Volume 2 — Caines's Cases

The appellants, on the 11th of Marc/i. 1799, enter. ed into an agreement with Angier Marie Leremboure, and the respondent, by which,… Held: perhaps, with more or less strictness, according to circumstances, to his engagements; so, on the other, the suretyrisk ought not to be increased, or his contract varied to his prejudice. , The latter of these positions has been repeatedly recognised in the British courts, and though most of the cases bearing on this point, were…

This was an action on a valued policy, on the cargo of the American ship Prosper, from New York to Algiers, with liberty to touch at Cadiz. Held: by the return of which, it appeared, that the cargo both on shore and on board, from the heat of the climate and violence of the gale, was deteriorated more than one half, of its original value.

These were two actions on sepárate policies of insurance, on the body and freight of the American ship Prosper, from New-York to Algiers, with liberty to touch at Cadiz. The vessel valued at 5,000 dollars. The facts were exactly the same as in the former suit, apon the policy on her cargo. It was admitted, that the amount of the bottomry was 20,000 marks banco, or 6,500 dollars.

Action on the case, for the use and occupation of a house. One count was on a parol agreement by the defendant with the plaintiff, to take a house of him, which the defendant afterwards refused to occupy^ or pay the rent for. The other, money paid, laid out, and expended, to the.use of the defendant.

Bogeet, in behalf of the defendants, moved for a struck jury in this cause, on an acknowledgment from the attoi ney of the plaintiff of service of notice of the motion, hut this was not accompanied with any affidavit of the importance or intricacy of the cause.

This was an action of trespass commenced before a justice of the peace in the county of Suffolk, under the “ Act for the more speedy recovery of debts to the value of twenty-five dollars.” 1 Rev. Laws, 491. The defendant justified under a plea of title.

The plaintiff had in this cause taken an inquest at the fast circuit, the judge laying it down as a general rulé, that any party might take an inquest, but at his peril. Harison moved to set aside the inquest ou a simple affidavit pf merits.

This was an action on a policy of insurance on coffee, part of the cargo of the ship Arethusa, from Jeremie, in the West Indies, to Baltimore, or Hew York, valued at 20 cents per pound.

Assumpsit by the assignees of a bankrupt for work and labor, care and diligence, about the defendant’s business, with a count for money had and received. The circumstances of the case were simply these: The bankrupt had been supercargo of a vessel belonging to the defendant, on a voyage from St. Croix to Philadelphia, and from thence to Amsterdam, with orders to keep the ship fully insured.

This was an action of trover to recover the value of twenty bales of cotton. The property in question had, on the 29th of December, 1801, been sold by one Rodman to a Mr. John Foley, at a credit of 60 days, and for the ^amount of the purchase Foley gave his note, payable at that period. The goods, however, were not delivered, but continued in the possession of Rodman.

Harison moved to set aside the default, interlocutory judgment, and'all subsequent proceedings, on affidavits of the defendant’s attorney and his clerk, stating notice of retainer served at the office of the opposite attorney, (which was acknowledged to-have been received by a person then iu the office of the plaintiff’s attorney, and acting either as clerk, agent or partner,) and also setting forth service of notice of special bail having been filed, an entry of which, and…

Evertson, on an affidavit not specifying the ground of action, moved to change the venue from the county of Dutchess to that of Ulster. stating a belief, that in consequence of the influence the defendant possess ed in Ulster from his office, a fair and impartial trial could not be had there. He insisted also on the defectiveness oi the plaintiff’s affidavit, in not setting forth the ground of action, and that it ought therefore to be presumed it was not a transitory suit.

This was a motion on the part of the defendant to be discharged from a judge’s order, directing him to be held to bail in 1,500 dollars. The suit was for a libel, in styling the plaintiff “ a late German convict.” The plaintiff, in his affidavit, stated the charge, and declared the same to be false and malicious, without adding any thing more.

This was an action on the case for selling peachum wood for brazilletto. The former worth hardly anything, the latter of considerable value. The defendant had received the wood in question from a house in New Providence, to w'hom he was agent, and in the invoice it was mentioned as 'brazilletto. Ho had also advertised it as brazilletto, had shown the invoice to the plaintiffs, and had made out the bill of parcels for brazil-leito.

UPON a policy of insurance on freight of goods, the defendant relied on testimony, showing that the plaintiff wás informed, prior to making the insurance, that a very severe storm had happened at Norfolk shortly after the sailing of the vessel, which would in all probability endanger her safety, and which circumstance he did not communicate to the defendant.

<p>If a prisoner who has been pardoned on condition of leaving the United States within a limited time, do not depart, and is afterwards taken up for not so doing, he may, z~ its appearing to the court that he was deranged in his intellects, be discharged on condition of departing within the same period from the day of discharge.</p>

THIS was an action on a promissory note in which the plaintiff had duly appeared by attorney, and the defendant pleaded a judgment recovered.

This was an action on a promissory not in which the plaintiff had duly appeared by attorney, and the defendant pleaded a judgment recovered.

