Volume 19 — Wendell's New York Reports

<p>Motion under the act to abolish imprisonment, Statutes, sess. of 1831, p. 396, § 1, 2, to be discharged from arrest, and that the bail bond given to the sheriff by the defendant be delivered up to be cancelled. In May, 1836, the defendant, a citizen and resident of this state, purchased a large amount of merchandize in the city of New-York, telling the merchants from whom the goods were purchased, that he was going to Milwaukie in the territory of Wisconsin, and that he intended to establish himself there as a merchant, and to make that place his future residence. He accordingly went to Milwaukie, took his goods with him and established himself in business there, leaving, however, his wife and child at board at his former residence in this state. He continue^ in business at Milwaukie, personally attending to it until March last, when he returned to his former residence on a visit, and remained until May, when he was arrested in this suit and held to bail. Since his arrest he has returned to Milwaukie and is still engaged in conducting his business there. In December last he was appointed by the legislature of the territory of Wisconsin a commissioner to receive subscriptions and distribute the stock of a bank, and he was also appointed a director of the same; which offices it is fairly to be inferred were accepted by jjjm> The defendant produced the affidavits of several of his intimate friends and acquaintances, persons familiar with his views and purposes, who state that when he went to Milwaukie he had no fixed purpose to make that place his permanent residence or abode, unless he was successful in business ; that he had not been successful as he had repeatedly alleged, and that he intended to break up as soon as he could close his business and return to his former residence, with purposes uncertain, however, as to his future course.</p>

<p>Habeas corpus in the case of á minor child, on the question of its custody, as between the parents. The mother in this case had withdrawn herself from- the protection of her husband and went to reside in (he house of her faiher, and took with her an infant child; to obtain the custody of which the father sued out a habeas corpus. ' On the return of the writ numerous • affidavits were produced on both sides, and after hearing counsel, the following opinion was delivered :</p>

Report of referees. This was an action on the case, for injuries done to a scow of the plaintiff,, by the steamboat of the defendants coming in collision with it. The cause was referred to a single referee, who made a report in favor of the plaintiff, upon which a rule for judgment was entered. A motion was made to set aside the report, and to vacate the rule for judgment as irregularly entered.

Motions for consolidation. On these motions, several points of practice were settled, which will be sufficiently understood without any further statement of facts, than that contained in the opinion of the court.

<p>Where there are three defendants, one of whom suffers a default, and the others plead to issue, and on the trial prove payment of the plaintiff’s demand, the jury have no right to assess damages against the other defendant.</p>

<p>In a suit against the corporation, where there is no presiding officer, cashier, secretary or treasurer, service of the summons upon any oilier officer of the corporation will be approved by the court, and a rule to plead ordered to be entered.</p>

moved to quash the writ of summons issued and served in each of these suits, on the ground that the process was not in the proper form. By the writ the sheriff was commanded to summon the defendants to answer the plaintiff, “of a plea of trespass on the case upon promises,' to his damage of one hundred and ten dollars.” There was no further statement of the cause of action.

<p>District attorneys can be legally appointed, only when the court of common pleas and the court of general sessions of the county for which the appointment is made, are both holden for the transaction of business.</p> <p>The appointment, however, can be made only when the county courts are holden by those judges of the courts, who receive their commissions from the senate, on the nomination of the governor, and who held their offices for the term of five years ; justices of the peace, or other officers who may be associated with the judges in holding a court of general sessions, have no right to participate in the exercise of the power of appointment.</p>

<p>This was a motion to set aside an election of directors of the Long Island Rail Road Company. The grounds of the motion, are detailed in the opinion delivered by the chief justice. The motion was argued by</p>

Attachment against foreign corporation. On the twelfth day of July, 1837, during the July term of the supreme court, and whilst the court was in actual session an attachment was allowed and issued by a supreme court commissioner at the instance of the plaintiff, commanding the sheriff of Cayuga to attach and safely keep all the estate real and personal of the Hartford Fire Insurance Company in his bailiwick, that he make and return an inventory of the property so seized,…

Costs in suits by town and county officers. The plaintiffs brought a suit in a justice’s court against the defendant to recover the penalty prescribed by statute, for selling spirituous liquors without license.

Mandamus. By an act of the legislature, passed 25lh May, 1836, the relators were appointed commissioners to lay out a public highway “ from the village of Earlville, in the counties of Madison and' Chenango, on the most direct and eligible route, commencing at or near the said village of Earlville, running in a southwesterly direction, and terminating at some proper point in the present road, at or near the house now occupied by Hazard Wilcox, junior.” The act authorized the…

This was a motion for a mandamus, to the superior court of the city of New-York, commanding them to vacate a rule setting aside a report of referees; or to render judgment, so that the relator may bring a writ of error.

A writ of alternative mandamus having issued, commanding the Tioga C. P. to vacate a rule between Jesse Thomas, plaintiff, and James Lounsberry, defendant, denying a motion made to vacate the entry of satisfaction acknowledged by Thomas and to grant the motion: the common pleas returned, that at the July term, 1836, of that court, Thomas recovered a verdict of -$550 damages against Lounsberry in an action on the case for debauching the plaintiff’s servant, and that judgment…

Mandamus. Luther, a deputy sheriff of Onondaga county, by virtue of an execution in favor of Lightbody and Wright against one Marshall, levied upon personal property in the possession of the defendant to an amount sufficient to satisfy the execution, but left the property in the possession of Marshall. The levy was made in February, 1832. In May following Marshall removed the property from the county.

A scire facias quare executionem non having been issued in this cause and duly returned, the plaintiff entered a rule to plead and posted notice of the same in the clerk’s office. After the entry of the rule, but on the same day, the plaintiffss attorney was served with notice from an attorney that he was retained to defend the suit on* the scire facias.

Re taxation of costs. On a motion for judgment as in case of nonsuit, the plaintiffs obtained leave to stipulate, on payment of costs, for not trying the causes pursuant to notice, and costs of motion. Two of the suits were defended by a firm composed of two attorneys, and the third by another attorney.

Motion to set aside an order of reference made at the circuit. The cause was noticed for trial and was on the circuit calendar; before it was reached in the regular order of calling the calendar, on the ex parte application of the plaintiffs and without notice to the defendants, the circuit judge made an order for its reference. The defendants now moved to set aside the order of reference.

Redemption by judgment creditor. A motion was made in this case for a mandamus, requiring the sheriff to execute to the relator a deed of certain premises, to which he claimed to be entitled as a redeeming creditor. Two objections were interposed: 1. That the same premises had been subsequently redeemed by another creditor ; and 2. That the relator had not exhibited to the sheriff the proper evidence of the judgment under which he claimed to redeem.

On the 24th March, 1836, the plaintiff, by virtue of a bond and warrant of attorney, perfected a judgment against the defendants for $30,000 of debt, besides costs. The judgment record and other papers were filed in the office of the clerk of this court at Utica, and the judgment was docketed on the same day; but by mistake „of the clerk, only $3,000 was entered in the docket as the amount of the debt recovered.

for the defendant, moved for judgment as in case of nonsuit for not proceeding to trial pursúant to stipulation at the last Saratoga circuit. for the plaintiff, asked leave to discontinue without costs, on the ground that the defendant was insolvent, and had been convicted, and was now in the state prison for grand larceny. He cited Lackey v. McDonald, 1 Caines, 116. Stevens proposed to give security for the payment of costs and mense profits, in case the plaintiff recovered.

Rule to declare. In July, the plaintiff’s attorney was served with a notice of a rule to declare before the end of the next succeeding term, or that judgment of discontinuance would be entered against him. The plaintiff not having served a declaration, the defendant on the tenth day of November entered his default, the October term having been adjourned sine die on the seventh day of November.

The defendant put in a general demurrer to the declaration. The plaintiff’s attorney supposing, that under the 88th general rule of this court, the defendant should have specified the objections in matters of substance as well as form upon which he intended to rely, treated the demurrer as a nullity, entered the defendant’s default for not pleading, and gave notice of assessment. The defendant moved to set aside the default.

Leave to discontinue. The defendant was sued as the endorser of a promissory note. He pleaded in bar a judgment on the same note against the maker, the issuing of an execution, and a levy upon property to an amount sufficient to satisfy the plaintiffs. Subsequently the maker paid the debt, and thereupon the defendant pleaded such payment puis darrein, and entered the plaintiff’s default for not replying to such latter plea.

Motion to set aside summons because tested in the third Feb. 1838. week of term, and because the si te fecerit securum clause was omitted. The writ was tested on the third Monday of January, 1838, returnable on the thirteenth day of January instant. The plaintiff asked leave to amend. The right to amend an original writ was denied.

A suit was commenced by the relator against the North River Bank, in the city of New-York, during the general suspension of specie payments by the banks of this state ; and on the application of the defendants, the superior court of the city of New-York, in which the suit was prosecuted, made an order that the defendants have leave to pay into court the debt demanded, for the benefit of the plaintiff, and that the suit be discontinued without costs.

F. C. White moved for a mandamus to the board of supervisors of Oneida, requiring them to settle and liquidate, and cause to be levied and collected, the damages which the relators had sustained by the laying out of a public highway in the town -of Marcy adjoining their lands. The road was wholly on the land of other persons, but ran along by the side of the land of the relators, which they keep enclosed.

Attorney appearing without authority. A motion was made in this case to set aside an execution, and for a perpetual stay. An action of replevin was prosecuted by an attorney of this court in the name of the plaintiff without his authority; and judgment having been rendered for the defendant, an execution for the damages and costs was issued against the plaintiff and levied upon his property, which was the first notice he had of the suit.

Interest on verdict. The plaintiff obtained a verdict in an action of trover, but was delayed in entering judgment by a case made by the defendants for a new trial. In the taxation of costs, interest was allowed by the taxing officer from the time of the verdict; and on this ground a motion was made for relaxation.

