Volume 2 — Aikens's Vermont Reports (1825–1828)

MOTION, by the plaintiff, that the verdict against him, obtained at the last Nov. adjourned term of Chittenden county court, be set aside, and that a new trial be granted him, founded on exceptions taken at the trial, and certified to this Court, as follows:— This was an action of assumpsit, tried on the general issue against the defendant as endorser of a promissory note executed by Hiram Burnham, to one Cumber, who endorsed it to the defendant, by whom it was endorsed to…

<p>THE action below was assumpsit in favour of the present defendant in error, and Silas Richards, since deceased, surviving partners of Andrew Ogden, on several promissory notes executed by the plaintiff in error, to the said firm, by the name of Andrew Ogden Company.</p> <p>Plea, the general issue, with a notice of special matters to be given in evidence, on trial under said issue, which was as follows :</p> <p>“And the defendant, agreeable to the statute in such case made and provided, gives notice that he shall rely upon, and give in evidence under the above issue, the following special matters, to wit: that at the several times herein after mentioned, the said Silas and David and the said Thomas were citizens of the state of New-York, residing in said state, to wit, at the City of New-York—that the legislature of the state of New-York, on the 12th day ofjApril, 1813, pass.éd an act, entitled “An Act for giving relief in case of insolvencyThat after the said 12th day of April, 1813, the said Thomas Herring became insolvent, within the true intent and meaning of the act aforesaid, and was actually imprisoned for mo^e than sixty days next before the 27th day of January, 1817, upon execution in a civil action : that one Benjamin Birdsell, of the same City'of New- York, a creditor of the said Thomas Herring, did, on the 27th day of January, 1817, present his petition to Richard Riker, recorder of the City of New-Yorb, for relief, and did then and there make affidavit that he was a creditor of the said Thomas, and that the said Thomas was jointly indebted to him the said Benjamin, in a certain sum therein named, and not less than twenty-five dollars'; and that the said Thomas was then in prison on execution issued against him. in a civil action, and had been so imprisoned for sixty days and upwards: whereupon the said Richard Riker, recorder of the City of New-York, issued his notification in pursuance of the act aforesaid to the creditors of the said Thomas Herring, to show cause before him, why an assignment should not be made of the estate of the said Thomas, and the said Thomas thereupon be discharged, agreeably to the provisions of the act aforesaid; that in pursuance thereof, such proceedings were had thereon, that the said Thomas did assign all his estate to one Joseph D. Fay, of the said City of New-Yorb, for the benefit of the several creditors of the said Thomas Herring, and that the said Richard Ri-ker, recorder as-aforesaid, being satisfied that so many of the creditors of the said Thomas Herring as had debts owing to them to the amount of two-thirds, in' value, of all the debts owing by the said Thomas, had requestéd said assignment to be made, did, on the 5th day of April, 1817, at the City of New-York, make a certain discharge in the words and figures following, to wit:—</p> <p>“ To all to whom these presents shall come, or may in any wise “ come — I, Richard Riker, recorder of the City of New-York, “ Send GREETING.</p> <p>“ Whereas, Thomas Herring, of the said City, an insolvent debt- “or, on the 17th day of January last past, was, and who had “been actually imprisoned for sixty days and upwards in a civil “ action; and application was made to me by Benjamin Birdsell, “ a creditor of the said insolvent, for relief, he being apprehen- “ sive that the estate or effects of the said insolvent would be “ wasted or embezzled, and upon such application, the said cred- “ itor did make affidavit according to law, that the said insolv- “ ent was fairly indebted to him in a certain sum of money then “ due and specified in said affidavit, and not less than $25,00, “ and that the said insolvent, was then in prison on execution “ against him in some civil action, and had been so imprisoned for “ sixty days and upwards; and the said Richard Riker didbhere- “ upon order a publication to be made, as directed by law, for “ all the creditors of the said insolvent to show cause, if any they u bad, before me, at my office in the City Hall of the said City, “ on the 4th day of April then next, at ten o’clock in the fore- “ noon, why an assignment of the said insolvent’s estate should “ not be made for the benefit of all his creditors, according to «the directions of an act of the legislature of the state of New- “ York, entitled, an act for giving relief in cases of insolvency, pass- “ ed the 12th day of April, 1813, which said notice having been “ duly published, and I the said recorder, on the 4th day of April, “ being satisfied that so many of the creditors of the said insolv- “ ent, as had debts owing to them to the amount of two-thirds “ in value of all the debts owing by the said insolvent, requested “ such assignment to be made of the estate of the insolvent for “ the benefit of all his creditors, and no sufficient cause to the “ contrary appears — I did therefore direct such assignment to “ be made, according to the directions of said act, to Joseph D. “ Fay, assignee nominated by the said creditors, and the said in- “ solvent having produced to me a certificate under the hand “ and seal of the said assignee, executed in the presence of two “ witnesses, on the 5th day of April, that the said insolvent had “ granted, conveyed, assigned and delivered for the use of all “ his creditors, all his estate, real and personal, both in law and “ equity, possession, remainder or reversion, the wearing appar- “ el and bedding of the said insolvent and family excepted, and “ all the books, vouchers and securities relating to the same; “ and the said insolvent having conformed in all things, as by “ the said act directed, in order to entitle him to a discharge from “ all his debts: — Now, therefore, Know ye, that I, Richard Ri- “ her, recorder of the City of New-York, by virtue of power and “ authority in me vested, do hereby discharge the said insolvent “ from all debts due at the time of the said assignment, or con- “ tracted for before that time, though payable afterwards, and “ also, if imprisoned, from his imprisonment. Given under my “ hand and seal at the City Hall of the City of New-York, the “ 5th day of April, in the year of our Lord, 1817.</p> <p>R. Riker. [l. s.]”</p> <p>and that the several causes of action in the plaintiff’s declaration mentioned, if any ever did accrue, accrued before the said Thomas Herring became an insolvent debtor as aforesaid, and before the making of the discharge aforesaid by the said Richard Riker, recorder as aforesaid, and that the said Thomas Herring, in the said discharge mentioned, and the said Thomas Herring, defendant in this said suit, are one and the same person, and not other, or different; and will also give in evidence, the aforesaid act of the legislature of the state of New York.</p> <p>By Foote and Adams.”</p> <p>On the trial below, the plaintiffs having proved the execution of the notes declared upon, the defendant offered evidence to prove the several matters contained in his special notice. To this the plaintiffs objected, on the ground that the said statute of the state of New-York was in violation of the tenth section of the first article of the constitution of the United States, and that the said act and discharge of the defendant under it, were therefore void. The county court sustained the objection, and rejected the testimony; whereupon the jury returned a verdict for the plaintiffs, and the court rendered judgment thereon.</p> <p>It was to reverse this judgment, that the present writ of error was brought.</p> <p>Foote & Adams, for the plaintiff in error. — The error assigned is, that the county court, on trial of the cause, Selding vs. Herring, rejected the discharge of Herring, regularly obtained under the insolvent law of the state of New-York, passed April 12th, 1813, offered in evidence under a notice for that purpose.</p> <p>By the 8th section of the 1st article of the constitution of the United States, authority is given to Congress “to establish uniform laws on the subject of bankruptcies throughout the United States. But this authority, until exercised, does not take away the right of the state legislatures to pass insolvent laws, or even bankrupt Jaws. [4 Wheat. 195. Sturges vs. Crowningshield.il This construction of the U. S. Constitution has been recognized by the legislatures and courts of most of the states, for more than thirty years, and sanctioned by congress. — See Bankrupt Law of 1800, sec. 61. — Gr afilón’s Dig. p. 36.</p> <p>The insolvent law of the state of New-York, passed April 12, 1813, does not, in this case, impair the obligation of contracts within the meaning of the 10th section of the 1st article of the United States’ constitution. — The contracts in question were entered'into subsequent to the passage of, the New-York insolvent law, by citizens cf that state, and the contracts must be supposed to be made in reference to the existing law, and subject to its provisions.</p> <p>No case similar to the present has been decided.</p> <p>In the case of Sturgis vs. Crowningshield, 4 Wheat. 122, the insolvent law under which the discharge was granted, was passed subsequent to the making of the contract, and the parties were not citizens of the same state. The court, in giving their opinion in this case, expressly confined it to the case under consideration. — 4 Wheat. 207.</p> <p>The supreme court of'the state of New-York, in the case of Marther vs. Bush, 16 Johns. 233, decidéd that the case of Stur-gis vs. Crowningshield did not apply to a case where the contract affected by the discharge, was made subsequent to the passage of the law under which the discharge was granted, and by citizens of the same state where the contract was made.</p> <p>In the case of McMillin vs. McNeil, 4 Wheat. 209, the contract was made in South Carolina, where the parties resided at the time of entering into it, and the discharge of McMillin was granted under the insolvent law of Louisiana, the contract not having been made under the law or in reference to it.</p> <p>In the case of the Farmer's & Mechanic’s Bank vs. Smith, 6 Wheat. 131, the law under which the discharge was granted was Passed subsequent to the making of the contract. So in the case of Post vs. Riley, 18 Johns. 54.</p> <p>Thompson & Van Ness, for the defendant in error, contended,</p> <p>1. That the evidence offered by the defendant below, now plaintiffin error, was properly rejected by the Gourt.</p> <p>The notice accompanying the plea in the court below, was not sufficiently particular. A notice must contain all the substance of a special plea, and state the special matters with the same precision. The statute authorising the notice, dispenses with the form, but not the substance of a special plea — Stat. 88, § 98. — Barney vs. Cady, 1 D. Chip. Rep. 304. — Bowdish vs. Peck-ham, ib. 144.</p> <p>The notice did not set forth the statute of New-York, or any of its provisions. When a party relies upon any proceedings under a statute of another state, he must set it forth, that the court may see whether the proceedings were authorised by such statute. The general allegation, that the proceedings were pursuant to the statute in such case made and provided, is not sufficient. —Walker vs. Maxwell, 1 Mass. Rep. 104.</p> <p>2; The discharge under the insolvent law of New-York was no bar to the recovery of the plaintiff below; such law, so far as it discharges the property of the debtor, being unconstitutional and void. — Sturges vs. Crowningshield, 4 Wheat. Rep. 122. — Post vs. Riley, 18 Johns. Rep. 54.</p> <p>And it makes no difference, whether the notes were executed prior, or subsequent to the passage of the law. — McMillm vs. McNeil, 4 Wheat. Rep. 209.</p> <p>Nor does it make any difference that the discharge was under the law of the state where the contract was made, and of which the plaintiff and defendant were both citizens at the time of making the contract, and of the discharge. — Farmer’s & Mechan-icks’ Bank vs. Smith, 6 Wheat. Rep. 131.</p>