<p>This was an ejectment for lands in the county of Onondaga. Upon the trial the plaintiff produced the exemplification of a judgment of this court, in the cause of Levi Barker against the defendant for debt, and entered of the ..term of July, 1800, in which cause the venue was laid in Albany. He further produced the exemplification of a fi. fa. directed to the sheriff of Onondaga, and tested the 9th day of August, 1800, commanding him to levy the debt and costs of the above judgment, and which execution contained an endorsement of being received by the sheriff on the 4th of October, 1800. It also contained a return annexed, in the words following, viz.</p> <p>“ I, Levi Sherman, under sheriff to Elnathan Beach, Esq. late sheriff, deceased, do, in pursuance of the law, and in consequence of the death of the sheriff, return, that the said sheriff sold at vendue, all that farm or tract of land in the town of Pompey, in the said county, in the occupancy of the defendant, some time in January, 1801, and before the 15th, to one Ebenezer Butler, jun. he being the highest bidder, for 26 dollars. That the said Butler did not pay the money for the same; and by order of the said sheriff, I did, on the 22d day of January aforesaid, expose the said land to sale again, and that Joseph Simonds purchased the same for 50 dollars, he being the highest bidder. That the said sheriff died on the evening after the vendue last aforesaid, and before the said writ was returned. And I, the said under sheriff, do make this return this 23d January, 1801.</p> <p>“ Levi Sherman.”</p> <p>The plaintiff further proved that the defendant, at the time of the sale, and at the commencement of the suit, was in possession of the premises. The defendant then moved for a nonsuit, and was overruled. He then offered to prove that the sale to E. Butler, jun. was not a ready *money sale, but at a credit; and that Butler had always been ready to pay, and that the second sale was made at the solicitation of the lessor of the plaintiff, who was the attorney in the original cause, without any notice by advertisement, and on his indemnity to the sheriff, who was then on his death-bed, and incompetent to attend to his business, and that the lessor of the plaintiff knew of the previous sale. The defendant further offered to prove, that the endorsement on the execution was made in May, 1802, at the request of the said lessor; but the testimony was overruled. The defendant then offered in evidence, a deed from the said Elnathan Beach to the said Butler, for the premises, in pursuance of the first sale, bearing date the 7th day of August, 1801, and to which deed was annexed a certificate of proof of the same before a master, by the acknowledgment of the said Levi’Sherman, that he executed the same in the name of the said Beach, and as under sheriff to the same, the said Elnathan being dead, which evidence was likewise overruled, and a verdict taken for the plaintiff.</p> <p>A motion was now made to set aside the verdict, for these reasons 1. That a ft. fa. issuing into a different county than that in which the venue was laid, without a testatum, is void 2. That theji./a. bore test out of termj 3. That there was no deed from the sheriff to the plaintiff; 4. That the return of the sale contains evidence of a void sale; 5. That the evidence offered at the trial ought to have been received.</p>

FROM the pleadings, and cases delivered in this cause, the facts appeared to be these. Livingston, in the years of `96 and `98, borrowed of one Evertson, the two several sums of 3,000 dollars and 2,793 dollars, on mortgage. The clay of redeniption having elapsed, and Livingston being further indebted to Evertson, for interest and some other matters, amounting, with the above principal sums, to 6,222 dollars, .Evertson demanded payment.

This was an action on an open policy, “at and from New-York “ to Curracoa,” on goods shipped on board the schooner Reindeer, and consigned, by the bills of lading, to tbe captain, who bad been, together with the crew, provided by a person to whom the vessel was chartered.

<p>An assignment of part of the subject insured to a belligerant, though after capture, is a breach of a warranty of neutral property.</p>

This was an action' on the usual money counts, to recover a sum advanced to the captain of the defendant’s ship when abroad, and for which the captain had drawn bills upon his owner, who had refused to accept them. *Some time in January, 1801, the vessel sailed from Philadelphia to Port Eepublican, in Hispa-nolia, under a charter party to James Yard, of Philadelphia.

<p>If a plaintiff examine his witness and deliver him over to the defendant to cross-examine, and before any opportunity offer to enable the plaintiff to ask him any questions in explanation, the witness fall down in a fit, and the plaintiff go on to examine other witnesses, and try the cause, the court will not afterwards grant a new trial to give the plaintiff an opportunity of letting in the farther testimony of the same witness. If the defects in a vessel existing previous to the effecting a policy of insurance, be not such as to render the vessel unsoaworthy, though she may demand repairs on her voyage, if she perish in its prosecution, the amount of the repairs required for her anterior defects are not to be deducted from that of the verdict, if rendered for a total loss. If a judge misdirect in one point, which does not go to the merits of the case, according to which the jury decide, the court will not, on that account, order a new trial.</p>

THE appellant being seised of 250 acres of land, on the east side of the Sag/zquate creek, in TY/zitestown, together with a moiety of the soil tinder water, and the respondent, Hugh White, the father, being scised of 300 acres on the west side, with the other moiety of the bed of the creek, entered, in the year 1787, into a verbal engagement, to divert, on their joint account, for the use and purpose of mills to be. erected, the water of the stream to such spot in the…

This was an action of slander for saying of the plaintiff “you have perjured yourself.” The plea not guilty, with a notice subjoined that it would be proved on the trial, that the… Held: agreeably to law, upon the defendant, as a captain, for disobedience of orders. The notice then set forth to what the plaintiff testified, that it was material to the charge in issue, and was not the truth. The cause came on before Mr. Justice Kent, at the Washington circuit, in 1803.

Henry moved for judgment as in case of nonsuit for not proceeding to trial, and also for costs of the last circuit, and those formerly, ordered, on an affidavit, stating a similar motion in a former term, in which the expense of witnesses only was allowed, as the cause had been countermanded by consent; that these costs had been demanded and not paid, after which the cause was again noticed, but neither plaintiff nor his witnesses attending at the circuit, the defendant…

Scott, on an affidavit stating that this cause had been duly noticed for the three last circuits, and that younger issues had been tried, moved for judgment as in case of nonsuit for not proceeding… Held: taken from him by the person from whom he had received them, under a promise to return them before the time the cause would come on.

Soott moved for judgment as in case of nonsuit for not proceeding to trial in the county of Ulster, according to notice, in tbis and several other causes depending on tbe Catskill patent.

Van Veohten moved, on the common affidavit, for judgment as in case of nonsuit for not proceeding to trial, but the affidavit of service stated only that it was made by leaving copies on the table of the attorney’s office, about one o’clock in the afternoon*

Tan Antwerp, on the common affidavit, moved for judgment as in case of nonsuit for not proceeding to trial. stated, that this was one of two.causes depending on tbe same point. That in tbe other, tbe verdict bad been given against tbe plaintiffs, contrary to tbe opinion and charge of tbe judge before whom tbe cause bad been tried, for which reason tbe present suit had not *been brought on, and a case was made in that which bad been heard, and was now before tbe court.

<p>Russel moved for judgment as m case of nonsuit.</p> <p>Blanchard resisted tbe application on an affidavit stating a conversation, which he considered as an agreement to waive the irregularity.</p> <p>Russel wished not to rely on the rule respecting written agreements, could the conversation be substantiated.</p>

Van Antwerp moved for judgment as in case of non-suit for not proceeding to trial according- to notice. that previous to the circuit, arbitration bonds had been entered into by the parties in the suit, and an award made.

Error on a certiorari upon a judgment in a justice's court. From the return it appeared that the action below was brought against the now plaintiff, as the maker of a promissory note for 20 dollars; that after a plea of non assump-sit, the defendant below prayed an adjournment, which being granted, the plaintiff Driggs appeared on the day given.

This was an action brought for the penalty, under the' ninth section of the act incorporating the Columbia turn-”' pike road, for simply riding through a gate without paying toll, without any force or violence. The question was, whether the action was maintainable.