<p>Motion for mandamus. An action was commenced in the superior court of the city of New-York, on a bond made by Solengen & Tryon to the relator, bearing date 30th April, j 836, in the penal sum of $30,000, conditioned to pay $15,000 on or before 1st May, 1841, with interest at 6 per cent., payable half yearly, on the first days of November and May in-each year. It was further agreed, that “ in case of default of payment of the interest at any one of the several days and times, in which the same is limited to become due and payable, then and in such case the whole of the said principle sum above mentioned with the interest unpaid thereon shall become due and payable, and the above obligation shall remain in full force.” The half year’s interest that fell due 1st May, 1837, remaining unpaid, this suit was instituted the next day. On the 20th May, a tender of interest and costs was made to the plaintiff and refused, on the ground that the whole principal had become due. A motion was subsequently made for leave to bring the money tendered into court, and for discontinuance of the suit, which was granted. An alternative mandamus having been heretofore allowed, a return was made thereto, and on the coming in thereof, a peremptory mandamus was asked for by the relator. The motion was argued by</p>

<p>Motion by defendant to set aside a judgment entered upon a report of referees in an action of trover. The action was brought for a number of promissory notes. Plea not guilty. After issue joined, the attorneys for the parties entered into a written stipulation as follows: “ This cause being one which upon the trial thereof will involve the examination of long accounts, therefore it is stipulated and agreed by and between the attorneys for the respective parties as follows, that is to say ; this cause shall be referred to three persons residing in or out of the county of Ulster, [the county where the venue was laid,] and with the like effect as if the same were referred upon application of either party to the supreme court.” The stipulation then provided the mode in which the referees should be selected, and that on filing the stipulation and appointment, “ either party might enter a rule for such reference accordingly. After the referees had been named, a rule for the reference was entered by the plaintiff’s attorney. The referees heard' the cause and made a report in favor of the plaintiffs, on which judgment was perfected. The defendant brought a writ of error, which was dismissed by the court for the correction of errors, on the ground that it did not appear that the supreme court had actually made any order or rendered any judgment in the cause, and that the remedy of the defendant, if the reference amounted to a discontinuance of the action, was by application to the supreme court to set aside the judgment.</p> <p>for the defendant, now moved to set aside the judgment.</p> <p>An affidavit of the plaintiff’s attorney was read, stating that the defence set up by the defendant was, that the notes had been given by the intestate to the wife of the defendant, and that the gift proceeded from the kind feelings of the intestate towards her in consideration of services rendered by her before her marriage ; and that in order to repel the evidence of a gift of the property, it became necessary to prove a great variety and number of articles or items of property which the intestate had furnished to the defendant’s wife for a period of about ten years ; and that thus the trial involved the examination of a long account between the parties.</p>

Taxation of costs. This was a motion fora mandamus to the judges of the New-York C. P., requiring them to re-tax the plaintiffs’ bill of costs, in. an action brought in that court against the relators by James P. Wright. . The action was upon 27 notes, commonly called bank bills, issued by the relators, of the denomination of $5 and upwards, amounting in all to $260.

Prime brought an action in the New-York common pleas against Plympton, the maker, and Coulter, the endorser, of a promissory note. The defendants pleaded severally. The defence was usury, and the jury found a verdict for the defendants.

Duffield and others commenced an action in the superior court of the city of New-York against the relators, Mills, Dias and Brindley as joint makers of two promissory notes. The action was commenced by declaration, a copy of which was served on the defendants Mills and Dias, but not on Brindley, who was not a resident of the county of New-York, but resided in the city of Philadelphia.

H. H. Martin, for the defendants, moved to set aside the default and all subsequent proceedings for irregularity. The action was commenced by the filing and service of a declaration and notice of rule to plead, on the 23d April.

McCormick sued the relator before a justice of the peace, and declared in trespass for breaking and entering his close situate in the town of Bethlehem. The declaration was general, and contained no description of the close. The defendant pleaded title ; McCormick thereupon brought an action in the common pleas, and 1 in his declaration described particularly the close in the_ trespass was alleged to have been committed.

Action against the maker and endorser of a promissory note. At the circuit the maker filed an affidavit of merits, but there being no affidavit by the endorser, the plaintiff proceeded and took an inquest against him. for the defendants, moved to set aside the inquest, and insisted among other things that the plaintiff could not sever the action and proceed against one of the parties without making up and filing a new circuit roll&emdash;the roll filed having been made up…

<p>Attorney’s fee attending prepared for the argument of a bill of exceptions, pursuant to notice from the adverse party, is taxable, although he do not actually attend.</p> <p>A defendant who obtains a verdict, which is confirmed by the court, may en. ter upon the record a bill of exceptions taken by the plaintiff at the circuit, and is entitled to an allowance therefor, unless the plaintiff waive the right to bring error.</p> <p>A witness is entitled to an allowance for one day in coming to, and one day in returning from the place of trial, although his residence is only eight miles from such place.</p>

Thirty-second street, as laid down on the commission-. ers’ map filed in 1811, between the 8th avenue and a line about 200 feet east of the 7th avenue, passed through lands which in September, 1835, were owned by James R. Whiting. He laid out the lands on both sides of the street into lots of about 25 feet front and 100 feet deep, fronting on the street, except the lots at the corners, which were of the same dimensions, but fronted on the 7th and 8th avenues.

A suit was commenced by Swain against West, in the New York common pleas, by capias ad respondendum, on which the defendant, being a non-resident of the slate of New York, was arrested and held to bail. Special bail was put in and notice of justification before a judge at chambers, given to the plaintiff’s attorney.

Proceedings to compel the determination of claims to real estate. The proceedings in this case previous to those, the subject matter of this motion, may be seen 18 Wendell, 544. After the judgment there mentioned was set aside, a rule was entered conformably to § 7, 2 R. S. 239, 2d ed., that Tibbits plead to the title'.

Application to set aside an election of directors. Held: pursuant to notice, for the choice of directors of the Mohawk and Hudson Rail Road Company, on the 13th day of June last. There were opposing tickets, one headed by G. M. Davison, and the other by S. Glover. The stock of the company consists of 10,000 shares, each share being entitled to a vote.

The plaintiff commenced a bailable action by capias ad respondendum against James Plant, Edward Plant, and James Dorsett; James Plant only was arrested,-and for him the defendants, Foote and Yates, became special bail—the bail piece naming the parties as they were named in the capias.

Motion to set aside execution, &c. on the ground that the defendant Orlan Scoville, upon whom alone the declaration was served, had, since the judgment, been discharged as an insolvent debtor, pursuant to 2 R. S. § 15, art. 3. The action was on a contract made in the year 1835, within this state, and was to be executed within this state; but the plaintiff then resided and has ever since resided in the state of Pennsylvania.

This was a motion that William S. Sears pay the cost of the reversal of a judgment obtained by Cocks against Bendernagle in the New-York common pleas, which was removed by Bendernagle into this court by Writ of error. The motion was founded upon the allegation that Sears was the real plaintiff in the suit in the C. P. and prosecuted it for his own benefit, although it was brought on a demand claimed to be due to Cocks ; and that the writ of error had been defended by him.

Exoneretur of bail. The defendants were sued in this court as special bail on a recognizance entered into in the superior court of the city of New-York, in a suit prosecuted in that court. Within the first eight days of the term of this court succeeding the commencement of the suit against the bail, the principal was surrendered, and on such surrender the bail applied to the superior court for an order directing an exoneretur to 'be entered on the bail piece.

The attaching creditor died intermediate the issuing of the attachment and the appointment of trustees. The commissioner, notwithstanding, appointed trustees. No new creditors had come in to avail themselves of the attachment. A motion was made to set aside the appointment of trustees and all subsequent proceedings, on the ground that by the death of the attaching creditor the proceedings abated.

Writ of prohibition. The relator was charged with being the father of a bastard child, and on the application of the superintendents of the poor of the county of Tompkins, a warrant was issued on which he was arrested. The charge was examined into by two justices of the peace of the county, who, after hearing testimony, determined that the relator was not the father of the child, and forthwith discharged him.

Retaxation of costs. After the cause was noticed for trial, the defendant served a relicta and cognovit, with a clause attached that judgment should not be entered thereon until the term succeeding the circuit. The plaintiff disregarded the relicta and cognovit, and took an inquest at the circuit; and in his bill of costs, charged the defendant with the costs of the circuit, which were allowed to him by the taxing officer.

This was an action on the case, tried at the Rensselaer circuit in September, 1835, before the Hon. James Vanderpoel, then one of the circuit judges. The plaintiffs declared for deceit in the sale of 184 bales of Italian hemp, amounting to 64,850 lbs., for which the plaintiffs paid the defendants at the rate of $210 per ton, the sum of $5775,71, besides charges for cartage. The declaration also contained counts on a warranty. The defendants pleaded the general issue.

This was an action of ejectment for dower, tried at the Yates circuit, in November, 1836, before the Hon- Daniel Moseley, one of the circuit judges. The plaintiff claimed to recover dower in the premises in question, as the widow of Dennis Van Dyne, with whom she intermarried in 1824.

<p>By a deed to husband and wife, the grantees hold the fee, not in moieties but in severalty, (per tout et non per my,) with the right of survivorship ; neither the husband or wife can in their own right alien any part without the concurrence of the other, nor can the husband’s creditors take his interest in execution. It seems, however, that the husband may alone execute a mortgage of his interest, and may also give a lease in his own name for the purpose of bringing ejectment.</p> <p>Acquiescence in an adverse possession according to an erroneous line is no bar, unless continued so long that the statute of limitations attaches.</p> <p>A grantee of lands may claim all embraced within the deed, as designated by monuments, courses and distances, although the premises are described as containing 200 acres strict measure and no more.</p>

This was an action of trover, tried at the Tioga circuit in November, 1835, before the Hon. Robert Monell, one of the circuit judges. The defendants, by virtue of an execution against Ichab0(j Westj jssue¿ on a judgment in their favor obtained in January, 1834, sold a mare, a colt and a waggon, for the doing of which this action was brought.

In the course of the charge, the judge remarked, as to a particular fact in the case, that in his opinion there was not sufficient evidence to establish the fact, but he submitted the question to the jury, and instructed them to consider the whole evidence in relation to it and to decide as they should find. This part of the charge of the judge was objected to.

