, see the re-1 * 3 port of the same case in vol. 18. p. 81—87.

WOODS, for the defendant in error, on a certificate of the clerk of this Court, that no transcript of the record had been returned or filed, moved {January 28th) that the writ of error be dismissed with costs. The Chancellor observed, that as nearly a month had , 1 • .1 • - „ _ J , elapsed since the session ot the Court commenced, he was inclined to grant the motion ; but the question was, whether notice of rhe motion ought not to have been given to the plaintiff in error.

TJLCOT, (A. G.) moved to put off the argument of this cause until the next week, on the ground that he was engaged as counsel in the District Court of the United States, now sitting.

The bill,, filed the 24th of April, 1819, stated, that the appellant, being possessed of a piece of land on Wappinger’s Creek, in Poughkeepsie, on which he had erected a cotton manufactory, with 912. spindles, and finding that the factory demanded greater funds than he could conveniently command, proposed to the respondent, George Bloom,, and others, to unite with him in a corporation, to be called “ The Dutchess Cotton Manufactorythe stocks of which were to be divided into…

The respondents, on the 29th of September, J 820, filed their bill in the Court of Chancery against the appellant, and the President and Directors of the Middle District Bank.

<p>APPEAL from the Court of Chancery.</p> <p>On-the 19th of October, 1819, the respondents filed their hill in the Court of Chancery, against the appellants, in which they stated, that the appellant, Josephus B. Stuart, an(] oae Gilbert Stewart, being, previous to the 24th of 7 07 r March, 1819, indebted to the respondents in large sums of money, on notes then in their banking house, either as drawers or endorsers, a negotiation took place between the said Gilbert and Josephus B. Stuart, and the respondents) for an additional loan of 6,500 dollars; and the respondents thereupon agreed to loan to the said Gilbert Stewart an(] Josephus B. Stuart, for a reasonable time, the sum of * 7 7 6,500 dollars, on condition that satisfactory collateral se.cu7 .. ritv should he given for the said 6.500 dollars, and such , . , . , z • i • i notes as were then in the. bank, (staling the same particularly,) amounting to 2,854 dollars and 69 cents, and also collateral security for all such notes as should be given in renewal or continuance of the above notes, and for any debts which m’aht be due to the respondents, from either of the appelJants, within six months from the 24th of March, 1819. 7 e . That J. B. Se, being, or pretending to be seised of a certain ° . , farm of land, situate in the town of Manlius, in the county of Onondaga, (describing the same particularly by metes and bounds,) together with Ann his wife, thereupon gave and executed a mortgage to the respondents, to secure the payment of 10,000 dollars on demand; and that at the time of the execution and delivery of the mortgage, G. S. made his two promissory notes, the one for 5,000 dollars, and the other for 1,500 dollars, which were severally endorsed by J. B, S.; and that, at the same time, G. S., and J. B. S., exéeuted a bond to the respondents, in the penal sum of 20 000 dollars, conditioned to pay them 10,000 dollars, on demand. That at the time the respondents received the mortgage and bond, Thomas W. Olcott, their cashier and agent, gave to J. B. S. a receipt in writing, acknowledging the receipt-of the bond and mortgage as collateral security for the payment of the following debts due from G. S., viz. A note due the 8th of April, for 350 dollars; one due the 26th of April, for 2,000 dollars; one due the 3d of May, for 106 dollars and 70 cents; one due the 24th of May, for 397 dollars and 94 cents; one due the 16th of June, for I, 500 dollars ; and another due the 22d of July, for 5,000 dollars; and also as collateral security for all and singular the responsibilities of G. S., or J. B. >S., or either of them, or for any note or notes given in renewal or continuance of the above-mentioned notes, or for any debts which might be owing to the respondents, and be chargeable to G. S. and J. B. S., or either of them, within six months from the 24th of March, 1819, which receipt the appellant; J. B. S., received as a sufficiently satisfactory and explicit acknowledgment of the purposes and object for which the mortgage and* bond were, in fact, given ; that the whole sum due the respondents, and for which the mortgage was given-as collateral security^exceedcd the sum of 9,520 dollars ; and that G. S. had become insolvent. The bill then prayed, that it might be referred to one of the Masters of the Court of Chancery, to take an account of what is due the respondents on the bond and mortgage, and the appellants be decreed to pay the same with costs, and that in default thereof, they be forever barred and foreclosed from any equity of redemption, and for such other and further relief as the nature of the case should require. The bill asked for a discovery. by special interrogatories, which extended to every material subject in controversy between the parties.</p> <p>The appellants, on the 28th of February, 1820. filed their joint and several answer-, in which they admitted, that previous to ti e 24th o( March, 1819, J. B. S. had endorsed several promissory notes drawn by (?. S., and which were discounted at the banking house of the respondents, for the sole benefit of G. S., the exact amount of which they did not recollect, and could not, therefore, state. The appellant, J. B. S-, denied that he ever entered into, or had any negotiation, separately, or in conjunction with G. S., with the respondents, for an additional loan of 6,500 dollars, or that he ever made any agreement, either separately, or in conjunction with G. S., with the respondents, for the loan of the said sum of 6,500 dollars, or for the payment of the several sums of money on certain promissory notes, or for giving collateral securities for any debts due to the respondents, either by G. S. or the appellant, as set forth in the bill of the respondents.