On certiorari, upon a conviction for a forcible entry and detainer. moved to' quash the conviction, and that a re-restitution issue,.for the following reasons: 1. For want of certainty in the description of the premises, they being described only as “ tenements and improvements,” without naming the county in which situated ; 2. Twenty-four persons were sworn upon the grand *jury who found the bill, so that more than twelve were necessary to the finding; 8.

The defendant Rad applied for Lis discharge, under the insolvent act, on the first Thursday in term, but no mea sures had been taken to bring him up till the last day. The plaintiff then moved for time to oppose, on an affidavit, stating that notice of the application had come to him only on the second day of the then August term.

At the last circuit court, held at Salem, in the county of Washington, the defendants had been indicted, • arraigned, and had pleaded not guilty. After this the District-Attorney moved the court for leave to withdraw a juror, which was granted without the defendant’s consent. On a subsequent day they were again brought up, on the same indictment, and found guilty.

<p>Frivolous demurrer. Enumerated motion. Practice.</p>

Assumpsit against administrators. Slosson moved to set aside the judgment obtained in this cause for irregularity, and that the defendants be let in to plead a judgment recovered in the common pleas.

This was an application to be discharged out of custody the defendant having been exonerated from the demand under the insolvent law.

A CASE had been made in this cause for the opinion of the court, but they being divided, no decision was made, and the plaintiff, having entered up judgment on his verdict, sued out an execution. Williams moved to set aside this execution, on an affidavit stating that the application to this court was undetermined. read an affidavit, stating the division of the court, and that by the rules of practice he was there fore entitled to the benefits of his verdict.

This was an application to be paid for the value of improvements pursuant to the provisions of the act of the 5th of April, 1803, entitled, “ An act grafting relief to certain persons claiming “ title to lands in the counties of Gayugu and Onondaga;” that till the improvements were paid for, execution on the writ of possession might be staid, and that the judgment on the verdict obtained might be entered without any costs of increase.

Costs had been allowed to the defendants in the three first of these causes, to 26 dollars and 58 cents, and in the last also, to Gideon King, to 14 dollars and 84 cents, but in the last cause damages had been assessed against Grant to 20 dollars besides costs, an l Cole was unable to pay the costs taxed against him. on an affidavit disclosing the above facts, moved to set off the costs allowed the defendants against the damages and costs recovered by the plaintiffs in the…

<p>This was a case from the Columbia sessions, submitted by consent without argument. The facts were these: Two. justices, on complaint of the overseers of Germantown, had ordered Sarah Bridgend, a negro woman 80 years of age, to be removed to the town of Livingsten, and adjudged her settlement to be there. From this order there was an appeal to the sessions, who received testimony of the declarations of one Philip Rockefellow, that she was formerly his slave, bought in the town of Livingston, and manumitted by him about 16 years ago, but they refused to admit Rockefellow himself, adjudged the negro chargeable to Germantown, and ordered her to be maintained there, reversing the order of the justices.</p>

THIS was a question of costs, by consent submitted to the court. The facts were, that in an action in the common pleas on a bill penal for $ 60 dollars, to secure two instalments, the defendant pleaded non est factum, with notice of setting off a receipt, which was allowed as to one instalment, and left a balance under $ 25 due to the plaintiff. The point was, whether the plaintiff should pay costs to the defendant ?

In this action, wbicb was still pending in tbe common pleas for Saratoga, a motion had been made in tbe court below in arrest of judgment, on wbicb no decision bad been pronounced. The counsel, however, on both sides, agreed to make a ease of it, and submit the matter to the determination of this court.

This was a question of costs by consent submitted to tbe court. Tbe facts were, that in an action in tbe common pleas, on a bill penal for 60 dollars, to secure two instal-ments, tbe defendant pleaded non est factum, with notice of setting off a receipt, wbicb was allowed as to one instalment, and left a balance under 25 dollars due to tbe plaintiff. Tbe point was, wbetber the plaintiff should pay costs to tbe defendant.

Error from the common pleas in Rensselaer county. The suit below was trespass de■ bonis , asportaiis, against a justice of the peace, a constable, and a plaintiff, in a suit before the justice under the 101. act, for taking the goods of the defendant, in an execution on a judgment rendered by the justice. The defendants all joined in a plea of not guilty.

In these actions, which were for libellous publications on the plaintiffs, in a paper entitled “ The Corrector,” judgments had been entered on default, and writs of inquiry executed. and inquisition… Held: and therefore could not act as an attorney where the people are not concerned. On the last point, if the notices be regular, the entry of the judgment may be any time before inquiry executed.

This was an application for a rule on a justice of the peace to amend his return, by inserting the evidence(a) he overruled in a cause before him. Smith read an affidavit showing that the cause had been brought up by certiorari, errors assigned and joinder. He sontended, therefore, the application was too late.

IN error on a bill of exceptions, tendered and sealed at the trial of a cause upon a policy of insurance, on the body of the ship Prosper, in which, Williams, the now defendant, was plaintiff below. The case, as r ’ stated in the 2 Nexv- York Term Reports, from the . . first to the fourth page inclusive, is accurately detailed, in all respects but one.

This was an action on a policy of insurance on the body of the brig Brothers, Brown, master, valued at 4,500 dollars, at and from Savannah, in Georgia, to Martinique.