Demurrer to declaration. In the first count it was stated that Webbers, in his life time, being sheriff of. the county of Westchester, having arrested one Edmund M. Blunt, by virtue of an attachment out of chancery for costs, the defendant, Joseph Blunt, represented to Webbers that the attachment had improperly issued, that the costs had been paid, and that Webbers ought not to hold E. M. Blunt in custody; and in consideration that Webbers would discharge him,, the defendant…

The defendant was tried at the Wayne general sessions on an indictment charging him with the crime of rape, and also with an assault with the intent to commit a rape. The district attorney proceeded to the trial without entering a nolle prosequi on the counts charging the principal offence. The jury found the defendant guilty of an assault and battery only.

Error from the Warren common pleas. Gray sued Hough in a justice’s court and declared on a guaranty entered into by the defendant, endorsed on a promissory note made by Daniel Moon for the sum of $45, dated 7th January, 1834, and payable to John Cameron or bearer, on the 1st February 1835. The guaranty was in these words : “ This “ may certify that I guarantee the payment of the. within “ note—dated 7 January, 1834;” and was signed by the defendant.

<p>Motion to set aside a report of referees. The plaintiff claimed to recover for services as an attorney, counsel and solicitor, in conducting various suits for the defendant. In pursuance of an order he furnished a bill of particulars, consisting of various charges for services rendered and moneys advanced in a suit commenced against the defendant by one Lain, in the Yates common pleas, where Wells obtained a judgment; which was removed by writ of error, first into the supreme court and then into the court for the correction of errors, where the judgment of the common pleas was finally affirmed. On the hearing before the referees the plaintiff proved that on the 28th March, 1836, he caused an account to be presented for upwards of $100, for counsel fees and money paid in the suit of Lain v. Wells, and that the defendant then admitted that he owed the - plaintiff the sum oí fifty dollars. On this evidence the plaintiff rested. The defendant offered in evidence two receipts given by the plaintiff to the defendant; one dated 10th December, 1835, for a quantity of oats, and the other for ten dollars to be applied to the costs of the suit of Lain and Wells, bearing date 9th June, 1835, which being objected to, were refused to be received by the referees. The defendant also offered to prove that the plaintiff agreed, at the time of the suing out of the last writ of error, that if Wells succeeded in the court for the correction of errors, he would not charge him any thing for services rendered in that court; this evidence being .objected to was also overruled. The defendant then proved that the present plaintiff had accepted the note of Lain for the costs recovered in the cause, and had discharged Lain from liability for such costs. The counsel for the defendant insisted that the plaintiff was not entitled to recover, because 1. as between attorney and client extra counsel fees are not recoverable, and the plaintiff having accepted Lain’s ■ note for the taxable costs and counsel fees, had no claim against Wells ; 2. that an agreement to pay more than taxable fees is not obligatory ; and 3. that the plaintiff was not entitled to interest. The referees reported in favor of the plaintiff for the $50 admitted by the defendant to be due, and the interest of the same. The defendant moves to set aside the report.</p>

<p>Where a party hath several demands or existing causes of action growing out of the same contract, or resting in matter of account which may be joined and sued for in the same action, they must be joined; and if the demands or causes of action be split up and a suit brought for part only, and subsequently a second suit for the residue, the first action may be pleaded in' abatement or in bar of the second action.</p> <p>It was accordingly holden in this case, where there were breaches of several and distinct covenants contained in the same instrument, and a suit was brought claiming damages for some of the breaches, and subsequently a second action was commenced claiming damages for other breaches, all of the causes of action having accrued at the time of the bringing of the first suit, that the first action might be pleaded in abatement of the second action.</p> <p>The same rule, it seems, extends to several actions against the same person for the same wrong; but not to several and distinct trespasses or wrongs.</p>

Error from the Albany mayor’s court. Shaw sued Butcher and Harris in an action on the case and declared against them that they were retained by the plaintiff, together with Bartlett Bent and Peleg B. Savary, to prosecute a suit against Horace Mea'cham and John Meacham; that they accordingly prosecuted such suit, and in May, 1832, recovered a judgment therein for the sum of $105,81 ; that-a fieri facias was issued and returned nulla bona; that on the 12th Becember, 1834, Bent…

This was a writ of error brought. to reverse a judgment rendered by a court of common pleas on a report of referees. On the cause being called on the calendar, the defendant in error (the plaintiff below) appeared and took a default against the plaintiff in error, and moved for judgment of affirmance and for the costs allowed by statute on affirmance after verdict.

Partition of lands. In this case a report of the commissioners appointed to make partition was read, stating that the lands, &c. were so situated that partition could not be made without great prejudice to the owners, and a motion was made for a sale. The report did not state any facts upon which the opinion of the commissioners was founded.

<p>Where the plaintiff1 declares on the money counts, and serves with the deck, ration a copy of a promissory note, with notice that the same will be given in evidence on the trial, a plea showing a good defence to the note without answering or attempting to answer the counts in the declaration is Bad, notwithstanding it be averred that the suit is brought for the recovery of the note alone, and not for the recovery of any other or different demand ; the plea to be good must be an answer to the counts and not merely an answer to the note.</p>

Error from the Otsego common pleas. Judson sued Bigelow and Whipple in trover, for certain articles of property which he, as sheriff of the county of Otsego, had levied upon under a distress warrant for rent due from one Devoe to George Clarke and Ann L. Clarke his wife.

This was an action of ejectment, tried at the Yates circuit in November, 1836, before the Hon. Daniel Moseley, one of the circuit judges. The plaintiffs claimed one seventh of the premises in question, in right of the wife, one of the plaintiffs, as one of the heirs at law of Allen Vorce ; and the defendants claimed the whole, as devisees under his will.

This was an action against' the defendant as a common carrier for the loss of the plaintiff’s trunk and contents. A case was agreed on between the parties stating the following facts : The defendant was a member of a company, the proprietors of three daily lines of stage-coaches running between Canandaigua and Buffalo, one of which was called the Telegraph line.

<p>Coach proprietors arc answerable as common carriers for the baggage of passengers, unless lost by inevitable accident, or through the acts of public enemies; they are also absolved from the consequences of a loss not occasioned by negligence or misconduct, where the owner is chargeable with fraud in the representation of the nature or value of the property, materially affecting the degree of care necessary to be bestowed, or the premium to be paid to the carrier, when such representation is required by the carrier, or when the owner is guilty of any other fraud in respect to the property lost.</p> <p>Common carriers cannot by notice limit their common law liability as to the safety of the goods ; the risk in that respect is upon them, and cannot be shifted to the owner. They may by notice, brought home to the owner, require the latter to state the nature or value of the property, or may for that purpose make a special acceptance : but they cannot by notice, rid themselves of the duty imposed by law to be answerable for the goods, unless the loss accrues by inevitable accident, or the acts of public enemies, or the owner has been guilty of fraud.</p> <p>It was accordingly held in this case, that a notice, “ all baggage at the risk of the owner,” brought home to the knowledge of a passenger in a stage coach who lost his trunk, was no protection to the proprietors of the coach in an action against them for the loss of the trunk.</p> <p>Mr. Justice Cowen, in the opinion delivered by him, holds that although ordinary bailees may make their own terms with their customers, that i t is not so with common carriers and innkeepers. He insists that they, from their public employment owe duties at common law, from which public policy demands they should not b.e discharged : and that consequently they cannot limit their common law liability even by express agreement.</p> <p>Common carriers are bound to deliver to each passenger at the end of his journey, his trunk or baggage. The whole duty in this respect rests upon the carrier. The exercise of ordinary care in marking the baggage, enter, ing it upon a way-bill and delivering a check ticket to the owner, renders easy its discharge. The passenger is not required to expose his person in a crowd, or endanger his safety in the attempt to designate or claim his property.</p> <p>It was accordingly held, in this case, that the proprietors of a stage coach were responsible for the loss of a trunk, although the passenger, after his arrival at the end of his journey, permitted the coach to proceed without any inquiry for his trunk, and was silent on the subject for an hour after the coach had left. From this resolution the Chief Justice dissented.</p> <p>It seems, however, if the delivery be conformable tó a well established and notorious usage, known to the passenger, that the carrier is discharged.</p> <p>A new trial will not be granted on the ground of a variance between the declaration and proof, as to the amount paid for the carriage of the passen. ger and his baggage.</p>

Demurrer to plea. The plaintiff declared in trespass for the taking of a quantity of iron ore,, the property of the plaintiff. The suit was commenced in December, 1835.

Arbitration and award. The plaintiff declared in assumpsit on the money counts.

This was an action of assumpsit, tried at the Oneida circuit in April, 1836, before the Hon. Hiram Denio, then one of the circuit judges. The plaintiffs declared on the common money counts, laying the promises on the 2d Decembér, 1817. The declaration was entitled of October term, 1835.

This was an action of trover, tried at the Columbia circuit in September, 1835, before the Hon. James Vanderpoel, then one of the circuit judges. The suit was brought for the taking of horses and other chattels claimed by the plaintiff to have been purchased by him of one Peter Merrifield. The defendant justified the taking as a constable by virtue of two executions against Merrifield, alleging the sale to the plaintiff to have been fraudulent.

This was an action of slander, tried at the Rensselaer circuit in March, 1836, before the Horn James Vanderpoel, then one of the circuit judges.

This was an action of assumpsit, tried at the Washington circuit in June, 1837, before the Hon. John Willard, one of the circuit judges. The plaintiff declared on a promissory note for $50, made by the defendant, bearing date 9th March, 1835, payable in one year, and also on the money counts.

Demurrer to replication. The declaration was in assumpsit. The defendant pleaded non-assumpsit as to the several sums mentioned in the declaration, except as to the sum of $52,50, and as to that sum a tender made before the commencement of the suit, to wit, on the fourth day of November, 1835.

This was an action of slander, tried at the New-York circuit in May, 1835, before the Hon. Ogden Edwards, one of the 'circuit judges. The plaintiff is an unmarried female. The charge against her was that she had criminal connection with a person of the other sex.

Error from the Madison common pleas. The plaintiffs in error, infants within the age of twenty-one years, brought their suit in trover, by prochein ami against the defendants in error, in the court of common pleas of the county of Madison, for the taking and conversion of personal property which had belonged to their deceased father in his lifetime, and also for the taking and conversion of a portion of the crops of a farm which had descended to them from their father, and…

This was an action on the case for stopping lights in a dwelling house, tried at the Oneida circuit in April, 1836, before the Hon. Hiram Denio, then one of the circuit judges. In 1808 the defendant being the owner of two village lots situate in the village of Clinton, adjoining each other, sold one of them to Joseph Stebbins, who in the same year erected a dwelling house thereon on the line adjoining the other lot with windows in it overlooking the other lot.