MOTION by the plaintiff, for a new trial, founded on exceptions,taken on the trial at the last term of Chittenden county court, which were agreed to by counsel, and certified to this Court in the following case made:— “This was an action of ejectment, brought to recover the possession of a certain tract or parcel of land, with the appurtenances, lying and being in the town of Hinesburgh, in said county of Chittenden, and described as follows, to wit, the east half of lot No.…

THE action below was an action of trover for a horse, which was brought by appeal from a justice of the peace, to Franklin county court. On the trial there, the plaintiff below recovered ajudgment, whereupon the defendant below tendered the following bill of exceptions, which was allowed by the judges, and made a part of the record ; but the deposition therein referred to, was not embodied in the record.

HABEAS CORPUS. — On the first day of this term, Uriel C. Hatch preferred his petition to this Court, representing that he was unlawfully restrained of his liberty in the common jail of Windham county, by Paul Chase, Esq. sheriff of said county, and praying that a writ of habeas corpus may issue to the said sheriff, forthwith to bring said Hatch before the Court, with the cause of his commitment.

THIS was an appeal taken by the heirs to the estate of Jonathan Grout, deceased, from a decree of the probate court for the district of Essex, allowing the administration accounts of Hutchins Hapgood, Esq. the executor of the last will and testament of said Grout. The deceased was, in his life time, an inhabitant of Massachusetts, and died there, leaving a will. He had been occasionally in Y ermont, and owned lands and had debts and credits there.

JOSIAH KING being indebted to William C. Harrington and Thadeus Tuttle, by sundry notes, in the sum of $1016, to secure the payment of said sum, on the first day of March, 1808, mortgaged to them certain lands in Burlington.

<p>INn CHANCERY.</p> <p>The orator having mortgaged his farm — pending his equity of redemption, which had been limited by a decree of Court, the defendants levied two executions in their favour, on a part of said farm, and caused so much thereof to be set out, as would, in the opinion of the appraisers, amount to the sum of their executions, together with the mortgage money. They then procured an assignment from the mortgagee, of his interest in the premises, to a stranger, and from him to themselves, which, after the equity of redemption had expired, they caused to be recorded, and brought ejectment against the orator for the whole farm. The orator thereupon brought his bill in chancery, praying that the defendants might be perpetually enjoined from all proceedings by virtue of the assignment ; that the consideration of the assignment be deemed a satisfaction of the mortgage, and that the defendants be decreed to release to him all the land assigned to them, not embraced in the levy of their executions. On demurrer, held, that he was not entitled to the relief sought.</p>

THE action below, which wwas debt, for a penalty of $70 under the act regulating marriage and divorce, was originally commenced before a justice of the peace, and was brought by appeal to Franklin county court, where the plaintiff filed the following declaration:— And now the said, Joseph Ellis in court, complains and declares against the said Samuel P. Hull, in a plea that to the said Joseph the said Samuel render the sum of seventy dollars, which to the said Joseph the…

<p>The commitment of a delinquent sheriff to prison, upon a treasurer’s extent, does not lay a foundation for a scire facias against the sureties of such sheriff, under the act entitled “An act in addi tion to and amendment of an act, entitled “An act constituting the Supreme Court of judicature, and county courts, defining their powers^ and regulating judicial proceedings)” passed November 7,1809.</p> <p>And, so long as such delinquent sheriff remains in prison, there seems to be no further remedy for Hie state, provided by statute.</p>

THIS was an appeal from a report of commissioners. Stevens, the deceased, on the 19th of January, 1819, was appointed guardian to one Nancy Brewster, and gave a bond to the judge of probate, conditioned for the faithful performance of the duties of said trust, which Jones signed, as surety.

THIS was an action of assumpsit, on a promissory note of the following tenor, to wit, ' Jericho, April 18, 1814. “We jointly and severally promise to pay Truman Barmy ten thousand feet of good merchantable pine boards, on the first day of October, 1819, at the saw-mill by us hired of said Barney. (Signed,) samuel bliss, ELIAS BLISS, ■IRA BLISS.