<p>This was an action for not delivering 220 barrels of flour, according to agreement. On the trial the following appeared to be the circumstances of the case:</p> <p>The plaintiff, through the intervention of a broker, known to be acting for him, about the 18th of January, 1800, asked the defendants if they would sell the above quantity of flour for the note of Joseph Lyon. They replied, they would give an answer if he would call the next day. He called, and produced a note of Lyon’s for two thousand two hundred and fifty dollars, drawn in favor of one John Palmer, and endorsed by him in blank. At the same time the agreement was made by the defendants *to sell, and a memorandum of the sale given to the broker, in this form:</p> <p>“ 220 barls. S. Flour,</p> <p>!< $10 — $2,200'-For Lyon’s note,</p> <p>“ 1 mo. 18th, 1800, “ Merritt & Clapp.” '</p> <p>"When this was done, it was understood that the difference between the note and the value of the flour should be paid by the defendants, but the note was not delivered over to them.(a) Shortly after they met the broker, and asked him why he did not take away the flour; to which he replied, the plaintiff was not yet ready for it. In a few days the broker called on the defendants, and demanded the flour, tendering the note at the same time. The defendants, however, refused to deliver it, alleging, as a reason, that the maker had failed the day before. When the note was thus tendered, whether it was endorsed or not by the plaintiff, did not appear, though at the time of trial his name was on it, but in a great measure obliterated.</p> <p>The declaration contained three counts. The first, on a special agreement, made on the 18th of January, 1800, to deliver 220 barrels of superfine flour, at 10 dollars per barrel, to be paid for in a note of one Joseph Lyon, bearing date the 7th of November, 1799, payable five months after date, with an averment of a tender and refusal, on the 30th of January, 1800. The. second count, on a sale of 220 barrels, &e. to be paid for in a similar' note, in consideration of which sale, and a promise of the plaintiff to pay in such a note, the defendants promised to deliver, with an averment of a tender and refusal.(a) The third count on a sale by the defendants to the plaintiff of 220 barrels of superfine flour, at ten dollars per barrel, with an averment of an .offer to pay, demand and refusal.</p> <p>The general issue being pleaded to all the counts, a verdict was taken for the plaintiff by consent, subject to the opinion of the court, whether it should stand or a nonsuit be entered.</p> <p>Whenever a specific thing is to be exchanged for another thing, after the agreement is completed, the article, that is, as it were, the price of the purchase, is at the risk of the vendor, and the goods sold at that of the vendee. This is a principle both in *the Roman and our law. Just. lib. 3, tit. 24, s. 3, fob 78; 2 Bl. Comm. 446; 449. Exchange is where one thing is to be commuted for another, and such was the case here: a note was to be given for the flour, not money to be paid; therefore, the loss from the note's proving bad(a) to be borne by the defendants.</p> <p>The principles relied on do not apply. The plaintiff cannot recover on either of his counts. The first and second are not maintained by the evidence. The first is on an agreement to pay a certain specific note of the precise sum; the written agreement or memorandum refers to no such note. The second can as little be maintained; it states the sale to be for a similar note: the evidence as, that it was to be paid for in one of 2,250 dollars, and the difference to be paid by the defendants. In Penng v. Porter, 2 East, 2, the court of king’s bench held that a contract to deliver 40 or 50 bushels of wheat, at the option of the plaintiff, must be declared on in the alternative, and not as an absolute contract, though the plaintiff had elected to deliver only forty. That case, and those to which it refers, establish the evidence in this to be fatally variant. On the third count there can be no recovery, for there was not a particle of evidence in its support. Besides these objections, the contract is void under the statute of frauds, for the memorandum or agreement was signed only by one party, and therefore, though obligatory on them, could not be enforced against the plaintiffs: this renders the whole a mere nudum pactum. The cases on stock contracts evince this; for though one may sign, obliging himself to sell, that, without a counter instrument binding the other to accept, creates no bargain. In addition to the authority from East, we rely on the anonymous case from 1 Lord Kaym. 735, and the references there made.</p> <p>The only object of the statute of frauds was to afford written evidence of a contract. Both from the words(a) and the principle of the act, it is unnecessary both parties should execute. If one sign and deliverer over, it is enough ; especially when the person to part with the principal thing, the subject matter of sale, is he who signs. It has been decided, that the mentioning in a letter that a party had agreed to do a thing, is a '^sufficient signing within the statute, though there was no specification of what was to be done.(b) Yin. Abr. tit. Agreement. Therefore, any note or memorandum is sufficient to take it out of the statute. A signature alone will Bot, without consideration, create a contract, it is true; but if a contract is disclosed by the signature, then the consideration may be shown — here it appears. Though a special agreement must be strictly proved, yet that strictness is not a literal strictness, but only as to essential circumstances.</p>

This was an action by endorsees, against tbe executrix and executors of tbe payee endorser, on a joint promissory note, made in New York, by Waring and Medcalf Eden, one of tbe defendants in the suit. The declaration was in the common form, stating a demand on the makers, their refusal to pay, notice to the deceased in his lifetime, his liability thereon, and assumption to pay; but nothing special was alleged.

<p>If after a inortgage be forfeited, and execution sued out, on a judgment recurered on the bond-, aeon%`eyance Lu secure a portion of the mor; gage money, be made of other property, redeemable on paying a certain sum at a future day, such conveyance will partake of the quality of the original transaction, and be deemed a mortgage, and not a defeasible purchase ; therefore, if after lapse of the day, for repayment, the lands conveyed, be sold to a bona fide purchaser, though the' purchase will not be impeached, the gi autor will be entitled to an account, and the sum at which the land was sold; with interest, will be the amount for which he will be entitled to credit, though he did not demand a redemption, for more than six years after the day of repayment. After a judgment, an execution, and sale under a mortgage bond, the court will not open the account on the mortgage, though there be some degree of irregularity ill the accounts, if from the whole, they appear to be fairly closed. Query, if an agreement'1 by a mortgagee, who has bought in the mortgaged premises, to divide with the mortgagor, tlie surplus produce of a resale, after deducting debt and costs, if he will show the best lands, so as to get for the estate a given sum, be a valid agreement; or whether the showing the lands, be a condition precedent; Query.</p>

This was an action on a policy of insurance, on the sbip Catharine, at and from Barcelona to Baltimore. The loss averred to be from arrest and detention by the Spanish ^government, at Barcelona, The depositions of a Mr. Benjamin M.Mumford, examined on the part of the defendants, and cross-examined by the plaintiff, were, on the trial, read by the plaintiff.

In Error, or a certiorari, to a justice’s court, upon a conviction under the 101. act, for selling spirituous liquors without a license.

This was an action to recover the amount of an adjustment on a policy of insurance. The instrument was thus endorsed : “ Adjusted a loss of ninety-eight per cent, payable in 30 days, which the brokers are requested to charge to our respective accounts, and cancel this policy. “ New York, 2d January, 1802.” On the trial, one Gordon, the broker who effected the policy, testified that the adjustment was in the usual form.

<p>The irro~at~ has a discre~. tionary power to elect out of those of the nest of kin to an intestate, any one in a~ equal degree, and grant to such person, sole adminis~ tratiOfl.</p>

This was a case submitted without argument. The lessor’s father gave him, by will, sixty acres of land, being part of a larger lot, and then described the tract devised, by certain courses and distances, one of the last of which was south six degrees, east six chains, or thereabouts. If this last line was to be only six chains, the lessor would not have sixty acres, but by extending it a few chains, be would have that quantity.