<p>Where in the description of premises in a deed conveying lands, course, and distance and monument are given, the premises must be located according to the deed ; and all parol evidence of the intent, the declarations and acts of the parties, going to establish a different location, is inadmissible as contradicting or varying the deed, unless a possession be shown under claim of title continued for such length of time as will be a bar to a recovery in an action of ejectment.</p> <p>Where, however, from the vagueness or obscurity of the description, or from the decay or destruction of the monuments referred to in the deed, doubt and uncertainty exist in the case, the declarations or acts of the parties, or facts dehors the deed may be shown by parol; such evidence not contradicting or varying, but coming in aid of the deed.</p> <p>An actual location different from the deed, but fixed upon by express agreement, is, it seems, obligatory upon the parties ; but a clearing of six acres in conformity to a line of marked trees upon a course extending 30 chains, and a possession continued for upwards of 20 years, where such line of marked trees is not conformable to the courses and distances intended, is not such evidence of an agreement of location as will bind the parties upon other portions of the line.</p>

Demurrer to declaration. The plaintiff Othenial Brotherton, declared in debt against Daniel Brotherton, on an instrument under seal, whereby he alleged that the defendant acknowledged that the sum of $217,10 was due to the plaintiff. The defendant craved oyer of the instrument and put in a general demurrer to the declaration.

<p>Where an association was formed between shippers on Lake Ontario, and the owners of canal boats on the Erie Canal for the transportation of goods and merchandize between the city of New-York and the ports and places on Lake Ontario and the river St. Lawrence, and a contract was entered into by the agent of such association for the transportation of goods from the city of New-York to Ogdensburgh on the river St. Lawrence, and the goods were lost on Lake Ontario; it was held that all the defendants were answerable for the loss, although some of them had no interest in the vessel navigating the lake, in which the goods were shipped.</p> <p>And it was further held, that notwithstanding an exception in the contract of the dangers of the lake, that the association were answerable for any loss occasioned by negligence or the want of ordinary care in the lading of the goods or the navigating of the vessel.</p> <p>Where in such contract the dangers of the lake were excepted, and the plaintiff in his declaration had omitted to state such exception, it was held that the variance was fatal.</p>

This was an action of ejectment, tried at the Cortland circuit in October, 1836, before the Hon. Robert Monedd, one of the circuit judges. The plaintiffs claimed two-fifths of 30 acres of land, as two of the heirs at law of Revilo Ford, who died intestate, seized of the premises, on the 27th July, 1820, and duly established their claim.

This was an action of ej'ectment (commenced previous to the statute requiring ejectments to be brought in the name of real plaintiffs,) tried at the Wayne circuit in September, 1836, before the Hon. Daniel Moseley, one of the circuit judges. The premises in question were a part of lot No. 86, Galen.

<p>This was a certiorari directed to three judges of the court of common pleas of the county of Rensselaer, to bring up proceedings had before them on an appeal from an order of the commissioners of highways of the town of Schodack declaring a certain road to have become a public highway by use, laying out the same accordingly, and directing it to be recorded ; which order’ was affirmed by the judges.</p>

This was an action on the case, tried at the Cayuga circuit in October, 1836, before the Hon. Daniel Moseley, one of the circuit judges. The suit was brought for an injury sustained by the son of the plaintiff, who was a minor, in being run over by a wagon driven by S. Wilcox, the son of J. Wilcox, whilst in the employment of the father.

<p>Where a party in whose favor a verdict'was rendered, kept up a conversation with one of the jurors in a low tone of voice whilst the counsel of his adversary was addressing the jury, although forbidden to do so by the justice before whom the cause was tried, the judgment entered upon such verdict was reversed upon^certiorari.</p>

<p>This case was submitted on written briefs at the last term and at this term, the following disposition was made of it.</p>

Error from the Jefferson common pleas. Wilcox sued Fuller in a justice’s court, and declared against the defendant for damages for taking and selling two cows contrary to law; 2. for taking and selling an unreasonable quantity of properly over and above any demand he had against the plaintiff; 3. for taking and selling on a warrant for the collection of a school tax a greater amount of property than was necessary to pay the tax, to wit, two cows, when one was sufficient.

This was an action of assumpsit, tried at the Oneida circuit in April, 1835, before the Hon. Hiram Denio, one of the circuit judges. Tillman & Benjamin were partners as cabinet-makers, and sold a bill of goods to the defendant in the spring of 1832. In October following, the partnership was dissolved, when Benjamin assigned to Tillman all the partnership property and debts, of which fact notice was immediately given to the defendant.

<p>Error from the Cayuga common pleas. Willard sued Tillman in an action of covenant for the non-payment of rent, and declared upon an instrument made fey Tillman, on, the 22d November, 1833, whereby in consideration of a lease executed to him by one Stewart B. Kendrick, of three rooms in a building owned by one Myron C. Reed, and of a piece of land extending from the canal to the south bounds of Reed’s land, 200 feet on the canal from east to west, for a term commencing 15th December, 1833, and ending 1st May, 1837, the defendant covenanted to pay $90 per year, payable quarterly, so long as he should be permitted to occupy the premises. The plaintiff then averred that on the 28th April, 1834, he, by sundry mesne assignments, became the assignee of the covenant; that the defendant was permitted to occupy the premises from the 15th December, 1833, until 15th June, 1835; that after the assignment to him the plaintiff, to wit, on the 15th June, 1835, three quarters rent had become due and remained unpaid. The defendant craved oyer of the covenant and of the lease therein referred to, and pleaded, 1. non est factum ; 2. that he paid to Stewart B. Kendrick and to the assigns and owners of the covenant the sum of $90 per year, quarterly so long as he was permitted to occupy the premises ; 3. that by virtue of the lease, he entered into possession of the premises, and occupied the same until 15th September, 1834, on which day, the whole of the building of which the demised rooms were a . , . , f „ part, was destroyed by fire, originating in a portion ot the building occupied by Stewart B. Kendrick, and that the fire happened by the carelessness and negligence of Kendrick. He averred that the only benefit of the lease to him was the occupancy of the rooms, and that in consequence of such careless and negligent conduct of Kendrick causing the destruction of the building, he, (the defendant,) was not from thence forward permitted to occupy the demised premises from the 15th September, 1834, until 15th June, 1835; and that up to the day of the happening of the fire, he had paid to the plaintiff all such sums of money as had accrued by virtue of the covenant. There wás a fourth plea substantially like the third. To the three special pleas, the plaintiff demurred, and the defendant joined in demurrer. The common pleas [adjudged the pleas to be. good and gave judgment for the defendant. Whereupon the plaintiff sued out a writ of error. The cause was submitted on written arguments by</p>

Error from the Tompkins common pleas. The plaintiffs in error, as overseers, of the poor of Ithica, sued Deyo before a justice, and declared, in debt for a penalty of $25 for selling strong or spirituous liquors without having obtained a license. 1 R. S. 680, § 15. Plea, the general issue. On the trial the plaintiffs called two witnesses and proved that the defendant had sold whiskey.

Error from the Tioga common pleas. Hart sued Vose, in an action on the case for overflowing his lands with water by means of a mill dam. One Thompson, the grantor of the defendant, and a witness for him, testified that the first dam was built by him more than twenty years before suit brought.

This was a suit in partition, commenced by petition under the statute, tried at the Rensselaer circuit in March, 1835, before the Hon. James Vanberpoel then one of the circuit judges. ” The petition presented by Sarah Brownell stated that herself, Daniel Brownell and Esther his wife, William Herald and Jane his wife, and a number of other persons named in the petition, held and were in the possession as tenants in common of a certain lot of land, (particularly described)…

<p>Error from the Chemung common pleas. Davis sued Watson before a justice, and after issue joined, the parties proceeded to trial. The defendant produced his books as evidence on the trial. The justice in his return states, that “ the testimony here closed and the cause was submitted to me. I took four days to make my decision, and during the four days Watson took his books of account from my office, promising to return them within the time stated above. And I further certify that late on the fourth day I went into my office to enter the said judgment, but the books of account were not returned, and in consequence of Mr. Watson’s absence, (who was at the time attending the funeral of his father-in-law,) could not obtain the above evidence so as to arrive at the balance in dollars and cents ; but publicly declared the principle upon6 which I made up judgment, and as soon after as I could obtain said evidence, made the entry in my docket, which was before entered as far as could be until the necessary evidence was obtained.” Judgment was entered for the plaintiff for $11,79 besides costs. Watson brought a certiorari to the common pleas, where the judgment was affirmed; and he now brings error.</p>

<p>Error from the Steuben common pleas. Whiting sued Dudley in a justice’s court, for trespass quare clausum fregit. This suit was commenced on the 19th August, 1834, and the plaintiff declared laying the trespass on the 28th August, 1828,. with a continuando. The defendant pleaded the general issue, and gave notice that on the trial he would prove that the locus in quo was and remained a public highway, and that the acts alleged as trespasses were done in the removal of obstructions and in the repair of the highway. On the trial the plaintiff proved that the defendant had repeatedly torn down his fences erected on that part of his farm over which a public highway formerly passed, that on the 12th November, 1833, the commissioners of highways of the town of Bath, in which town the premises are situated, made an alteration of the route of the road, laying it over other land of the plaintiff, and agreed with him that he might take the land over which the old road passed in lieu of the damages sustained by him in the opening of the new road. The commissioners caused a record of their doings to be made in the town clerk’s office, which -record was produced by the plaintiff, and read in evidence, although objected to by the defendant on account of the informality of the record, and the uncertainty of the description of the new road. The defendant offered to prove that the new road was laid through improved lands without the consent of the owners of the land over which it passed, and without the certificate of freeholders, that notice had not been given of the laying out of the road, and generally that none of the necessary steps to the lawful laying out of a road had been taken. The justice ruled that the record, for the purposes of this suit was conclusive, and that no evidence to affect the legality of the road could be received, and therefore rejected the offered testimony. The defendant then offered to prove that the old road had been used for 20 years before the alteration and laying out of the new road: which evidence was also rejected. The defendant called a witness who testified that the fences were thrown down by his direction as a path master. The plaintiff withdrew all claim for damages for trespasses committed previous to the laying out of the new road. The jury found a verdict for the plaintiff, on which the justice rendered judgment. The defendant sued out a certiorari, and the Jefferson common pleas reserved the justice’s judgment. Whereupon the plaintiff removed the record into this court by writ of error. The cause was submitted on written arguments.</p>

Á joint indictment for obtaining money by false pretences having been found against the prisoner and one Phettiplace, the district attorney of Chenango, previous to the arraignment of Phettiplace, elected to try Williams separately, and accordingly proceeded to his trial; it not appearing that any objection to such course was made by the prisoner.