ERROR, to reverse a judgment of Franklin county court. The action below was trespass for taking a horse.

THIS was an action on the case, for a neglect of the defendant’s deputy, in not returning an execution of the plaintiff, within the life, whereby the bail on the plaintiff’s original writ were discharged.

<p>SCIRE FACIAS upon a recognizance, for tbe prosecution of a writ of error.</p>

<p>THIS was a motion by the defendant, for a new trial, founded on exceptions taken at the trial below, and which appear in the following case, as allowed and certified up, for the final decision of this Court.</p> <p>This was an action of trespass, for taking a quantity of white oak and white ash plank, and other timber, at Sheldon, on the first day of March, A. D. 1826.</p> <p>Plea, the general issue.</p> <p>Levi Hapgood, a witness; testified, that one Wyllis Redjield, then of said Sheldon, sold, as he understood, to the plaintiff, the plank and timber mentioned in the declaration, which were then in the shop, occupied by the said Redjield, and also some other timber at the barhhouse of the witness,- that the plaintiff afterwards came to the barhhouse and took away the timber from the barhhouse, and then said Redjield told the plaintiff the rest was in the shop, and he would leave the key of said shop with the witness, Hapgood, or with one Elisha Ganson, so that the plaintiff could come and get the plank and timber when convenient.</p> <p>Elisha Ganson, a witness, stated, that Redjield told him he had sold the timber to the plaintiff, and had received a note against one Freeman, of about ten dollars, and the plaintiff’s note for something more, in payment of the plank and timber; and that he was to leave the key of the shop with him, Ganson or Hap-good, so that the plaintiff could get the same when convenient; and that Redjield did leave the key with him, Ganson, when he went away, as he agreed ; and that Marvin called upon him for the key, and the witness let him have it, supposing he called for the plaintiff.</p> <p>Warner, a witness, testified, that Redjield told him and his brother, that he had sold the timber and plank to the plaintiff.</p> <p>The taking of the plank and timber at the shop, was admitted by the defendant.</p> <p>On the part of the defendant, John Lamed testified, that he had some conversation with the said Redjield, about purchasing said plank and timber, and in a second conversation with said Redjield, he, Redjield, told the witness, that he had sold the plank and other timber, to the defendant.</p> <p>Roswell Hulbert testified, that he was present at the shop, and heard Redjield and Marvin conversing about the plank and other timber, and they were then bargaining about the same. Redjield was offering to sell to the defendant, and that defendant wished to buy. The witness heard Redjield ask Marvin if he C0UW take away the plank at that time. The defendant said he could not, as he had a load. On the day before Redfield left Sheldon, he was at the house of the witness, and then Redfield £0]¿ him he jmi so]d the plank and other timber to Marvin, and could not otherwise dispose of the same.</p> <p>The Court thereupon gave in charge to the jury, that if they believed all the testimony on both sides, they ought to find a verdict for the plaintiff; for the purchasing by him, his paying as mentioned, and the agreeing to leave the key and the leaving it, and the plaintiff receiving what was at the barlchouse, amounted to a delivery as against Marvin; that nothing appears that filarmn paid any consideration for the timber, and his obtaining the possession, as testified, was no 'delivery as against the plaintiff. To which decision and charge, the said Marvin excepted, &c. v</p> <p>Burt having been heard in support of the motion,</p> <p>Brown, contra, rose to reply, but was stopped by the Court.-</p>

THIS was a writ of error brought to reverse a judgment of Franklin county court, rendered upon and approving a report of auditors in an action on book account.

THIS cause came before this court on a motion of the plaintiff, that the judgment of the county court against him be reversed, and for a new trial, founded on exceptions taken at the trial below, and allowed and certified to this court, for their final decision thereon, as follows: Ejectment for lands in Swanton, being all that part of the lot, No. 88, situate west of the stage-road, leading from St. Albans to Swanton. Plea, not guilty, and issue thereon.

WILLIAM RANDALL was indicted by the grand jury within and for the county of Franklin, at the special term of the county court for said county, begun and holden on the 14th day of November, 1826, for counterfeiting bank bills of the Bank of the United States, and also for Having in his possession the same counterfeit bills, with an intention to utter, pass and give them in payment, knowing them to be counterfeit. The indictment contained four counts.

MOTION by the defendants, that a judgment of Franklin county court against them be reversed, and a new trial granted.

THIS was an action of debt, to recover of the defendant a penalty of seventy dollars, under the act regulating marriage and divorce, for having joined in marriage a minor daughter of the plaintiff, of the name of Betsey, and one James Peters, jr. without a publication of the intention of such marriage.

EJECTMENT for lands in Sheldon. The plaintiff, on trial in the county court, having shown title in himself, and possession in the defendant, so as prima facie to entitle him to a verdict, rested his cause.

ERROR, to reverse a judgment of Grand-Isle count}' court. The action below was trespass, for taking a hog, originally commenced before a justice of the peace, and brought by appeal to the county court.

ERROR, from Grand-Isle county court The grounds of the errors relied upon were, 1st That the court referred the cause to an auditor, notwithstanding it was an action on book account, originally commenced before a justice of the peace. 2dly. That the court appointed Joel Allen, one of the judges of the same court, to be the auditor.

A new trial having been granted in this cause, by this Court, at their February term, 1826, on the motion of the appellees, the same was had before a jury, at the last June term of Orange county court, and a verdict returned, “that the pauper was duly removed.” On this last trial, exceptions were taken by the appellants, which appear in the following case, placed upon the record by the agreement of the parties, viz: “This was an appeal from an order, made by two justices of…

THIS was a motion for a new trial, by the defendant, founded on exceptions taken at the trial below, and certified to this court as follows : Action of debt to recover the penalty of five dollars, given by the fourth section of the statute, entitled “an act to promote tbe breed of sheep, and preserve the different breeds distinct.(d) Plea, nil debet, and issue joined thereon.