THIS was an action of assumpsit, tried before his Honor the C. J. at the Columbia circuit, in July, 1803. The declaration contained the common money counts, and the count for work, labour and services, under which it was agreed that the plaintiff might offer evidence of a special contract.

Assumpsit on a special agreement to pay a promissory note drawn by Jolin Pelletreau, in favor of John Wardell, and by liim endorsed to tbe plaintiffs. Tlie note, on tbe promise to pay which the action was founded, had been *given as collateral security, for payment of an unsatisfied judgment, obtained on a note for a larger amount, of which tbe plaintiffs were bona fide holders made to Charles Brigden, on a.usurious consideration.

<p>This was an action of assumpsit on tbe usual money counts.</p> <p>A verdict was taken for the plaintiff, subject to the opinion of the court, on the following facts:</p> <p>Joseph Coulon, being owner of goods shipped on board the ship Little Martha, on a voyage from Charleston to St. Sebastini, made application to Ealph B. Forbes, his agent at New York, to effect insurance thereon. The terms being agreed on, Joseph Coulon, without the knowledge of tbe defendants, paid to Forbes the amount of the premium, deducting therefrom at the rate of one per cent, per month for the time of credit given by the insurer for the premium, and the insurance was accordingly effected by Forbes, who instead of paying the premium in cash, gave bis note for .the amount, dated 6th October, 1800, payable nine months after date, and endorsed by the defendants in these words: “ Pay the Manhattan Company for the Columbian Insurance Company.” This endorsement was made for the accommodation of Forbes gratuitously, and with a kno wl edge in the defendants of the use intended to be made of the note, in securing the premium, and also without any Knowledge on the part of the plaintiff. The policy wás afterwards assigned by Joseph Coulon to the plaintiff. A loss of the goods insured happened, but the payment of it being contested, a suit was instituted, pending which the note became payable, was protested for non-payment, and due notice given to the defendants. Forbes was discharged under the bankrupt law.</p> <p>The policy contained the usual clause, that in ease of loss, the amount of the note for the premium, if unpaid; should be first deducted. The insurer agreed to pay the loss, but retained the amount of the premium, and paid *to the plaintiff the balance. The attorney for the plaintiff then gave the insurers a receipt in these words: “ Received, 1st April, 1802, of the Columbian Insurance Company, 19,600 dollars, in full, for a total loss on 20,000 dollars, cargo, &c., and I consent that the policy be cancelled.” The note given for the premium was then delivered by the insurers to the plaintiff, with this receipt: li Received of the plaintiff, assignee of Joseph Coulon, being deducted from loss of cargo,” &c.</p> <p>The insurers refusing to endorse the note to the plaintiff, the suit was brought to recover of the defendants the amount of the note.</p>

<p>IN error, upon a bill of exceptions, tendered and sealed on the trial of this cause, at the circuit court, in the city of New-York, in which the now defendants were plaintiffs.</p> <p>The action was on a policy of insurance on the ship Mary-Ann, valued* at 14,000 dollars, “ at and from Charleston to Glasgow, and at and from thence to Philadelphia, or one other port in the United States.” The plaintiffs went for a technical total loss, in consequence of the vessel’s having been stranded on the coast of Scotland, and injured to an extent, which required 7,221 dollars to repair. They gave in evidence a subsequent sale of the vessel at Greenock, on account of those who might be concerned, the purchase by the firm oí. Archibald Campbell Co. and her reparation at an expense exceeding half her value. The defendants relied on their having paid into court the sum of 5,100 dollars, contending, that as the amount of expenditure for repairs, was only 7,22Í dollars, and they were entitled to a deduction of one-third, new for old, they were chargeable with only 4,884 dollars 32 cents, which, not amounting to half the value of the vessel, could not constitute a technical total loss. That, therefore, as they had paid into court, 5,100 dollars, the verdict ought to be in their favour, it being the law, that the allowanee of one-third, new for old,, should be made, before the right of recovering as for a total technical loss, on account of damage sustained under the policy, could arise.</p> <p>The judge, however, at nisi prius, thinking otherwise, the verdict was, under his direction, given for the plaintiffs, and the case now came up on this single question ; whether the underwriter on a ship is liable for a total loss, when the injury she receives from the perils insured against, deteriorate her more than half, without deducting the one-third, znew for old; or, whether the one-third, new for old, must not first be allowed the insurer, and the injury, after that deduction, amount to the half her worth, or more ?*</p> <p>The determination at nisi prizes, was founded on a decision of the supreme court, in the ca.se of Dupuy v. United Insurance Company, in which, from the notes of Kent, Ch. J. it appears the court ruled to this effect.</p> <p>Where the repairs are equal to half the value, and more, the insured have a right to abandon. The rule is general, and has no reference to the distinction of new for old. It is the actual expenditure, or damage which is taken into view, and on the abandonment, the insurer has all the benefit of the repairs. The rule of deducting one-third, new for old, can be applied only in a case of partial loss. Here there was a clear case for abandonment, and the plaintiff must have judgment.</p>

Assumpsit on a policy of insurance, at a premium of 27 1-2 per cent, on tbe cargo of tbe schooner Pour sisters, “ at and from New York to two ports on the coast of Brazil.' The printed warranty respecting illicit trade was obliterated, but at tbe foot of tbe instrument the following clause was written: “ It is warranted, that the said vessel shall have •no contraband goods on board, tbat tbe assurers take all risks of seizure, for, or on account of, any illicit or prohi-ted…

<p>A policy on freight at and' 1,1 from” a foreign port, attaches on the commencement of lading the goods on board. A vessel seized on suspicion of a breach of neutrality is not, from such a sircum stance, to.be held guilty of a breach of neutral conduct. An abandonment is never too late if the loss con- - tiiiue total at the time of the action brought. A demurrer to evidence confesses every fact which the jury could have found from- the evidence. A seizure by a foreign state, of a vessel in a port of that state under a suspicion of a breach of neutrality, is a loss within the clause in a policy of insurance against the restraint of princes, &c.</p>

This case was submitted without argument, and came before the court, on special verdict, containing substantially the following facts: Joshua Pell the elder, of the manor of Pelham, in the county of Westchester, yeoman, the father of the lessor of the plaintiff, was, in his lifetime, seised in fee of the premises in question; and, being so seised, he died on *the 31st day of July, 1781, leaving the lessor of the plaintiff his eldest son and heir at law.