<p>This was an action of ejectment, tried at the Cayuga circuit in October, 1835, before the Hon. Daniel Moseley, one of the circuit judges.</p> <p>The plaintiffs are the heirs at law of Jacob Hart, of Wilkesbarre, in the state of Pennsylvania, who died seized of the premises in the year 1811. The defendant made title to the premises under a sale thereof by virtue of an order of the judge of the court of probates of this state, made 4th August, 1814, on the petition of one David Ogden, to whom letters of administration on the estate of Jacob Hart had been granted by the judge of the court of probates in the preceding month of March. This title the plaintiffs attempted to impeach, by calling in question the jurisdiction of the judge of probates to grant administration. The facts were as- follows; On the 18th February, 1814, Ogden presented a petition to the judge of probates, stating, among other things, that Jacob Hart, late of Pennsylvania, died intestate, without this state—“ that the said Jacob Hart at the time of his death left no personal property within this - state,” but left certain real estate therein; that the petitioner was a creditor of Hart, and praying letters of administration. On the 22d March, 1814, letters were granted. On the next day, (March 23d,) the administrator filed an inventory, stating that there was no personal estate; and also presented a petition to the judge of probates for the sale of the real estate, for the payment of debts. On the same day the judge made an order that all persons interested in the estate should show cause, &c.; and on the 4th August, 1814, he made an order for the sale. On the 3d of November following, the premises in question were,- in pursuance of the order, sold and conveyed to the defendant by the administrator.</p> <p>The. defendant objected to the evidence offered by the plaintiffs to show that the judge had no jurisdiction, but the objection was overruled. The circuit judge charged the jury, that the defendant had failed in establishing a title, -and the plaintiffs were entitled to a verdict. The jury found for the plaintiffs. A motion is now made for a new trial.</p>

Promissory note and notary’s certificate of demand and notice. This was a motion to set aside a report of ieferees.

This was an action of replevin, tried at the Albany circuit in October, 1835, before the Hon. Hiram Denio, then one of the circuit judges. The action was in the detinet for detaining a 'quantity of sand taken from a lot in the city of Albany belonging to the plaintiff, which the defendant had excavated under a contract with the plaintiff, so as to make the lot conform to a profile or plan of the streets established by the corporation.

This was an action of debt, tried at the Essex circuit in June, 1833, before the Hon. Esek Cowen, then one of the circuit judges. The suit was brought upon a bond executed by Renne and two other persons as his sureties, conditioned to pay to the plaintiff such sum as should be found due to him by arbitration or otherwise in reference to a partnership which had existed between the plaintiff and Renne.

<p>A parol contract for the leasing of land for a term longer than one year is void; but if the tenant enter and by the terms of the contract the rent is to be paid at periods less than a year, as from month to month, the tenancy will be held to run accordingly.</p> <p>A notice to quit in such case must be a notice of one month.</p> <p>Where in such case a landlord gave a notice to quit, which expired on the fourth day of May, and subsequently received rent up to the first day of June following, and on the seventeenth day of June instituted proceedings under the landlord and tenant act, stating the receipt of rent up to the first day of June without alleging in his affidavit that at the time of so receiving it, he saved or reserved his rights under the notice to quit, it was held that the acceptance of the rent was a waiver of the notice, and that consequently the proceedings to remove the tenant were premature and erroneous.</p> <p>The unqualified acceptance of rent after the expiration of the notice to quit, as is a waiver of the notice; where there are circumstances creating a doubt to the quo animo, it is received, or as to the bona tides of the tenants, the ques. tion should be submitted to a jury; and it seems that though it is not the absolute duty of a judge to leave the question to a jury where there are no qualifying circumstances, yet that it would not be amiss to do so.</p> <p>Where, however, there is a general acceptance of rent after a notice to quit, has expired, it would be erroneous for a judge on a trial at nisi prius to in. struct the jury that there is no evidence of waiver ; and yet in reviewing proceedings Under the landlord and tenant act on certiorari, this court will not for that cause quash the proceedings: they holding that the power of the court does not extend to the correcting of such an error ; that a return of the evidence, or of exceptionable charges to juries on hearings or trials in summary proceedings, cannot be compelled ; that the magistrate is under no obligation to make return as to such matters, and incurs no responsibility, should he make a false return ; that the power of this court is limited to questions arising upon the jurisdiction, the pleadings, the proofs and the verdict and judgment rendered in the subordinate tribunal.</p>

Error from the Chenango common pleas. A suit was commenced in a justice’s court in the . name of Henry Mead against Edwin D. Gillett, The plaintiff declared on a promissory note, not negotiable, dated Ilth February, 1834, made by the defendant, whereby he promised to pay Henry Mead $25,50, by the 1st day of June next after the date of the note. The defendant pleaded the general issue and gave notice of set-off.

This was an action on the case for carelessly and negligently running down the plaintiffs’ boat and destroying a cargo of wheat, tried at the Cayuga circuit in October, 1835, before the Hon. Daniel Moseley, one of the circuit judges.

Error from the superior court of the city of New York. Alexander and Mullen declared on two promissory notes given to them by the defendant, one dated in August and the other in September, 1830, each payable in four months, amounting together to near Si000. The defendant pleaded an insolvent discharge from all debts owing by hitji, obtained in April, 1831, to which the plaintiffs replied a new promise, and the defendant took issue.

<p>An action of assumpsit for the support and maintenance of an illegitimate child, does not lie against the reputed father, notwithstanding the existence of an order of filiation and for maintenance, except upon a promise either express or implied.</p> <p>Where the putative father adopts the child, whilst such adoption continues a promise may be implied in favor of the party providing for the child ; but such adoption may be renounced and then the implied assumpsit termi. nates.</p> <p>The remedy in such cases is by proceedings under the order of filiation, in the names of the overseers or superintendents of the poor.</p>

<p>A plea of accord and satisfaction, alleging the satisfaction as moving from a stranger is bad. So is an accord executory.</p> <p>The best form of pleading such a defence, is by way of satisfaction; the very point of the plea being that the plaintiff accepted the thing in satis faction.</p> <p>In,a special plea facts and not evidence, must be alleged, and although evidence enough be set forth, which shown on the trial would bar the action, the plea will on demurrer be adjudged bad.</p> <p>A plea that the plaintiff agreed to take a third person as paymaster of a note declared upon, is frivolous.</p> <p>Where in an action against two defendants, one of them pleads that he was the surety of the other, and that the plaintiff without his consent, gave day of payment to the principal, and the cause is tried, and a verdict found for the plaintiff upon the plea of non assumpsit a judgment entered upon such verdict will not be reversed, although the jury did not pass upon the plea ex tending the time of payment.</p>

This was an action of assumpsit, tried at the Oneida circuit in October, 1836, before the Hon. Hiram Denio then one of the circuit judges.

<p>Error from the Jefferson common pleas. An action of ejectment for the recovery of a small lot of land was commenced in the Jefferson common pleas, by Anna Waterman, now the wife of David Gardner, in which judgment was rendered in favor of the plaintiff. On the trial of the cause the plaintiff produced a deed of the premises in question, executed to her by one Abraham Jewett, bearing date 25th September, 1821, the plaintiff at that time being the wife of one Dan Waterman. The defendant claimed title to the premises under a sheriff’s sale, by virtue of a judgment and execution against Dan Waterman in favor of Samuel Guthrie : which judgment was rendered on the 23d August, 1825, execution issued 8th March, 1826, and the sheriff’s deed executed 1st October, 1827. Abraham Jewett, the grantor of the plaintiff, was sworn as a witness and testified that Dan Waterman purchased of him the premises in question and paid him a span of horses for the same; that Waterman told him he wanted the deed to run to his wife, that he was in debt and wanted the conveyance made to his wife for the benefit of his family ; and that he accordingly made out the deed and delivered it to Waterman. Waterman died about December, 1830. It was further proved that, at the time of the conveyance to the plaintiff, her husband was indebted to Samuel Guthrie, the plaintiff, in the judgment. The counsel for the defendant requested the court to charge the jury that Dan Waterman had a resulting trust in the premises, which was liable to be sold under the execution against him; that no evidence having been given of the delivery of the deed to the plaintiff, the deed was inoperative; and that as against the judgment under which the defendant claimed, the deed of the plaintiff was fraudulent. The court, instead of complying with such request, charged the jury that Dan Waterman had no resulting trust in the premises; that the conveyance to the plaintiff must be deemed a voluntary settlement or advancement made to her by her husband ; that the deed was not fraud- > ulent as against the judgment under which the defendant derived title, and that the jury were authorized to presume a delivery of it to the plaintiff previous to the rendition of such judgment. The jury found for the plaintiff. The defendant having tendered a bill of exceptions, sued out a writ of error.</p>

This was an action on the cause for a malicious prosecution, tried at the Albany circuit in October, 1836, before the Hon. James Vanderpoel, then one of the circuit judges. The plaintiff proved that in January, 1830, he was arrested and held to bail on a capias issued out of the mayor’s court of the city of Albany, at the suit of the defendants, in an action of slander, without a judge’s order to hold to bail. 2 R. S. 348, § 8.

Demurrer to plea. The plaintiff declared for an assault, battery and false imprisonment.

This was an action on the case for a malicious prosecution, tried at the Chenango circuit in September, 1834, before the Hon. Robert Monell, one of the circuit judges.