<p>MOTION by the plaintiff, for a new trial, founded on exceptions taken at the trial below, and certified up by the county court, as follows:</p> <p>This was an action of assumpsit, brought by the said Truman Chittenden, as the survivor of Giles Chittenden and Giles T. Chit-tenden, late partners, under the firm of Giles T. Chittenden & Co.</p> <p>[The declaration contained two counts; one for money had and received, and one for money paid, laid out and expended.]</p> <p>On the trial of the cause, the plaintiff offered in evidence the-following order, to wit, Messrs. Giles T. Chittenden & Co. Please to pay Hollister & Guindon, or order, fifty pounds Halifax currency, three days after date, for value received.</p> <p>(Signed) Daniel Hurlburt.</p> <p>St. Johns, June 21, 1817.</p> <p>Accepted, June 21, 1817. G. T. Chittenden & Co.</p> <p>Received the within, June 23d, 1817, by part of Gage’s draft on Mr. Josh. Whitney, of Quebec, at thirty days sight.</p> <p>Hollister & Guindon.</p> <p>The hand-writing of Daniel Hurlburt, of Giles T. Chittenden, and Hollister & Guindon, was admitted.</p> <p>This was the only evidence offered by the plaintiff, in support of his claim.</p> <p>After this evidence was offered and read to the jury, the defendant’s counsel moved for a nonsuit, and the Court being of opinion, that the evidence offered by the plaintiff was not sufficient to support his claim, directed a verdict for the defendant.</p> <p>To which decision of the Court the plaintiff excepted, &c..</p> <p>Adams, in support of the motion. The order drawn by the defendant was proper evidence to show, that the money was paid at the request of the defendant. The liability of the acceptor is not on the ground that he has funds of the drawer, for he is equally liable on an accommodation bill. Every contract must be founded on some consideration; and there is nothing in the law relative to bills of exchange, to render the case of an acceptor an exception. The consideration to charge an acceptor, is the liability of the drawer to pay him the amount of the acceptance, as money for his use.</p> <p>But it is said, that a suit will lie in favour of the drawer against the acceptor. But no case can be found, unless it be when the bill is payable to the drawer, and expresses to be for value received.</p> <p>If the acceptor was liable to the drawer as such, the bill might be given in evidence on the money counts, which cannot be done. — 2 Phil. Ev. 31. — 3 Camp. 101, Thompson vs. Morgan.</p> <p>If the acceptance is on the ground of funds, it is in the power of the drawer to show it; but the acceptor cannot prove a negative.</p> <p>If Hurlburt had funds ini Chittenden’s hands at the time of the acceptance, they will not be affected by the judgment in this case, but may be drawn out by suit. If the acceptance is evidence of funds, it is not evidence of a specifick debt, nor of payment upon a particular debt; and if evidence only of payment generally, could not be allowed without a plea in offset.</p> <p>If it is good evidence upon a plea in offset, it is equally good in this suit.</p> <p>Bayley and Foote, contra. The general question which the case presents for consideration, is, does the acceptance of a bill of exchange import value received of the drawer, or, in other words, that the drawee has funds of the drawer in his hands, to the amount of the acceptance ? If such be the legal import of an acceptance, it follows, that the acceptor cannot maintain an action against the drawer for money paid to his use, without actual proof that the drawer had not effects in his hands, and that he accepted the bill for the honour and accommodation of the drawer.</p> <p>To determine this question, it will be necessary to consider the relation which subsists between the parties to a bill of exchange, more particularly the drawer and the drawee or acceptor, and to ascertain their respective rights and liabilities.</p> <p>A bill of exchange is defined to be an open letter of request from one person to another, desiring him to pay, on his account, a sum of money therein mentioned, to a third person. And says Mr. Chitty, “it is consequently an assignment to the payee of a debt due from the drawee to the drawer. — Chilly on bills, p. 2.— 5 Wheaton, 282, 285, Manderville vs. Welch.</p> <p>In Stock vs. Mawson, 1 Bos. and Pull, 291, Heath, J. says, “a bill of exchange is nothing but an order on the drawee to pay so much out of the effects of the drawer in his hands, and the acceptance is evidence in law, that the acceptor has such effects." In the same case, Buller, J. remarks, “supposing (as we must) that these bills (of exchange) were drawn for value, until the acceptors pay them, they are indebted to the drawer to their amount. See also 3 Term R. 182-3, Vine et al. vs. Lewis etal. — 17 Johns. R. 248, Woolcdtt vs. Van Santvoord_2 Ph. Ev. 26.</p> <p>The reason given for the introduction of bills of exchange, and the instances put by the elementary writers, to illustrate their nature, suppose that the drawee is the debtor of the drawer, and clearly show, that the acceptance is an undertaking by the drawee, to pay the amount of the bill, that is, so much of what he owes the drawer, to a third person — Kyd on Bills, 156.— 2 Black. Com. 466.</p> <p>So, on the presentment of a bill for acceptance, the drawee is allowed sufficient time (usually twenty-four hours) to examine the state of his accounts with the drawer, and to ascertain whether he has effects in his hands, before he accepts. — Chitty an bills, 212 — Bayley on Bills, 139.</p> <p>The maker of a promissory note stands, after endorsement, in the same relation to the endorsee, which the acceptor of a bill holds to the payee. Says the endorser to the maker, “pay the contents of this note to A. B.” and the drawer directs the drawee to pay the money or effects of the drawer in his hands, to C. D. (Kyd on bills, 35.) In both cases, there is a transfer or an exchange of a pre-existing debt.</p> <p>The rule which requires notice of the dishonour of the bill to be given by the holder to the drawer, is founded upon the legal presumption, that the drawee had effects of the drawer in his hands. (Chitty on bills, 150-1. — 1 T. R. 410, Bickerdilce vs. Bollman.) It is to enable the drawer to recover the funds, before the drawee becomes insolvent. — 3 Campb. R. 282, Collott et al. vs. Haigh.</p> <p>So far are the acceptance and payment from being, of themselves, sufficient to support an action in favour of the acceptor against the drawer, that, if the bill, after acceptance, returns to, and is taken up by the drawer, he may recover the amount of it of the acceptor, unless the latter can show that the drawer had no funds in his hands. — 2 Philip's Ev. 31-2. — Chitty on bills, 252_7 T.R. 672, Cowley vs. Dunlap. — Peake's Ev. 221-2. —1 Selwyn, JV. P. 286 — 2 Bro. P. C. 43.</p> <p>If the drawee, without effects in his possession, accept and pay the bill for the accommodation ol the drawer, he may, upon Pro°f °f the want of funds, maintain an action against him lor the sum paid. But, in as much as in consideration of law, the acceptor, qua acceptor is not the creditor of the drawer, but, on contra^ is his debtor, it is incumbent upon him, if he would avaij himself of a want of funds, as a ground of defence in an action by the drawer against him, or as the foundation of a claim against the drawer, to make positive and direct proof of the fact.</p> <p>The legal presumption, that the acceptance was for value, must, in all cases, be rebutted by the acceptor.</p> <p>The defendant, therefore, insists that the charge of the court in this case, was conformable to law, and that a new trial ought not to be granted.</p>