Troven for five hundred bushels of Turk’s Island salt. The defendant and two-others were joint owners of a cargo of sixte.en hundred bushels of salt, one thousand only of which was that of Turk’s Island. The two other partners, being unable to pay their proportion of duties and charges, by the advice and eousent of the defendant, sold their shares to the plaintiffs.

<p>IN error on a bill of exceptions tendered to the mayor of the city of New York, on a charge given by him to the jury, in an action brought by the now defendant, against the present plaintiff, for the non-delivery, in good order and condition, of a certain quantity of coffee at Amsterdam, according to his contract; the exception was, that “ the said Edward Livingston, Esq., mayor as aforesaid, did then and there declare and deliver his opinion to the jury aforesaid, that the said several matters so produced and proved as aforesaid, on the part of the defendant, were not sufficient to entitle him to the verdict of the said jury; that the burden of proof to account for the deficiency of the coffee delivered lay on the defendant; that it was incumbent on him to show explicitly that he did fulfil his contract, except as far as he was prevented by perils of the sea; that the defendant was bound, not only to show that there was a loss of the coffee, by the perils of the sea, but how much was lost by those perils, or to give some reasonable account of the quantity ; that it was in the power of the defendant to have put a hand on board the lighters which landed the coffee, to prevent any loss therein ; that ■the court was clearly of opinion there was a deficiency of proof on the part of the defendant, which charged him with • the loss, and with these directions left the same to the jury, to find for or against the said plaintiff.”</p> <p>The arguments of the counsel being all directed to the charge, whether it was proper or improper, it is unnecessary to detail them, as it was on another ground that the court rested their decision, which was delivered by</p>

Ejectment for lands witbin tbe Hosick patent, in Kens-selaer county. Gerret Teunis Van Vechten, ancestor of Johannes Van Vecbten and Valkert Van Vechten, was one of the four persons to whom, in June, 1688, tbe Hosick patent was granted. In 1732, it was by tbe owners divided and laid out in lots.

<p>■ THE facts of this case are stated in vol. 1. p. 1, of the introductory cases, but as the opinion there is that of Mr. Gold only, the decision of the court is now given.</p>

In debt on a bond, the plaintiff set out the real oyer of it. The defendant then demanded oyer, which was given to him variant from that set out, on which the defendant pleaded non est factum. The plaintiff then, without any rule or notice, served a fresh oyer, setting out the bond and condition truly; twenty days having elapsed, he signed judgment by default.

This was an ejectment for lands lying in the county of Washington, to which the plaintiff claimed title under a royal grant, dated in 1770, and the defendant under one of 1688, commonly called the Hosick patent. The only question between the parties was, what is the true construction of this latter grant as to boundary ?

Lsr ejectment on a motion for a new trial. It appeared that at nisiprms\ the plaintiff claimed by descent. On the cross-examination of one of his witnesses by the defendant, it came out that the ancestor had made a will, of which the judge, vho heard the cause, admitted parol testimony, without any notice to produce it having been given.

<p>On certiorari to three of tbe judges of the common pleas of Washington, to return an appeal to them from tbe determination of the commissioners of highways, for the town of Cambridge, “ and also the decision, judgment, process, and proceedings of tbe same, with all things touching the same,” the return stated tbe appeal to have been on tbe laying out-a public road or highway through part of tb * town of Cambridge; it then set forth the minutes, or memorandum, as it was termed, of the laying out, by precise courses and distances ; but the width of the road was not given, nor was it specified whether it ran through-improved or unimproved land; -neither did it mention that it was laid out on the request of twelve freeholders under oath. This memorandum was signed by the commissioners, and directed to the town clerk, requesting him to record the same as a public road, and to it another memorandum subscribed by the same commissioners was subjoined, in the following words: “ Likewise a piece of road south of Mr. William Hill’s dwelling-house,” &c. describing the courses and distances, but ^without specifying any request to record it, either as a public or private road. The return farther stated that the judges, according to the act of the 8th of April, 1801, (1 Rev. Laws, 588,) met on this appeal, and after hearing reasons for and against the road, affirmed the determination of the commissioners ; adding, however, that when this was done, they were n )t informed or advised that the highway was laid out though a garden, which had been cultivated as such for at least four years, without the consent of the owner (sec. 15,) thereof, which had been since communicated to them, and which they believed to be true.</p> <p>To this return the plaintiff assigned the following errors: 1. That it did not appear that twelve freeholders had certified, under oath, that the road was necessary; 2. That the commissioners had not caused the laying out to be recorded; 3. That it did not appear whether the road was laid out as a public or private road; 4. That from the return of the judges, it appeared that the road was run through a garden, improved as such more than four years; 5. That the width of the road was not stated, which ought to be done with definite boundaries.</p> <p>Before entering into the discussion of the errors assigned, it may be well to observe, tbat by the 2d section of tbe act, under which the proceedings complained of have taken place, the decision of the, judges of the common pleas is made conclusive. It may be questioned, therefore, whether this court, in the present instance, has j urisdietion.</p> <p>Kent, Ch. J. We will think of that matter; in the mean time let the argument proceed.</p> <p>By the last proviso of the 15th section of the act to regulate highways, it is ordained, “ that no road shall be laid out through any improved land,-without the consent of the occupant, unless upon the application of twelve respectable freeholders of the town, certifying on oath that such road is necessary and proper.” This regulation, it appears from the return, has not been complied with. As the power by which it was to be carried into effect is a special delegated power, it must be strictly pursued, and so shown to the court.' The same observation applies to the 2d and 3d exceptions. The direction to record is confined to the first road, and cannot extend to the second; for as the whole proceeding is *in deregation of the rights of individuals, nothing can be taken by way of intendment. The importance of stating the nature of the road, whether private or public, is manifest from the 17th section of the act; the first are to be not more than three, the latter not less than five, rods wide. On the face of the return it appears that the road was laid out contrary to law. It is expressly stated that the judges knew not, till after confirmation of the acts appealed from, that the road went through a garden improved for more than four years. Had the requisites of the act been complied with, this must have appeared. It is plain, then, that without adhering to the' directions of the statute the commissioners have laid out a road, infringing on private rights, and contrary to the act For these reasons we contend tbe judgment must be reversed; besides, tbe commissioners’ proceedings are not returned.</p> <p>Tbe return made by tbe judges oarriea a spirit of partiality.</p> <p>KENT, Cb. J. No imputation can be received against inferior magistrates, unless they stand charged with improper conduct. They are not bere to answer for themselves. Tbe only question is, are tbe proceedings regular or not ?</p> <p>Foot. Tbe judges are not bound to return any thing which was not before them ; therefore tbe -application of twelve freeholders, &c. and all that constituted grounds for the commissioners to proceed, need not appear. From tbe face of the return it is evident the road laid out is ordered to be recorded as a public road. Tbe direction for the latter is, that it shall be “ likewise,” which is as much as to say, in the same manner as the former. It cannot be intended from the record, that the road went through a garden. If the proceedings do not show intrinsic error, it will be presumed they are correct. The law prescribes the width of the road, and till the contrary appear, the infe-renceunust be, that the directions of the statute have been complied with.</p> <p>The reasoning of the opposite side is in effect this, that the court must decide on what is, from what does not appear; therefore a compliance with the act must be presumed, because it is not shown. This is contrary to every principle relating to inferior jurisdiction.</p>