Demurrer to declaration. On 24th December, 1S35, the defendants entered into a covenant with the plaintiff, whereby, after reciting that the plaintiff had by deed conveyed to Pond a house and lot in Auburn, upon which the plaintiff had executed to one Watson a mortgage bearing date on, &c. to secure the payment of $1084, and that Pond had purchased the premises subject to- the incumbrance of such mortgage, and had agreed to assume the payment of the same and save harmless…

This was an action of assumpsit, tried at the Albany circuit in October, 1837, before the Hon. John Willard, one of the circuit judges.

This was an action of trespass de bom's asportatis tried at the Washington circuit in November, 1835, before the Hon, Esek Cov^en, then one of the circuit judges. Held: and yet he, the defendant, goes on to take the wagon, makes sale of it at auction, and himself bids it in to satisfy his own debt Bates’ tight was not an express lien given by the owner, but one implied by law.

This was an action of ejectment,- tried at the Essex circuit in January, 1836, before the Hon. Esek Cowen, then one of the circuit judges. The plaintiffs produced in evidence letters patent to Francis Legge for 5000 acres of land, granted in 1769, and a deed from Francis. Legge to Rowe, one of the plaintiffs, bearing date 3d January, 1770, conveying the whole tract, of which the premises in question are a part.

This was an action of trover, tried at the Saratoga circuit in November, 1833, before the Hon. Esek Cowen, then one of the circuit judges. The suit was brought for the value of a canal boat, mortgaged to the plaintiff on the 14th October, 1831, by one Francis Hartwell, as collateral security for the payment of a judgment confessed by him and another person in favor of the plaintiff for $1093,22, of which sum $200 was agreed to be paid in 60 days, and the residue in one year.

<p>Demurrer to scire facias. The scire facias in this case was sued out under the following circumstances : Webbers, as sheriff of the county of Westchester, by virtue of two executions against one Caleb Underhill, levied upon a quantity of personal property. Richard M. Underhill claimed to be the owner of the property, and sued out a writ of replevin. Webbers avowed the taking under the executions. The issue upon the avowry was tried, and the jury found a verdict as to part of the property for the plaintiff, and as to the residue for the defendant. The value of the part found for the plaintiff was assessed by the jury at four hundred and fifty-four dollars, and the value of the property found for the defendant and the damages for the detention of the same were assessed at one thousand and forty-six dollars. The circuit judge, on the application of the plaintiff, granted a new trial, and after the order for a new trial and previous to the next circuit, the defendant Webbers died. His executors thereupon sued out a scire facias for the plaintiff to show cause why the action of replevin should not be continued by substituting them as defendants in the place of Webbers. To this scire facias the plaintiff demurred.</p> <p>for the defendant here. At common law the action abated by the death of Webbers—actio personalis mor^tur cum persona, 2 Sell. Pr. 190, and this rule of law is not altered by the statute, 2 R. S. 576, § 2, which gives • r ■ ,, . ¡ . . a scire facias to continue a suit by or against the representatives of either party who shall have died in the progress thereof.” If a literal construction be given to this provision, there is no longer such a thing as an abatement of a suit by the death of a party; and, what would be most absurd, an action of slander may be continued by and against the representatives of a deceased party. This could not have been the intention of the legislature; their meaning, no doubt, must have been that the suit might be continued in all cases where they had declared that it should not abate, and not otherwise. Replevin, like every other action, abates by the death of a sole defendant. .2 Wilson, 83. 3 Mass. R. 328. 4 id. 480. 1 Pick. 284. 8 Greenl. 128. There is no hardship in the case, the defendants have only mistaken their remedy. 8 Greenl. 128.</p> <p>for the plaintiffs. Webbers, in the action of replevin, was but a nominal defendant, the real defendants were the plaintiffs in the executions under which he acted, and in whose favor the jury upon the first trial, found to the amount of upwards of one thousand dollars ; and if this scire facias be not sustained they are remediless, notwithstanding the suggestion to the contrary in 8 Greenl. 128. The general rule of actio personalis moritur cum persona, is not denied, but it is not applicable here. This is a proceeding in rem, and such proceeding does not abate by the death of a party. Penhallow v. Doane’s adm’rs, 3 Dall. 86, 101, 118. Or it may be conceded to be in. rem et personam, but what is personal is merely incidental, that is, the damages ; the action is brought for the thing, and the damages are a mere incident. Willes, 668. 6 East, 283; 2 Smith, 365, S. C. 2 W. Black. 1330. 16 Serg. & Rawle, 300. 6 id. 272. 1 Har. & John. 31. 2 Blackf. 416. 6 Halst. 179. In Adams v. Rockwell, 16 Wendell, 303, replevin was considered as a proceeding in rem, and on the reversal of the judgment for the plaintiff, who had died, the court for the correction of errors directed the record to be remitted so that the suit might be reviewed against his representatives, and a venire de novo be issued. For wrongs done to the property of another, an action is given by statute against the executors or administrators of the wrong-doer, 2 R. S. 447, § 1 ; and as to the right to sue out a scire facias this case is within the very words of the statute, 2 R. S. 576, § 2, which read in connection with the provisions of the statute relative to the abatement of suits, 2 R. S. 386, § 2, 3, 4, clearly shows the intention of the legislature to extend the remedy beyond the cases specified in the sections last cited.</p>

This was an action on the case, tried at the Onondaga circuit in April, 1836, before the Hon. Daniel Moseley, one of the circuit judges. The action against the defendant was for negligence, in navigating a canal boat called the Amboy, of which he was the owner and master, whereby his boat came in collision with another boat called the Calcutta, on board of which the plaintiffs had a large quantity of barley, and broke and injured her so that the barley became wet and damaged.

<p>The marine court of the city of New-York has jurisdiction of an action of debt, on a bond taken in that court from a surety for the appearance of a</p> <p>- defendant on a day to which the trial of a cause is adjourned at his request, although the penalty of the bond exceed $100, the ordinary limitation of the jurisdiction of the court.</p> <p>If the trial of the cause on the adjourned day be postponed by the court on its own motion to a future day, the defendant must appear, and that in person on such postponed day, or the bond of his surety will be forfeited; his appearance on the day to which the cause was first adjourned, is no defence.</p> <p>The plaintiff in such case is not bound to pursue his remedy against the principal before resorting to the surety.</p>

Demurrer to plea of property in a third person in an action of trover. The plaintiff, John Hurst, declared in trover, for the taking and conversion of certain goods and chattels belonging to him.

<p>In an action of ejectment for dower, the plaintiff cannot, in general, for the purpose of showing her right to recover, avail herself of recitals contained in the deed by which the defendant holds the premises, or contained in the deed of his grantor, recognizing her right of dower; not being a party or privy to their deeds herself, they cannot operate as an estoppel Upon her and consequently cannot have that effect upon others.</p> <p>In case of the loss of the primary evidence to establish the right to recover, such recitals may be resorted to as secondary evidence.</p>

Error from the Schoharie common pleas. Bowne sued Witt in an action of replevin for taking his cloak. The defendant justified the taking, as a constable, by virtue of an execution against the plaintiff. The plaintiff insisted that the cloak was exempt from execution under the provisions of the statute exempting the wearing apparel of a householder and his family, 2 R. S. 254, § 169.

Error from the Oneida common pleas. A suit was commenced in a justice’s court in 1531, by one Joseph Parke, junior, in the name of Ezekiel Cady, as plaintiff, against Humphrey Brown. The declaration was in debt, on a judgment in favor of the plaintiff against the defendant, for $17,35 damages, and $1,03 costs, rendered by William Lacey, a justice of the peace, on the 20th October, 1820.

Error from a court of special sessions. Horace Thomas was convicted at a court of special sessions, in the county of Tompkins, of a misdemeanor under the 26th section of the act to abolish imprisonment for debt and to punish fraudulent debtors, Statutes, sess. of 1831, p. 396, 402, and fined $50. The conviction was removed into this court by certiorari.

This was an action of debt, tried at the Allegany circuit in September, 1835, before the Hon. Charles H. Rugóles, one of the circuit judges.

Demurrer to plea. Action for a libel on the plaintiff, who, at and before the time of publication, was deputy collector of the port of Ogdensburgh, and inspector of the customs for the district of Oswegatchie.

This was an action of assumpsit brought to recover the balance claimed to be due upon a promissory note made by D. Jones, jun. the defendants’ testator, to Richard Deyo, the plaintiffs’ testator for the sum of $715,55, with use dated 2d April, 1821. The defendants pleaded non-assumpsit and the statute of limitations.

Demurrer to declaration. The plaintiff declares in assumpsit, on a promise of the testator that in consideration that the plaintiff would advance to one J. F. Smyth money, for the purpose of facilitating his advancement in life, he would indemnify and save the plaintiff from all loss which he might be put to by reason of such advancement of money as aforesaid, for an amount in the whole not exceeding $5000.

<p>This was an action of trover, tried at the Ulster circuit in October, 1835, before the Hon. Addison Gardiner, then one of the circuit judges.</p> <p>The suit was brought for the selling of a quantity of fire wood and three canal boats, which had been levied upon by the plaintiff, as a constable of the town of Kingston, on the .A/^ day of August, 1834, by virtue of three attachments issued by a justice of the peace against the property of one Jeremiah J. Clow. The plaintiff had gone to the places where the wood and canal boats were, saw them, made an actual seizure, and took an inventory of the property. The defence set up was, that the plaintiff, as sheriff of the county of Ulster, had made a previous levy on the same property by virtue of an execution issued from this court against Clow, and had sold the same, and that the avails of the sale were not more than sufficient to satisfy such execution. The levy of the defendant was made on the fourth day of August, 1834, under these circumstances: The defendant, after receiving the execution, went to the dwelling house of Clow and made an actual levy upon the household furniture and other goods and chattels there present, and requested Clow to inform him of any other property that he possessed subject to execution. Clow thereupon informed him that he was the owner of a quantity of fire wood, part of which was on a lot a mile and a half distant, and the residue on a lot five miles distant from his house; and also that he was the owner of three canal boats lying at Rondout, about two and an half miles distant from his house. The defendant then, with the assent of Clow, made an. inventory of the property levied upon by him, including the wood and canal boats, and on the next day advertised the whole of it for sale, and subsequently sold it. The defendant did not, previous to the levy by the plaintiff, go to the places where the wood and canal boats were, nor did he see the same. The judge ruled that the defendant had failed in establishing a defence, and the jury, under his direction, found a verdict in favor of • the plaintiff for the amount claimed by him. The defendant asks for a new trial.</p>

Error from the Madison common pleas. Hale brought replevin against Clark for taking six swine, the property of the plaintiff. The defendant avowed the taking of the swine damage feasant, stating that they were in his barn eating his corn. To this avowry the plaintiff demurred. There was a second avowry similar to the above, to which the plaintiff pleaded that the defendant did not, within 24 hours after the distress, have his damages appraised.