<p>THIS was a bill in Chancery, to foreclose the equity of redemption in certain lands in Milton. The case was, one Edmund Lamb, Jr. gave to Phelps Smith a mortgage of the land in question, dated the 14th of October, 1818, to secure two notes of the same date; the first for $54^45, payable in one year, and the other for $357,02, payable in two years from the date.</p> <p>Phelps Smith gave a deed of assignment to Bertram R. Nichols, dated 20th September, 1819.</p> <p>Edmund Lamb, Jr. deeded to Samuel Holgate, Jr. the 22d of December, 1818. Amasa I. Brown attached the same land by two writs of attachment against Samuel -Holgate, Jr. on the 30th August, 1819 ; which actions are now pending in Franklin county court.</p> <p>The defendant, Holgate, alleged usury in his answer, and the orator traversed the answer.</p> <p>To prove the usury, Holgate took, among others, the deposition of the said Edmund Lamb, Jr.</p> <p>To the reading of the evidence of Lamb, the orator objected,</p> <p>1. Because he is not competent to invalidate his own instrument.</p> <p>To this point, the counsel for the orator cited 6 Mass. 449, Widgery vs. Monroe. — 1 Term, 300, Walton vs. Shelly.-1 N. Y. Dig. 441, Sec. 430. — Ibid. 424, Sec. 274. — -14 Johns. R. 270. — 4 Mass. Rep. 162, Churchill vs. Seeton. •</p> <p>2. It was objected, that the testimony of Lamb ought tobe excluded, on the ground of interest in the witness. That Lamb had sold the mortgaged premises to Holgate, for the sum of $1800, and the amount of these notes were deducted from that sum, and left for Holgate to pay to Smith; and it was insisted, that if Lamb could lessen that sum, it laid a foundation for an equitable action in his favour against Holgate, for the same amount.</p> <p>It appeared also, that Lamb had attached the same mortgaged premises on a writ in his favour against Holgate, expecting to hold, subject to the mortgage from himself to Smith: and it was insisted, that he therefore had an interest in lessening the amount of that mortgage.</p> <p>Thompson, for the defendants, in answer to the first objection, insisted that it was not supported by authority or principle. That the first, and indeed the only direct English authority, is the case of Walton vs. Shelly ; and this case was not only unsupported by precedent, but was in principle, in direct contradiction to the case of Abrahams vs. Bunn, 4 Burr. 2251. It is virtually contradicted by the case of Bent vs. Baker, 3 Term Rep. 32, and wholly so, by the case of Jordaine vs. Lashbrook, 7 T. Rep. 601.</p> <p>That the practice at Nisi Prius had been a uniform denial of the doctrine, [l Esp. Rep. 298. — 4 Taunt. Rep. 464. — 5 Esp. Rep. 119. — 13East's Rep. 175.- — 1 Esp. Cas. 176. — 1 Campb. 177, 180.</p> <p>To the second objection it was answered, that whatever interest Lamb may have in defeating the notes to the orator, that interest cannot be affected by the event of this suit, because, should the orator fail to recover, he may still pursue his remedy on the notes against Lamb, and the judgment in this suit would be no bar to a recovery.</p> <p>That Holgate, having discharged Lamb from his liability on his covenants in the deed, is left to meet the incumbrance in his own way, without subjecting himself to any claim on the part of Lamb, in case he is successful in the present defence.</p>

EJECTMENT for land at Middlebury Falls. Upon the trial, the plaintiff offered in evidence, in support of his title to the demanded premises, a deed from Stillman Foot, dated December 8th, 1801, and proved that the intestate had afterwards entered upon a part of the premises described in said deed, (to wit,) the piece of land described in the plaintiff’s declaration, and had, in 1820, erected a building thereon, which building the intestate continued to occupy up to the…

THIS cause came before the Court on a motion by the plaintiff, for a reversal of the judgment of the county court, and for a new trial, founded on exceptions taken at the trial, and certi-. fied up, as follows: This was an action of ejectment, to recover the seizin and peaceable possession of a certain tract of land, lying in the town of Addison, being part of lot of No. 160, of the second division of the right of Christopher Holmes. Plea, the general issue.

THE respondents were indicted for a riot, and rescue of a canal boat, called the Champlain, from the custody of Stephen Haight, Esq. sheriff of the county of Addison, who had attached the same, on a writ in favour of one Johnson against the said Willard Daggett and one Caleb Daggett.

ASSUMPSIT, for goods sold and delivered, and for money had and received. Plea, the general issue.

MOTION by the defendant for a new trial, founded on exceptions taken at the trial below, and certified to this court as follows: — The cause was trespass, quare clausum fregit. On the trial, it appeared in evidence, that the lot in question was a wood or timber lot, and that no enclosure was made thereon.

ERROR from Addison county court. The action below was assumpsit, for work and labour, care and diligence, &c. and for money had and received. Plea, the general issue.

ASSUMPSIT, on a prommissory note, for the sum of oné thousand dollars and the interest. Plea, the general issue. The case was, the plaintiff and defendant had entered into á written contract for an exchange of certain real estate, and thé note was given on that occasion, by the defendant to the plaintiff, for the difference money agreed to he paid, between the two parcels of real estate.

THIS was a motion for a new trial, founded on exceptions taken at the trial of the issue before this Court, at the February term, 1825.

ERROR, from Rutland county court. The action below was account. The auditor, having returned the account into court, with a statement of the balance by him found due the plaintiff thereon, continued his report as follows:—“On the trial of this cause, the defendant admitted the account of the plaintiff to be correct, except the charge of 65,00 paid Henry Hodges.

THIS cause came before the court on a motion by the plaintiff to set aside a non-suit, by him entered at the last term of Rutland county court. It was predicated upon the following case, agreed upon by the parties, and with the record certified to this Court. This was an action of ejectment, commenced 3d of April, 1824.

THIS was a petition for a bill of divorce a vinculo matrimonii, for the cause of adultery.

AT the last term of Rutland county court, the respondent was indicted and tried for an assault, with an intent to commit murder. On the trial, the jury under the direction of the court, found him guilty of the assault, but not guilty of the intent.

THIS cause came before the court, on a motion by the plain- ' tiff for a new trial, founded on exceptions taken at the trial in the county court, and which were certified to this court as fol-fows: Action of trespass quare clausum fregit.

<p> IN CHANCERY. </p> <p>The equity of redemption, in ordinary eases, one year and seven days.</p>

THIS was an appeal from an order of two justices, removing one Antis Briggs, a pauper, from Stamford to Whitingbam.

<p>PETITION for a bill of divorce. The cause assigned was Impotency.</p>

THE material part of the record, as set out in the writ of error, is that on the 18th day of November, 1822, a rule of reference, on the application of the parties, was made between them, by A. Robinson, justice of the peace, returnable to the county court, at the December term, 1822, at which term a report was by the referees made, in favour of the plaintiff, and by the court rejected; whereupon the court proceeded to render judgment for the defendant to recover his costs,…

THIS was an action of trover, for twenty tons of hay, brought by the plaintiff against the defendant and one John Melvin. Held: that a recovery in the action of trespass or trover, against one jointly guilty with others, is a total merger of the cause of action as against all the individuals guilty. “That which was rendered uncertain, is rendered, by the judgment of the Court, certain; that which sounded in tort, sounds in contract, for the cause of action by…

THIS was a motion by the defendant for a new trial, founded on exceptions taken at the trial in the county court, and certified up for the final decision of this Court thereon. The case was assumpsit, for goods sold and delivered. Plea,. non assumpsit, and a verdict for the plaintiff.

MOTION by the defendant for a new trial, founded on excep» tions taken on the trial in the county court, and certified to this Court, in substance as follows: Complaint for bastardy.

<p>IN CHANCERY.</p> <p>Victim — 'Whore a mortgage is conditioned for the payment of several notes, the mortgagee may assign the whole of his interest in the mortgaged premises to an assignee of apart of the notes, leaving no security in the land for a subsequent assignee of the other notes.</p> <p>A. being possessed of Jive notes secured by mortgage, assigned two of them to B. and by deed, transferred and set over to him a corresponding portion of the mortgage, to hold to himself, &c. until B. Bhould be paid and satisfied said notes. And B. on his pait, covenanted in the same instrument, under a penalty of $2000, at any time after said notes should be paid, with the interest and costs, if any, to give up to A. “all and singular all the residue and remainder, without lot or hindrance, or ! molestation, peaceable possession of the premises.” A. afterwards assigned to C. two other of said notes, and transferred to him all his remaining interest in the mortgaged premises. — ZfcZd, that the assignment to B. was not such a contract as enabled him to hold the whole mortgaged premises as a security for the payment of the two notes so assigned to him; but that as against C. he was entitled to a portion of the mortgaged premises, equal in value to the amount of the two notes, &c. and that C. was entitled to the residue; and partition of the premises was ordered accordingly;</p>