</p> <p>That on or about the 18 th of March, 1819, the appellant, J. B. S,, was informed by G, S. (hat the respondents would loan to G. S. 1,500 dollars in current money, and 5,000 dollars in the notes of the Bank of Niagara, on condition that G. S. would procure the appellants to give a mortgage on a certain farm, mills, distillery, .and other buildings, situate in the town of Manlius, in the county of .Onondaga, with a bond executed by G. S., and J. B. S., conditioned for the payment of 10,000 dollars, as collateral security for the payment of the 6,500 dollars, and also for the payment of several sums of money then due on promissory notes to the respondents, drawn by &1. S., and endorsed by J. Bi 5Ú, the particular amount of which he does not recollect, and cannot state; and that, in consequence of that information, and at the particular instance and solicitation, and for the sole benefit of G. S., and without any previous agreement or understanding with the respondents, the appellants did, on the 24th of March, 1819, execute a mortgage to the respondents of the farm, mills, distillery, and other buildings, for securing the payment of 10,000 dollars on demand, and at the same time the appellant, J. B. S., endorsed two promissory notes drawn by G. S., the one for 5 000 dollars, and the other for 1,500 dollars, and, also, at the same time, together with G. S., executed a bond to the respondents in the penal sum of 20.000 dollars, conditioned for the payment of 10 000 dollars on demand.</p> <p>That after the mortgage was executed-and delivered to the e ° respondents, Thomas W. Olcott, named in the respondents’ bill, handed to the appellant, or to G. S., and which this appellant did not recollect, a receipt or memorandum in writing, which was retained by G. S'., since which this appellant had not seen it, and could not state the contents thereof.</p> <p>To this part of the answer of the appellants, the respondents took exception : “ For that the defendants have not, in manner aforesaid answered, whether the receipt admitted in the defendant’s answer to have been given by Thomas W. Olcott, was not received by the defendant, J. B. S., as a sufficiently satisfactory and explicit acknowledgment of the purposes and object for which the said mortgage and bond were in fact given.” As to that exception, the appellant, in his further answer, “ denied, that the receipt set forth in the respondents’ bill, or any other writing, was accepted by him as a sufficiently satisfactory and explicit acknowledgment of the. purposes and object for which the said mortgage and bond were executed.”</p> <p>The answer further stated, that at the time that J. B. S. agreed with G- S. to mortgage the premises in question, it was expressly agreed between the appellant and G. S., that the bond and mortgage were to be considered security no longer ■ than four months from the dale thereof, which G. S., at that time stated was the agreement between him and the respondents, and that the appellants executed the bond and mortgage as collateral security, in pursuance of such agreement. That the receipt given by Thomas W. Olcott was not delivered to G. S.. or to the appellant, until several days after the delivery of the bond and mortgage to the respondents, and when the same was delivered, containing the stipulation that the bond and mortgage should remain as security for six months, instead of four months, as agreed betiveen the appellant and G?. S., the appellant, at the time he first saw the said writing, objected to the extension of the time for which the said bond and mortgage were to remain security, from finir to six months, as contrary to the original agreement, and so expressed his dissent to Thomas W. Olcott, and G. S.</p> <p>That the note dated the 23d of March, 1819, drawn by (?. g,, and endorsed by the appellant, for the sum of 5,000 dollars, was for that amount received by G. S., of the respondents, in the bills or notes of the Bank of Niagara, and which bank notes were, at the time the same were so received by G. S., at from twenty-five to fifty per cent, discount; that G. S., immediately after the receiving the notes of the Bank of Niagara from the respondents, endeavoured to sell the same to the brokers and others in the city of Albany, at a discount, but could not succeed in selling them at any rate of discount. That about the 2d of April, 1819, the appellant received from G. S. 4,000 dollars of the bills of the Bank of Niagara, for the purpose of selling the same to the best advantage for G. S., the appellant then being about to depart from the city of Albany to Buffalo. That he afterwards sold the same bills or notes of the Bank of Niagara, at an average loss or discount of forty per cent, for money current in the state of New-York, making the real value of the 4,000 dollars of the bills or notes of the Bank of Niagara, received by the appellant, for G. S., in current bills or money, 2,400 dollars.