<p>If a party covenant to do an act, he is bound to perform what he undertook to do, or pay damages; the difficulty or improbability of accomplishing the undertaking will not excuse him. Nothing short of showing that the thing to be done cannot by any means be accomplished will relieve him from his obligation. It was accordingly held in this case, where the defendant had covenanted that he would perfect in England a patent right granted in this country so as to ensure to the plaintiff the exclusive right of vending the article patented in the provinces of Upper and Lower Canada, that he was not excused from performance, although it appeared that the power of granting exclusive privileges of this kind appertained not to the mother country, but to the provinces, and were never granted except to subjects of Great Britain and residents of the provinces, and could not be granted to either the plaintiff or the defendant, as both were citizens of this country.</p> <p>An American citizen, it seems, may obtain a foreign domicil, which will impress upon him a national character for commercial purposes.</p>

Demurrer to .declaration. The plaintiff declared on a covenant, whereby ■ the defendant bound himself to the plaintiff to the amount of $600, as security, that one Matthew Howard should in all things fully perform a contract entered into by him with the plaintiff according to the true intent and meaning thereof.

<p>Trespass lies for an entry upon land and an ouster of. the plaintiff, but damages can be recovered only for the simple entry and ouster, and not for the continuance of the trespass. Damages for the continuance are not recoverable until after the plaintiff has regained possession byre-entry.</p> <p>Trespass quare clausum fregit cannot be maintained by the owner of land against a third person for passing and re-passing over the land whilst the premises are in the actual occupation of a tenant.</p> <p>Where the owner of land sells and conveys a portion thereof which cannot be approached from a public highway, but over the remaining lands of the grantor, the grantee is entitled to a right of way over such remaining lands. The grantor, it seems, in such case has the right to designate the track of the way, having a due regard to the rights of both parties ; if he decline to exercise such right, the grantee may select for himself and will be supported in his selection unless chargeable with palpable abuse. The grantee is bound to keep the way in repair, and is not permitted to go extra viam as a traveller upon a public highway is allowed to do when the way is impassable, except, it seems, when the private way is temporarily or accidentally obstructed.</p>

This was an action of assumpsit, tried at the Broome circuit in March, 1836, before the Hon. Robert Monell, one of the circuit judges. The suit was brought to recover a sum of money paid by the plaintiff, which he claimed that the defendants were bound to refund to him.

Error from the Onondaga common pleas. Eastwood sued Sanger in trover for a horse, and claimed to recover under a mortgage of the horse executed to him by one James Foran, 28th June, 1834, conditioned for the payment of $80 according to the terms of a promissory note made by Foran to the plaintiff. The defendant bought the horse of Foran with notice of the existence of the plaintiff’s mortgage ; the horse at the time of the purchase being in the possession of Foran.

Demurrer to pleas. The plaintiff declared in assumpsit. In his first count he stated that the defendant being indebted to him in the sum of $1000, gave him an order upon one Orris Hall, requesting Hall to let him (the plaintiff) have his ndte for $531,92; that he presented the order to Hall and demanded the note, which Hall refused to give, of which the defendant had notice. The other counts were for goods sold, money lent, &c. The defendant pleaded, 1. Non-assumpsit; 2.

<p>The mere fact of a conveyance of land, and an agreement for a reconveyance at a future day at an advanced price, at the election of the grantor, affords no evidence of an intention that the deed should be considered as a mortgage.</p> <p>Had it appeared that the deed was given for a pre-existing debt, or on a loan of money, or had the grantor entered into an obligation to repay the consideration money expressed in the deed, then the question whether the transaction should not be deemed a mortgage would have arisen.</p> <p>•But even.then, whether parol evidence to show that an absolute deed was intended as a mortgage can be received in a court of law, quere.</p>

Error from the Otsego common pleas. Nash sued Ely in a justice’s court in irover, for taking and converting to his use, certain articles of personal property, which he had levied upon as a constable, by virtue of an attachment against the property of one Godfrey Grosvenor; which attachment was sued out by Jabez Chapman and Samuel H. Warner, on the 19th April, 1836, and the property levied upon on the same day.

This was an action of assumpsit tried at the New-York circuit in February, 1836, before the Hon. Ogden Edwards, .one of the circuit judges. The plaintiffs declared as the endorsees of a promissory note made by the defendant. The declaration also contained the common counts. The defendant pleaded in abatement that the promises were made jointly with one Roberts R. Taylor, who is still living, &c. on which issue was joined.

Demurrer to declaration. The declaration commenced by stating that the plaintiffs complained of the defendant of a plea that he rendered to them $4000, which he owed to and unjustly detained from them.

Error from the New-York common pleas. Ray sued Duncan to recover the price of a mare sold to him. The sale was proved to have taken place in October, 1825.

<p>By the revised statutes, the law in relation to the liability of sheriffs in respect to the sureties on executing a writ of replevin is changed. For. merly the sheriff was answerable for the sufficiency of the sureties in all ca. ses ; now he is liable only where the defendant in replevin has excepted to their sufficiency, and they or new sureties have failed to justify. The declaration must accordingly contain averments to bring the case within the statute, or it will be bad.</p> <p>If the sheriff wholly omit to take sureties, he is still liable as at common law, but then the omission should be directly and distinctly alleged; if the declaration, in this respect, be equivocal, it will be adjudged defective.</p>

This was an action of assumpsit against the defendants as •1 , „ , , - . . ^ . common carriers, tried at the Schenectady circuit in Uctoher, 1835, before the Hon. James Vandbrpoel, one of the circuit judges. _ _ The declaration contained two counts : in the first it was alleged that the defendants undertook and promised the plaintiffs to take care of, and securely carry and convey by their coaches and rail-road cars from Saratoga Springs to Schenectady for the plaintiffs, a…

Error from the superior court of the city of New-York. Chatfield and Kipp executed a bond to Frye, by the name and description of “Daniel M. Frye, clerk of the upper police in the city of New-York,” in the penal sum of $33.

Error from the New-York C. P. Lovett sued Pell in the court below- The first count of the declaration was in covenant, to yvhich were added several counts in assumpsit. Plea to the first count, non est factum, and to the subsequent counts, non assumpsit. There was a verdict and judgment for the plaintiff on both issues, and Pell now brings error.

Demurrer to plea. The declaration in this cause contained five counts : 1. For divers goods, wares and merchandizes. and thirteen kegs of tobacco, sold and delivered to the defendant; 2. A quantum valebant on same articles; 3. An insimul computassent; 4.- A count for money had and received, money paid, laid out and expended, and money lent and advanced; and 5. A count for work, labor and services and materials found.

Error from the superior court of the city of New-York. This was an action against Minturn for negligence as an auctioneer in omitting to make an entry in his sale-book conformable to the requirements of the statute regulating sales at public auction, 2 R. S. 136, § 4, he having in December, 1830, sold a brig belonging to the plaintiffs.

This was an action of replevin, tried at the New-York circuit in October, 1836, before the Hon. Ogden Edwards, one of the circuit judges. The defendant Valentine demised to the plaintiff for a term which ended 1st May, 1835, the lower part of a house in Mulberry street, New York, consisting of all the lower story, the two front garret bed rooms, the front basement kitchen, with half the cellar and privilege in the yard.

Error from the supreme court of the city of New York. jytcLaren brought an action of assumpsit against Joseph Watson. The declaration contained numerous special counts and also the common money counts.

Trial for Murder. The prisoner was indicted for the murder of Robert Shepherd. The prisoner kept a bawdy house in the city of Albany. On the night of the eleventh day of March, 1838, between the hours of twelve and one o’clock, the deceased and two other persons, of the names of Wilson and Whitney, went to the house of the prisoner.

Motion to set aside a default for not pleading. The decíaration was served on Tousey on the 5th, and on St. John on the 6th September, 1838. On the 20th the Recorder of New-York (the circuit judge of the 1st circuit being absent) ,granted an order allowing 20 days further time to plead, which was served on the same day.

A writ in the nature of a writ of error coram nobis was issued out of this court, in the name of The People, directed to “ The Justices of the Supreme Court of Judicature of the same people,” and “Because in the record, &c. between, &c. in a plea of debt, as it is said manifest error hath intervened, &c. And we being willing, &c. do command you that if judgment be therefore given, then that you cause a transcript of the record of that judgment and all things concerning the…

This was an action of assumpsit, against the defendant as an executor. The cause was referred and a report made in favor of the plaintiff, which the defendant attempted to set aside on the merits. Whilst the application for that purpose was pending, the plaintiff was stayed from entering judgment. After a considerable lapse of time, the motion to set aside the report was heard and denied, and judgment rendered for the sum reported.

Costs in ejectment, where there are two plaintiffs, and a verdict in favor of one, and against the other. The declaration contained two counts, one alleging title in one of the plaintiffs, and an ouster of him, and the other count alleging title in the other plaintiff, and an ouster of him. The same premises were claimed in each count.