<p>THIS was an action of trover and conversion, commenced by the administrator, for goods taken from the intestate in his life time. The cause came before this Court upon the following case made, agreed on by the parties, viz:</p> <p>On the 18th day of March, 1816, the defendant then being a constable of the town of Bennington, served four several writs of attachment, one in favour of Hall & Co. one in favour of John Kane, and two in favour of Russel, Tracy & Co. upon all the goods then in the store of Wm. S. Cardell, of said Bennington, a defendant in said writs, and said goods were receipted by Zacheus Hovey and Aman Rawson, the said Rawson then being a clerk in said store to said Cardell. The goods were then exposed for gaje gaj¿ gj.Qj.g_ ^ <jay or two after the attachments were completed, Cardell made a bill of sale of said goods to the said receipters, who continued the sales in their names until the attachments of Severance hereinafter mentioned.</p> <p>On the 23d day of March, 1816, the defendant having in his hands an attachment in favour of Daniel Rogers against said Cardell, went to the said store in order to serve it upon said goods, and demanded the goods of Hovey and Rawson upon said receipt, but was prevented from serving it, by Hovey, Rawson and Cardell, who locked themselves up in said store, and the writ was afterwards served upon other property of said Cardell.</p> <p>The defendant lived about a mile and a half from the store of said Cardell.</p> <p>On the 25th day of March, 1816, Eraslus Severance, another constable of said town of Bennington, served eight several writs of attachment upon said goods, in favour of different persons, the said Wm. S. Cardell being a defendant in said writs. These attachments were made with the consent of the said receipters and Cardell, and the goods were receipted to Severance by said Hovey and Rawson, and the store continued open, and sales were made until the 20th of May, 1816.</p> <p>On the 20th of May, 1816, the receipters being in failing circumstances, Severance, with their consent, and also with the consent of Cardell, went to the store where said goods were on sale, and at evening took possession of the store, and having the key of the same, began taking an inventory of the goods and putting them into boxes. Severance, with one or two assistants, laboured in boxing up the goods as aforesaid through that night and the next day, and continued in the store until the morning of the 22d of May, when the defendant came with his teams and forcibly took away three boxes of the goods which Severance had put up, but was forcibly prevented by Severance from taking away the residue.</p> <p>The goods remaining in the store on the 20th of May aforesaid, are the same described in the plaintiff’s declaration, and the same which had been previously attached as aforesaid.</p> <p>On the 22d of May, 1816, the defendant and Severance, believing there were goods sufficient to satisfy all the attachments, made an agreement, that they would quarrel no further, and that all the goods, as well those taken away, be Walbridge as the others, should be carried to Moses D. Robinson's store, and if it should turn out that either officer suffered any loss, the other was to bear his equal proportion of the loss so suffered.</p> <p>In pursuance of said agreement, the goods were carried to the store of Moses D. Robinson by the defendant and Severance, and left in his care.</p> <p>The writs, as well those served by the defendant as those served by Severance, were all entered at the June term of the Ben-nington county court, 1816, and all continued to the next term of said court, in December, 1816.</p> <p>On the 2d day of August, 1816, Cardell confessed judgment on all the demands for which Walbridge had attached, before William Henry, Esq. a justice of the peace for the county of Bennington.</p> <p>Within a day or two after the said judgments were confessed, the defendant having in his hands executions issued upon said judgments, obtained an order from the first judge of the county court and a justice of the peace, to raise the posse comitatus, which was raised, and the goods were removed by force, and against the will of Severance, from the store of said Robinson, and on the 16th of September following, were sold at publick auction, by the defendant, in full satisfaction of said executions, and a residue of $157,79 applied upon an execution in favour of Daniel Rogers against said Cardell, issued on a judgment confessed by said Cardell, August 2d,*1816, before said ffm. Henry, Esq.</p> <p>Erastus Severance died September 21st, 1816, and administration on his estate was granted to Matthew Severance, October 5th, 1816. At the December term of Bennington county court, 1816, judgments were rendered against Cardell, on all the writs which Severance had served. Executions were issued December 30th, 1816, and within thirty days from the rendition of said judgments, they were put in the hands of Stephen Robinson, a sheriff’s deputy for the county of Bennington, and within said thirty days, the goods described in the declaration were demanded of the defendant, of Hovey and Rawson the receipters, and of the administrator of said Severance, and they all neglected to deliver any part of them.</p> <p>At the same term of the Bennington county court,nonsuits were suffered in all the suits, for which the defendant had attached.</p> <p>An inventory of the estate of Severance was returned to the probate court for Bennington district, October 5th, 1816, not including any of the property described in the plaintiff’s declaration. The estate was represented insolvent, and commissioners of claims were appointed, who made return to the probate court on the first Monday of June, 1817, and neither of the creditors for which Severance attached, presented any claim against his estate.</p> <p>Hiland Hall was appointed administrator de bonis non, May 3d, 1820.</p> <p>The amount of the sales by Walbridge, September 16th, 1816, is to be considered as the just value of the goods at that time, being the sum of $3,169,71.</p> <p>If upon this case, the Court should be of opinion, that the plaintiff is entitled to the whole or any part of the goods, judgment to be rendered for the plaintiff accordingly, for such sum as the court shall consider him entitled to; otherwise, judgment to be rendered for the defendant.</p> <p>Hiland Hall,</p> <p>TRüman Squires, alfyfor the deft.</p> <p>At the last term, the cause was argued at great length, by Bennett and Everett, for the plaintiff, and by Squier and Davis, for the defendant, and was continued for advisement.</p>

THIS action was brought on the covenants contained in a deed, executed by the defendant to Rufus Conable. The covenants having been assigned to William, Stark, the action was instituted and prosecuted for his benefit, as assignee. The defendant in the first instance, pleaded in bar of the action, a release of the covenants from Conable.

THE original action was a scire facias, brought by said Baxter against said Fletcher, as bail on an original writ in favour of said Baxter, against one Norris. To this scire facias, Fletcher plead in bar, that when Norris was arrested on said Baxter’s writ, he, Norris, was attending a Justice’s court, at Sharon, as a witness for said Fletcher, and had gone from Woodstock there for that purpose only; and this known to said Baxter.

AT the last term of this Court, the issue of not guilty in this action, which is an audita querela, was joined to the Court, and a partial trial had. The cause being continued, the defendant, at this term, moved to alter his plea, so far as to put himself on the country; which the plaintiff opposed, and insisted upon proceeding to trial.

JOSEPH TYLER being indebted to Arad Hunt, in the sum ef $3328 for borrowed money, on the 25th day of June, 1823, executed to him two notes of hand therefor, payable in one year, with interest payable annually.

<p>The question of implied notice of the oxistonce of a prior convoyanco of land, from tho fact of tlioro boing a deed on record, can bo carried no further than where the statute places it — Tho recording, therefore, of an unacknowledged deed, can have no other effect than tho temporary effect which tho statuto has given it.’</p> <p>The covenantor, having previously executed to his mother a life lease of the estate, to talco effect upon failure of his otherwise affording hor a support in his family, and as a member of it, which was recorded, but never acknowledged : — In an action of covenant broken-AcZd, that the mother could not enforce the lease against the covenantee, without showing actual knowlodge in him of Its existence, at the time of his taking the deed; and, that knowledge could be implied noither from tho fact of tho record, or the fact of tho mother’s residing on the premises with the covenant- or, that having previously been her ordinary residence — and consequently, that tho covenantor had not therein brokon his covenant.</p>

THE committee appointed at the last term, in pursuance of the prayer of the petition, having made a report, containing a survey of the contemplated road, and no objections thereto being filed within the time prescribed by the rules of the court, the same was accepted, and the survey established.