This was an action of ejectment to recover lot 25, in the town of Marcellus, and tried before Mr. Justice Thompson, on the 25th of June, 1803, at the circuit court held in Onondaga. The plaintiff deduced his title from William Dunbar, one of the lessors, a soldier in the revolutionary army, and' to prove it, adduced, first, the patent from the state for the lands in question, dated the 8th July, 1790.

<p>A purchase b~ an executory who has a power toseh for the benefit of a third person, from his cestui que trust is not favoured in equity, and a bill by him for a specific performance is also a cestui cannot be maintained, but it seems that a purchase by a trustee, who ■que trust, may, if to save the property from loss, be sustained.</p>

This was an action for breach of an implied covenant. The declaration, laying the venue in Dutchess county, stated that the defendant, in consideration of $750, did grant, bargain, sell, alien, and confirm unto the plaintiffs, in fee, lot No. 65, or 76, in Junius, in Montgomery,'(now Cayuga county,) the plaintiffs to elect, on or before a certain day, which of the lots they would have, with an averment that the defendant was not seised of either of the said lots, or had any…

THIS was an action of assumpsit, determined by the supreme court. rI~he suit was by the plaintiff as indorsee, against the defendant as indorsor, of a promissory note, made by Roger Eno~, to him, dated - the first of .Tune, one thousand seven hundred and ninety-five, for three thousand five hundred dollars, payable thirty days after date. Plea.

<p>A possession of 40 years on an acknowledged, though erroneous line, is f good bar to a recovery in ejectment. A parol agreement, to abide by a certain division line, will be sufficient, ut semble, to prevent either party from claiming in ejectment contrary to it, though it will not pass the lands;(a) but such agreement may, it would seem, be revoked or modified by a subsequent parol agreement.</p>

THIS was an action of assumpsit, under the foi lowing circumstances.

Case on a written warranty, upon the sale of a negro, that he was in good health, and in all respects sound. At the trial, parol evidence was admitted to establish, that at the time of sale the plaintiff communicated to the defendant the defect in question, which was in the left arm, offering to show it, and that it was clearly visible, the arm being thin and crooked. It was without argument submitted to the court to determine whether this evidence was admissible or not ?

Goldek, in order to ground an action for a malicious prosecution, moved for a copy of the indictment in this cause, on a certificate from the judge, before whom it had been tried, that the acquittal was satisfactory to the court.

<p>On a written warranty, that anegro is found, parol proof is admifiible, to fliew that at the time of fale, the vendor informed the vendee of a defeót. A warranty does not extend to defects which are viilble.</p>

THIS was an aftion on a policy of infurance for 5000 dollars, on the cargo of the Hoop Hope, at and from Guadaloupe to New-York, for account of Richard M. Lawrence. Premium 3 1-2 per cent. Held: that an averment of the plaintiff’s being interefted to the whole amount of the cargo infured, was fupported by evidence ihewing he had fome intereft, though previous to effeiting the policy, he had fold the major part to another perfon.

This was an action of ejectment for lands in Montgomery, the sole question in which was, as to the point of beginning in the Yan Slyck patent, granted in 1716. A verdict having been given for the defendant, application was made for a new trial, as being contrary to evidence, the whole of *which, as applicable to the question, is detailed in the opinion, which is given without either case or argument, the whole contest being a matter of mere boundary.

In this case the jury found a verdict in favor of the plaintiff, for 50 dollars damages and six cents costs. It was submitted to the court whether he was not entitled to his costs, of increase.

<p>A justice of the peace cannot grant a warrant to apprehend a criminal for aa offence committed in another state.</p>

This case, which came before the court on a writ of error to the common pleas of Orange county, was, like the former, a question of costs. The plaintiff, who was the plaintiff below, had recovered 25 dollars in the inferior court, and the j udges there had ordered costs to the defendant. Jones contended they ought to have been awarded to the plaintiff. That the word “recover” meant everything for which the judgment would be rendered.

Ejectment for lands in Saratoga. The plaintiff proved a lease of part of.the 18th lot in the 16th allotment of the grand division of the Saratoga patent, by John R. Bleecker (from whom his lessor established her title) to one John Skidmore, who entered, and held under it, paying rent as a tenant. That Skidmore sold the lease to one Danforth, who died leaving two sons, who divided the farm between themselves, acknowledging, however, the title of Bleecker.

<p>This was an action on the warranty(a) of the sale of a horse. The declaration contained two counts : one on the warranty, the other in assumpsit.(b) To these the defendants pleaded not guilty, and non assumpserunt</p> <p>At the trial the plaintiff took a verdict on the count in assumpsit; but as to the first, entered a nolle prosequi, which was inserted on the postea, and also on the record.</p> <p>The defendants applied, on a case submitted, to arrest the judgment, because two incompatible counts were joined in the declaration,</p>

IN error on a judgment of the supreme court, in ~an action on a policy of insurance on the freight of the good American ship called the ..lstrea, at and from New- York, to Gorunna, the freight valued at ten thousand dollars, at a premium of fifteen per ~ent~ At the trial in the court below, the jury brought in a special verdict stating, among other things, That the policy was underwritten by the defendants in error, in consequence of a written application made to them, by…

This was an action for debauching the plaintiff’s daughter, whereby he lost her service, and was put to expense in her lying in, &c. The defendant applied, on a case made and submitted without argument, to set aside the verdict, which was for 450 dollars, as being contrary to law, against evidence, and because the damages were excessive. At the trial the plaintiff’s principal witness was his own daughter.