<p>The declaration in this case contained three counts : the first and second in trespass and the third in case. The-cause was tried and the jury rendered a general verdict for the plaintiff for $250. The defendant moved in arrest of judgment, and succeeded in his motion. The entry made in the minutes of the court was, “judgment reversed” instead of judgment arrested. The plaintiff produced a certifica,te of the circuit judge, that evidence was given by the plaintiff applicable to either of the three counts; and that the testimony given under the third count was in his (the judge’s) judgment, applicable also to the second count, and would have justified the jury in giving the verdict which they rendered on the second count, instead of a general verdict on the whole record. Upon this certificate, the plaintiff moved that the rule or order of the court entered on the decision of the motion in arrest be vacated, that the motion be re-argued, that the plaintiff have leave to strike out the third count of the declaration and apply the verdict upon the first and second counts, or for such other and further relief as to the court should seem meet.</p> <p>for the plaintiff, insisted that the plaintiff should have leave to strike out the third count, and to apply the verdict to the first and second counts, as by so doing the inconsistency of the counts would no longer exist. Where there is a general verdict, upon counts, some good and some lad,, upon producing a certificate of the circuit judge, that the evidence given on the trial applied as well to the good as to the lad counts, a plaintiff is permitted to amend the postea on payment of the costs of the motion in arrest. 1 Caines, 392, 1 Johns. R. 505. 12 Wendell, 135. Here the judge certifies that the evidence was applicable to either of the counts, and that the testimony given under the third count was in his judgment applicable also to the second count and would have warranted a verdict upon that count. A general verdict upon misjoined counts presents in principle the same question as a joinder of good and bad counts, and should receive the same determination. At all events, a venire de novo should be awarded, as was suggested by Buller, J. in the case of Eddowes v. Hopkins, 1 Doug. 376, on payment of costs.</p>

Motion to be discharged from custody. The defendant Deyo was arrested on a capias ad satisfaciendum issued on a judgment obtained in 1836, in an action of trover.

A motion was made in this case to set aside the circuit roll, verdict, and subsequent proceedings for irregularity. The plaintiff declared in assumpsit on .a promissory note; the defendants pleaded the general issue and a special plea that the note was obtained by fraud. The plaintiff put in a replication taking issue upon the last plea; to which replication the defendant demurred and the plaintiff joined in demurrer.

Motion to set aside a writ of replevin and all subsequent proceedings upon the grounds that no penalty was inserted in the replevin bond, and that it was executed by the plaintiff with but one surety.

Motion to quash a certiorari sued out to remove a cause Feb-1839from a court of common pleas into this court. A judgment was obtained in the Yates common pleas in the name of The People against the defendants, and subsequently a scire facias to obtain execution upon that judgment was sued out returnable in the same court.

This was a motion to set aside the election of seven directors of the company, declared by the inspectors of the annual election held in September, 1838, to have been duly elected. The grounds relied upon in support of the motion, were the following: 1. That the inspectors were net sworn faithfully to perform the duties of their appointment; 2. That one of the inspectors was an officer of the company; 3.

' Motion to set aside a plea of accord and satisfaction, March, 1839. pleaded puis darrein continuance on the hearing of the cause before a referee. There had been several continuances between ¡¡me that the matter of the plea arose and the time of pleading it.

This was a motion for judgment as in case of nonsuit, or that the plaintiff pay the defendant the costs of preparing for the defence of the suit at the last December circuit held in and for the county of Yates. The suit is a writ of error prosecuted for error in fact, was noticed for trial by the plaintiff, and neglected to be brought on to trial when called on the calendar.

Motion to set aside a common law writ of certiorari, to remove proceedings had before the commissioners of highways relating to an encroachment, on the ground that the writ did not appear to have been allowed by the court. The papers in answer show that the writ was ordered by the court on an ex parte application, but notice of that fact was not given to the commissioners.

Motion by defendant to set aside report of referees, on the ground that neither a replication to a plea of payment, or a notice of hearing had been served. The defendant, who is an attorney, defends in person. Pending the suit he appointed' a new law agent in Albany, without notice to the first agent that his services were no longer required.

The defendant Standart was the maker, and one David Griffith was the endorser of a promissory note on which the action was brought. The suit was commenced by capias against both maker and endorser under the act of 1832, with an ac etiam clause for the purpose of holding them to bail, they being non-residents of the state. Standart was arrested and held .to bail, and Griffith was returned by the sheriff non est.

Motion, to set aside judgment for irregularity and on the ground of merits. The plaintiffs were the holders of a joint and several promissory note, made by Collins, Cogswell and Field, and endorsed by Davis. The makers and the endorsers were sued in one action under the statutes of 1832 and 1835. Collins, one of the makers, pleaded; the two other makers, and Davis, the endorser, severally suffered default.

Motion to set aside a ji. fa. for irregularity. The judgment was recovered November 5, 1838. On the 9th November a fi. fa. was issued to the sheriff of Seneca county, where Henry Woolsey, one of the defendants, lived.

<p>Motion for a peremptory mandamus, on the return to an alternative writ. A justice’s judgment was removed into the C. P. by certiorari and reversed. The relator, who was the piaintjflf jn error, in perfecting the judgment of reversal, had the record signed by William Bartlett, a judge of the C. P., ^ut w^° was neither the first judge, nor of the degree of counsellor in the supreme court. On the motion of John Hutchinson, the defendant in error, the common pleas set aside the judgment record and subsequent proceedings on the ground that Judge Bartlett had no authority to tax the costs or sign the record. The relator insists that the C. P. erred.</p>

Motion to quash a certiorari removing this cause from the Onondaga C. P. into this court. After issue joined, the cause was noticed for trial in the court below, and the trial was put off by the defendants on payment of costs.

Motion by plaintiff for leave to amend declaration after the cause had been twice noticed for trial. The action is slander for charging plaintiff with mal-practice as a physician. The defendant pleaded the general issue, and gave notice of special matter in justification. The plaintiff asks leave to insert other words, imputing mal-practice, and also charging the plaintiff with being a quack, or practicing as a physician without a diploma.

This suit was commenced by the service of a declaration on the defendant. On the first day of January last the plaintiff declared on two promissory notes made by the defendant in July, 1838. On a commission out of chancery it was found by inquisition on the 14th September last, that the defendant was incapable of conducting his own affairs in consequence of habitual drunkenness, and that he had been so incapable since the first day of June last.

R. Emmet, the counsel for the corporation of the city of N. York, presented a report of the commissioners of estimate and assessment and moved for confirmation.

<p>Where an ancient street in the city of New-York, situate south of the line designated by the act of the legislature, passed 3d April, 1807, as the southern boundary of that part of the city authorized by that act to be surveyed and laid out into streets and public squares, is closed or discontinued in whole or in part in improvements made under the direction of the corporation the land over which such street or part of the street passed results to the owner of the land directly opposite to the portion of the street closed or discontinued, the title of such owner extending prima facie and of common right ad Slum medium vim, subject only to the public right of way : and consequently an act of the legislature vesting such street or portion of a street so closed or discontinued in the corporation of the city, is unconstitutional and void.</p> <p>The true reading of the clause in magna charta that “ no freeman shall be disseized of his freehold, &e. but by the law of the land,” is, that no freeman shall be disseized, &c. except by due process of law.</p> <p>On a motion to confirm the report of commissioners of estimate and assessment, the policy or expediency of the contemplated improvement will not be considered. Whether the determination of the corporation in this respect can in any way be reviewed, quere ; though it seems that a certiorari lies for want of jurisdiction, or error on the face of the proceedings.</p> <p>On the coming in of the report, affidavits of disinterested persons in respect to the amounts of benefits and damage estimated and assessed will be received and considered, provided the same have previously Been submitted to the commissioners; but unless there be a plain and decided preponderance of evidence against the judgment of the commissioners, the report will be confirmed. The report is not only viewed with the same favor as the verdict of a jury, that is, is sustained until it be affirmatively and clearly shown to be unwarranted by the evidence, but is regarded with still greater consideration, inasmuch as the commissioners are authorized to act upon personal view and individual knowledge, and it seems, upon information derived from persons not under oath.</p> <p>The opinions of disinterested persons in respect to the amounts of benefit and damage will be received, but the commissioners are not bound to regulate, their estimates by such opinions, however numerous.</p> <p>The affidavits of owners of property taken, or assessed for benefit, giving their estimates of value or benefit, are not admissible ; the owners being parties cannot be witnesses.</p> <p>In estimating and assessing the amount of damage and benefit, the commissioners are not authorized to act upon an appraisement unverified by oath, of the expense of the removal of buildings, alterations and repairs, made by individuals to whom that duty had been_delegated.</p> <p>Commissioners of estimate and assessment, both at common law and by stat. nte are authorized to administer oaths to witnesses in all matters relating to the discharge of their duties.</p> <p>When a lot is reported as benefitted, it is no objection to the report that the persons named as owners are not the real owners, provided the lot itself be truly described ; where damage is allowed, it seems it would be otherwise.</p> <p>An estate in remainder in fee, after a life estate, may be mortgaged, although by the will creating the estate power is given to third persons to sell the land for the purpose of a division among the devisees.</p> <p>A mortgage payable at or before a day certain, may be paid immediately; the motgagor cannot be required to keep the money and pay interest until the day specified in the mortgage.</p> <p>Where property taken for a street is subject to a mortgage, it is the duty of the commissioners to award the sum allowed 51s damage to the mortgagee, or at least as much thereof as is necessary to satisfy the mortgage, and that although the money be not due.</p> <p>Affidavits which have not been submitted to the commissioners are inadmissible on appeal, when offered for the purpose of attacking or setting aside the report, but will be received in support of the report; so held by a majority of the judges in the case of Anthony street, (post) cited in this case by Cowen, J., who dissented.</p> <p>Parties interested, who have omitted to lay their proofs before the commissioners, are concluded, unless they show want of knowledge of the proceedings on the part of the corporation. If a satisfactory excuse be offered, the report will be remitted, so that there may be an opportunity to be heard.</p>

At the last March special term, R. Emmet, counsel for the corporation, moved the confirmation of the report of the commissioners of estimate and assessment in the case of William-street.

Motion to set aside a default for not rejoining, and the proceedings on the part of the plaintiff subsequent to the default. The action was ejectment for a dwelling house orchard and garden. The defendant pleaded the general issue, and afterwards, as to 3-10ths of one acre of the premises in question, pleaded a title acquired by him, puis darrien continuance.

Motion to change the venue. The action was joint against Dorsheim, as maker, and Judson and Case, as endorsers of a promissory note. The endorsers, (who alone pleaded) moved without the maker joining, for a • rule to change the venue from Cayuga to Erie.

The relators issued an execution on a judgment in their favor, against Joseph L. Joseph and others, which was levied upon household furniture in the possession of the defendants in the execution.