THIS was an action of. ejectment for a farm of land in Hart-land. The plaintiff’s writ was dated the 5th day of April, 1826, and served on the 5th of that month.

THIS was a motion by the plaintiff for a new trial, founded on exceptions taken to the opinion of the Court, expressed on the trial below, and which were allowed, and certified to this Court as follows: Action on the case, for harbouring and employing one Aaron Manning, Jr. an indented apprentice to the plaintiff.

MOTION bj the plaintiff, that a judgment of the county court against him be reversed, ánd for a new .trial, founded on exceptions taken and allowed at the trial below, and certified to this Court as follows - The action was trover for a horse.- The cause went to trial upon the general issue. The taking and conversion of the property mentioned in the declaration, by the defendant, was admitted, and that it was the property of the plaintiff.

THE defendant was attached to answer unto the plaintiffs in a plea of the case, for that at Tovmshend, in the county of Windham, on the 17th day of January, A. D. 1826, tbe defendant became justly indebted to the plaintiffs in the sum of fifty dollars, for the use of certain pasture land of the plaintiffs, and the eatage of the grass thereon growing, by them the plaintiffs before tljat time let to the defendant, and at his special instance and request, and by the defendant,…

TRESPASS quart clausum fregit against a corporation aggregate ; general demurrer to the declaration, and joinder in demurrer. The cause was argued at the last term, when Hubbard and Everett, in support of the demurrer, contended, that an action of trespass will not lie against a corporation, and cited 1 Chilty, 65, 66 — Doe vs. Woodman, 8 East. 229 — JBac. Abr. Corp. E. 5 — 2 Term Rep. 672.

THIS action was commenced before a Justice of the Peace, where the defendant obtained a verdict, and judgment for his C0S*:S 5 an The cause was there tried at the September term, 1825, when the plaintiff obtained a verdict, but on motion of the defendant, the court granted a new trial. The plaintiff’s taxable costs then amounted to $57,15.

THIS is an action on the following described note, viz:— “$196,41. Cornish, June 10, 1820. “For value received of Whittlesey & Stone, I promise to pay “them, or order, one hundred and ninety-six dollars and “forty-one cents, with interest, on the first day of October, “1821. (Signed) . lemuel dean.” Defendant admits the execution of the Dote. There was paid and endorsed on the same, Oct. 15, 1822, p6.

THIS was an action on the case for taking water from tbe pent-stock of the plaintiff’s flume, for the use of a falling-mill, &c. The action was tried on the general issue, at the December term of Windsor county court, 1826, and a verdict was entered for the defendant.

AT the June term of the county court, 1826, a verdict was taken in this cause by consent, for the town of Reading, damages $76,71, subject to the opinion of the court, upon the following case agreed upon between the parties.

THIS was a writ of error brought to reverse a judgment of Windsor county court, rendered at their March term, 1824, in favour of Throop & Morgan, against Elias Keyes. The facts appearing in the record, the errors assigned, and the points relied upon, will sufficiently appear from the following opinion of the Court, which was pronounced by

THIS was an appeal from a decree of the probate court for the district of Bradford. Held: that a legislative act against natural justice, must, in itself, be void ; but I cannot think that, under such a government, any court of justice would possess a power to declare it so.” Blackstone says, I vol. 91, if we could conceive it possible for the parliament to enact, that a man should try his own cause, “there is no court…

THE defendant was attached to answer unto the plaintiffs in a plea of the case, for that at the annual meeting of the inhabitants of said town of Newbury, holden at Newbury, aforesaid, in the month of March, A. D. 1823, the defendant was, by the inhabitants of said town, in town meeting assembled, elected and chosen a surveyor of highways in the said town for the year then ensuing — of which said eleciion the defendant was then and there duly notified, and did accept of said…

<p>Dicta.-*A sheriff is answerable civilitcr for all acts done by his deputy undor colour of his office, and may be sued therefor in trover or trespass, or any other, form of action suited to tho nature of,tho case.</p> <p>fWhere personal chattels are attaohed on an original writ, the general property therein remains in the defendant] but the sheriff acquires a special property in tho chattels, defeasable by tho plaintiff’s failing in his action, or neglecting to sue out execution within thirty days after judgment.</p> <p>If final judgment be rendered for tho defendant in such case, the attachment is ipso facto dissolved, tho special property of the sheriff ceases, and with it all lien upon tho chattels, whether for tho expense of keeping or otherwise.</p> <p>Held — That where a sheriff’s deputy attached personal chattels on an original writ, and bailed them to a receipt-man, who converted them to his own use, the defendant in that action after final judgment in his favour» might maintain an action of trover and conversion against the sheriff, and that without any previous demand of the chattels.</p>

THIS was an action f r money had and received, tried at the last April term óf thb county court, and the case comes before this court upon exceptions taken by the defendant to the opinion of that court in admitting the testimony of a witness, and also in the charge to the jury.

MOTION by the plaintiff, that the judgment in this case be ■reversed, and for a. new trial, founded on exceptions taken at the trial below. The motion was argued by O. E. Smith and Wm. Upham, for the plaintiff, and by N. Baylies, for the defendant.

ASA HANSON was attached to answer to Joseph Bachelder, of &c. and William Rea, of &c. in a plea, that to the plaintiffs the defendant render the sum of eleven hundred and fifty dollars, which he owes to, and unjustly detains' from them ; for that whereas certain disputes and differences having arisen, and being depending, between the plaintiffs, in their private or individual right, and the defendant, in his private or individual right, and between the said Joseph, as…

THIS was an action of covenant broken, and several issues of fact joined therein, were tried before Essex county court, at their September term, 1826. Held: bearing a relation to covenants of warranty, was “tenant by homage ancestreal,” and a possession by such tenure drew to it a warranty, that the lord would warrant his tenant in the holding his lands, when the tenant was impleaded for the same.

SYLVANUS BATES was attached to answer unto James Steele, in a plea of the case for that the defendant, at Stanstead, In the province of Lower Canada, to wit, at Guildhall, &c. on, &c. in consideration that the plaintiff would go from said Stan-stead into the town of Derby, in the county of Orleans, for the purpose of attending to an arbitration before E. Paddock, &c. arbitrators, chosen and agreed upon to settle certain difficulties and disputes, together with certain causes…

THE action below was trover for a yoke of oxen. Plea, the general issue; to which the plaintiff replied by way of estoppel, as follows :-~ And the said Lemuel Cook saith, that tbe said Joseph Fry ought not to be admitted or received to plead the said plea by him above pleaded, as to so much thereof wherein he alleges that he is not guilty of the premises above laid to his charge, in manner and form as the said Lemuel Cook hath above thereof complained against him, because he…

THIS case came before the Court on a motion by the plaintiff for a new trial, founded on exceptions taken at the trial be-low, and certified up as follows :— This was an action of debt on judgment, instituted under the statutes relating to absconding or concealed debtors, in which service was made on-, as trustees.