</p> <p>The appellants, by way of plea, alleged and insisted, that from information which they had received, and which they believed to be true, it was corruptly agreed by and between G. S. and the respondents, that in consideration of the respondents’ loaning to the said G. S. 1,500 dollars current money of the state of New-York, G. S. should purchase of the respondents, at par, 5,000 dollars of the bank notes oí the Bank of Niagara, when, in fact, and in truth, the said 5,000 dollars of the Niagara banlc notes were not worth 3,000 dollars in current money of the state of New-York. That the respondents did loan to G. S. the sum of 1,500 dollars current money, upon the conditions aforesaid ; and that' G. S. did purchase the 5,000 dollars of the notes oí the Bank of Niagara, and for the security of which, to the amount of 6,500 dollars, and the promissory notes then in the banking house of the respondents, endorsed by the appellant for G. S., the mortgage mentioned in the respondents’ bill of complaint was executed as collateral security.</p> <p>The respondents having filed their replication, the cause was put at issue, and witnesses were examined on both sides. The material parts of their testimony are stated in the opinion delivered by the Chief Justice.</p> <p>The cause was brought to a hearing in the Court of Chancery, in March, 1821; and on the 3d of May, 1821, the Chancellor pronounced the following decree :</p> <p>“ This cause having been brought to a hearing, at the last term of this Court, upon the pleadings and proofs, and upon the opening of the case, the Chancellor suggested, that he was a stockholder in the Mechanics’ and Farmers’ Bank; and that it might be doubted whether he had jurisdiction in the case, inasmuch as the statute declares, “ that where the Chancellor shall be a party to a suit in Chancery, the bill shall be filed before the Chief Justice of the state,’’ and that he proposed only to hear the argument provisionally, subject to the advice of the Chief Justice in the premises; and the counsel on each side consenting thereto, the cause was thereupon argued by Mr. Theodore Sedgwick and Mr. H. Bleecker, counsel for the plaintiffs, and by Mr. Philip S. Parker, and Mr. Abraham Van Vechten, counsel for the defendants ; and upon subsequent consultation with the Chief Justice, he was of opinion, that the Chancellor was not a party to the suit, within the provision of the statute, and that the Chancellor had the exclusive jurisdiction of the case in Chancery ; and the Chancellor concurring with the Chief Justice in that opinion, and that he could not rightfully decline cognizance of the case, the pleadings and proofs being thereupon duly considered, it is declared, that the renewal of the note for 1,500, and the.note for 5,000 dollars, in the pleadings mentioned, by G. S. as drawer, and by the defendant, J. B. S., as endorser, were not, under the circumstances of the case, a discharge of the defendant, J. B. S., from the obligation of the bond in the pleadings mentioned, executed by him, and the said G. S., to the plaintiffs, nor any discharge of the defendants, J. B. S., and Ann., his wife, from the obligation of the mortgage in the pleadings also1 mentioned, given to secure the payment of the said' bond. And it is further declared, that the loan from the plaintiffs to G. S., on the 24th of March, 1819, of 6,500 dollars, as stated in the pleadings, "and appearing in the proofs, was not an usurious or corrupt loan, within the 1 . 1 . ’ , meaning of, and contrary to the statute, entitled, “An act for preventing usury.” It is, thereupon, ordered, adjudged, and decreed, and his Honour the Chancellor, by the authority of this Court, doth order, adjudge, and decree, that it be referred to one of the Masters of this Court, to ascertain and report the amount of principal and interest due to the plaintiffs from G. S-, or from the defendant, J. B. S., and secured by the bond and mortgage aforesaid; and upon the coming in and confirmation of the Master’s report, «that the defendant, J. B. S., pay the amount so to be reported, together with the costs of this suit, as against him, and the defendant, and Ann, his wife, within thirty days thereafter, or that all and singular the mortgaged premises included in the said mortgage, and which premises arc described in said mortgage, or so much thereof as shall be necessary to raise the said principal, interest and costs, and which can be sold separately, and without material injury to the parties, or either of them, be sold by one' of the Masters of this Court in the county of Onondaga, he giving six weeks notice of the time and place of sale, in one or more of the public newspapers printed in the said county, and causing a copy of the notice to be affixed upon the outward door of the courthouse of the said county. And it is further ordered, that the said Master making such sale, execute to the purchaser or purchasers of the said premises, a good and sufficient deed or deeds of conveyance for the same, and bring the moneys arising from the said sale into this Court, and deposit the same with the register or assistant register of this Court; and that he make report to this Court of his proceedings in the premises, with all convenient speed. And it is further ordered, that the said register or assistant register, out of the said moneys so to be deposited, pay to thq plaintiffs’ solicitor their costs of this suit, as against the defendants, J, B. S., and Ann, his wife, to be taxed, and also the amount of principal and interest which shall be reported due to the plaintiffs as aforesaid, with the lawful interest thereon, and the residue of said proceeds, if any, to remain in Court, subject to the order thereof. And it is further ordered, that the bill, as to the defendant, Nathan Stewart, be dismissed, with the costs of the said Nathan Stewart, to fae taxed and paid by the plaintiffs.”</p> <p>Frbm this decree the defendants below appealed to this Court.</p>

The bill filed the 28th of September, 1818, stated, that A. Dayton, R. Wheeler, W. Raymond, Jun., Nathan II.