THIS cause came before the Court, on a motion of the defendant, that the judgment of the county court be reversed, and for a new trial, founded upon exceptions taken at the trial below, and certified up to this Court, as follows:— This was an action of debt, on a judgment of the common pleas for the county of. Rcnssellaer, and state of Mew- York, rendered on the 10th day of April, A. D. 1810.

THE trustee, defending for the principal debtor, having pleaded a plea in abatement of the plaintiff’s writ, for that there was fio recognizance for costs, the parties presented the cause before this Court, in the following CASE STATED.

THE defendant was attached to answer unto the in a plea of trespass, for that the said Philander, hereto&repio wit, at, &c. on the 1st day of January, 1819, with forcjLaiadj arms, broke and entered the dwelling-house of the plain!M*R>f which the plaintiff was then and there possessed, and in which-the plaintiff then lived, situated, &c. and assaulted and ill-Velfi ed R. H. then and still the servant and daughter of the pEü%. tiff, and then and there debauched and carnally…

THIS cause came before the Court on a motion for a new trial, founded on exceptions taken by the plaintiff, on the trial of the issue in the county court. Held: that the presumption is in favour of the possession being in conformity to the title, and not adverse. And though the defendant may continue to possess after the levy of an execution or sale at vendue, or otherwise, the possession is presumed not to be adverse.

AT the term of the county court, holden in this county in June, 1825, the auditors appointed in this action, returned into court a report in favour of the plaintiffs. The defendant filed his exceptions to the report, and the county court, on a hearing of the exceptions, set aside the report, and re-committed the accounts to auditors.

<p>THIS was a bill of review, brought to reverse the decree, made in the case Dana vs. Hall and Nelson, reported in Athens' Reports, vol. 1, p. 252, which see.</p> <p>The orator, after reciting the substratum and decree final in that case, and stating that execution in common form had been prayed out on that decree, set down the following, as causes for reversal.</p> <p>1st. The decree purports to have been made at the term of this Court holden at Rutland, on the fourth Monday of February, 1826 ; when there was no such term of this Court holden at that time in the county of Rutland.</p> <p>2d. Your orators say, and hope to maintain, that there is no matter or thing set forth in and by said bill as a foundation of equity for this Court to interfere in relation to said judgment at law, but what the orator in said bill might have had the benefit of, on the trial at law.</p> <p>3d. The orators aver, and hope to maintain, that the subject matter of said bill, and all the matters therein contained, were adjudicated upon and determined by the said county court, at their term in December, 1820, in the judgment by them rendered in the actioq on book there pending in favour the said Dana against the said Hall, and that the said matters and things then determined by the said judgment, cannot be re-examined or inquired into by this Court while the said judgment remains unreversed.</p> <p>4th. That there was error in the determination of the court made in February, 1824, in ordering and decreeing that the demurrer of the said Hall be overruled, and that from the facts set forth in said bill being taken as true, that the said Dana, the orator in that bill, was entitled to relief, as no other order or decree could have been made, except, that the demurrer be overruled; and the question, whether the orator in that bill was entitled to relief, should not have been determined until the proofs were heard.</p> <p>5th. There was error in the decree as drawn up and signed, in decreeing that execution should issue against the said Hall and Nelson for the sums therein specified ; as no such decree was pronounced by the court, or contained in their substratum.</p> <p>6th. There was error in issuing the said execution, the same being against the goods and chattels of the said Hall and Nelson, and for want thereof, against their bodies ; and the practice of the Court of Chancery does not warrant the issuing of an execution in that manner.</p> <p>7th. The relief sought by the bill is different from the relief granted by the said decree.</p> <p>8th. There is error in making any decree before the said James Nelson, mentioned in the'said Dana’s bill and the said Hall’s answer, was made party to said bill.</p> <p>Prayer, that the said decree be reviewed and reversed, and the said execution set aside.</p> <p>Demurrer.</p> <p>The case was argued by fVilliams, for the orators, and by Bates for the defendant.</p>

<p>[See Ante. vol. 1, p. 71.]</p> <p>In an action of account, the examination of tho parties before auditors, relative to the accounts os* hibited, is general, and extends to all circumstances connected with such accounts.</p> <p>Either or both tho partios, in such caso, may, and have a right to bo examined before the auditors^ as to the terms and circumstances under which the goods charged in the accounts were delivered, although it may involve an inquiry into a special agreement!</p> <p>If1 a party pay cash down for goods delivered him, or receive them in payment of a pre-existing debt, so that they never rightfully became the subject of a book charge against him, it is competent for him to testify to that fact. And if both parties are examined as to tho matter, as they may be, it is tho duty of tho auditors to decido upon tho whole examination and proofs, as tho weight of the testimony may require.</p> <p>If an auditor express an opinion upon the facts in the case before his appointment, Unknown to tho-party at the time of his appointment, it would probably bo good cause for setting aside the report; but otherwise, of his expressing an opinion upon a question of law arising in the case; the report, so far as questions of law aro involved, always boing subject to the supervision of the court. And it is the duty of auditors, in all cases, when required, to report the facts and proceedings before them.</p>

THIS was an action of trespass for taking a black mare, and other property described in the declaration. The plaintiff gave no evidence, excepting as to the mare. It was conceded that the property was taken by the defendant, who was a constable, as the property of one Thomas Ramsdell, on an execution in favour of G. IV. Daniels, & Co. dated March 17, 1826.

THIS was an appeal from a decree of the probate court for the district of Fairhavm, allowing the account of the said Palmer Cleveland, as late guardian of the said Hopkins, who had, on inquisition, been adjudged a distracted person.

THIS was an action brought upon the seventh section of the act for the punishment of certain inferior crimes and misdemeanors. The cause now came before this Court on a motion by the defendant, that the judgment below be reversed, and for a new trial, founded on exceptions taken at the trial, and allowed and certified agreeably to the statute.

PETITION by the plaintiff for a new trial, on the ground of newly discovered evidence. The case was argued by Bennett, for tbe plaintiff, and by Sheldon and Robinson, for the defendant.

THIS was a petition for partition of lands in Bennington. The defendants pleaded, That the petitioner had no title, &c. on which issue was joined. On the trial of this issue, by a jury, at the February term of this Court, 1823, the petitioner offered the following evidence, which was admitted. 1. Moses Sage’s deed to Joshua Munroe, dated the 18th day of February, 1806, of one undivided equal fourth part of the premises; consideration, $1040.

THIS was an action of trespass, for an assault and arrest under process signed by the defendant, in 1826, as a justice of the peace in Stamford, in the county of Bennington, by the name of John L. Wilmorth. Plea, not guilty.

MOTION by the defendant for a new trial, founded on exceptions taken at the trial below. The trespass charged in the declaration, was for assaulting and beating the plaintiff, and expelling bim from, and keeping him out of his store.

IRA STEWART was attached to answer unto the plaintiffs, in a plea that he render unto them the sum of five thousand dollars, current money of the United States, which he owes to, •and unjustly detains from them; for that, whereas, the said Ira, heretofore, to wit, at, &c. on the 5th day of October, 1821, by bis certain writing, obligatory, signed with his hand, and sealed with his seal, and ready in court here to be produced, the date whereof is the day and year aforesaid,…

TRESPASS for taking an oxPlea, the general issue, with special notice of a justification, in the levy of an execution, and a sale of the ox under it.