In trespass cle bonis asportatis the defendant pleaded not guilty, and gave notice that the locus in quo was his freehold. At the trial 17 dollars only were recovered. The plaintiff, however, contended he was entitled to full costs, as it appeared from the notice that the freehold had come in question. 1 Rev. Laws, 529.

<p>ifm aSump¿' not ihewn why tal on error. So nVeredincharge' of a perfon not a con^‘'k*e-</p>

<p>h. motion in arrest is a non-enumerated motion, and the reasons need no be specified.</p>

On a policy of insurance, upon the body of the ship Ann, effected on the following representation: “ The Ann will sail from hence in a few days, for the West Indies, in ballast.” The clause relating to contraband was stricken out, but that concerning illicit trade was retained. In the first count of the declaration, the loss was alleged to have taken place by seizure, by the French government, in St. Domingo.

ON a policy of infurance, upon the body of the ihip Ann, effected on the following reprefentation. “ The Ann will fail “ from hence in a few days, for the Weft Indies, in ballaft/* The claufe, relating to contraband, was ftricken out, but that concerning illicit trade, was retained. In the firft count of the declaration, the lofs was alleged to have taken place by feizure, by the French government, in St. Domingo.

On a policy of insurance, on 13,600 dollars, in doubloons, at and from Kingston in Jamaica to Baltimore. The case and arguments embraced a variety of points and facts, but as the decision turned on one principle only, it would be.useless to detail more of either than is applicable to the judgment.

On demurrer guare clausum fregii. The plaintiff declared generally, for breaking and entering bis close in the township of Brookhaven. The defendant pleaded liberum tenementum, specifying and setting it out by metes and bounds. To this the plaintiff, without new assigning, replied his own freehold, traversing the free-bold of the defendant, and concluding with an ethoc paratus, praying bis damages.

<p>This was an action on an arbitration bond, the declaration in the common form.</p> <p>The defendant demanded oyer of the condition, which was set out in the following words : “ The condition of this obligation is such, that if the above bounden, John Van Der Veer, his, &c., do well and truly pay to the above named John Schuyler, his, &c., the full sum of one hundred pounds, of good, &c. on the 10th day of December next, if the said John Van Der Veer does not abide by the award of , arbitrators indifferently chosen to settle all matters of controversy, then this obligation to be void,” &c.</p> <p>To this the defendant pleaded no award.</p> <p>The plaintiff replied showing an award, that all controversies .touching the premises, in the submission mentioned, should cease; that the said John Schuyler and John Vap Der Veer should finish the house between them, and be" so far complete as to board it over the roof, and the floor all complete, and a chimney, and if the *said John Yan Her Yeer should keep tbe stove, then be should pay John Schuyler fifty shillings for it; that Yan l)er Yeer should pay Schuyler eleven pounds ten shillings; that the costs of the arbitration should be jointly borne, and the parties pass receipts to each’ other from the beginning of the world. The replication then stated a breach in not paying the eleven pounds ten shillings. To this the defendant demurred, and showed for causes that the plaintiff had not alleged performance of what he by the award ought to have done; that the award was uncertain and inconclusive, in not specifying what house Schuyler and Yon Der Yeer were to finish, nor the materials with which, nor the person for whose benefit it was to be finished; and also in not making it appear for keeping what stove Van Der Yeer was to pay, and in not ascertaining the proportion of costs each one was to pay, and to whom. Lastly, that personal services were awarded. On this demurrer, in which the plaintiff joined, the cause now came before the court.</p> <p>The ancient authorities obliged the plaintiff to show, after having set forth the award, performance on his part of those acts which, by the award, he was ordered to do, except when those things to be done by the defendant formed a condition precedent. Modern adjudications have narrowed these decisions, and reduced their applicability to two cases ; 1st. Where the acts to be donefoy the plaintiff are so doubtfully set down, that their performance cannot be compelled, and the whole award would be void for want of mutuality ; 2d. Where, by the terms of the award, the acts which he is to perform make a condition precedent. Here nothing appears to be awarded the defendant which he can claim to his use, therefore no acts to be done by the the plaintiff which can form a condition precedent. If it is urged that there is then a want of mutuality, it is sufficient to say releases are awarded, and that bas always been beld to be a mutual benefit. Harris v. Knipe, 1 Lev. 58. But allowing many of the objections to. bold, the award is good in that part which orders the payment of eleven pounds ten shillings. It is there the breach is laid, and. whatever may be the fate of the other parts, this, showing a good cause of action, is conclusive for the plaintiff. In Fox v. Smith, 2 Wils..26.8, the pleadings were similar, to the present, case, and it was ruled, that as the breach was well assigned in that part of the award which directed the payment of sixteen pounds ten shillings, '^and that breach stood confessed by the defendant’s demurrer, the plaintiff was entitled to. judgment. The reason is obvious ; any one breach is a forfeiture, and a recovery for that, is a bar to any future action on the same- bond. So in Addison v. Gray, 2 Wils. 293, among a variety of acts to be done, general releases and payment of a specific sum were ordered ; the breach was laid in not paying- .the money, and it was, without hesitation, determined the action was well brought.</p> <p>The condition of the bond is in the alv ternative, either to pay -one hundred pounds, or abide by the award. The non-performance, therefore, of the award, is not a forfeiture of the bond, for the defendant might, have paid the one hundred pounds to exempt himself from its performance. The plaintiff, therefore, by the mere allega® tion of a breach, does not show any cause of action. 4 •Bac. Abr. (old ed.) 135. The court cannot presume the one hundred pounds -were ■ not paid'. The uncertainty of the award is manifest; and it may be doubted how far any averment could have reduced to a sufficient certainty the vague expressions of “ the house” and “ the stove.” If intended for the benefit of the defendant, as perhaps the payment ordered, of the eleven pounds ten shillings, may suggest, yet if it be so uncertainly set forth that he could not compel performance, and performance is not averred, the award is bad in toto. Kyd, 169, 170, 173, 174.</p> <p>The one hundred .pounds mentioned in the condition of the bond are nothing more than a super-added penalty. It was unnecessary, therefore, to allege the non-payment. Had it been paid, it ought to have been shown by the defendant, as it would have constituted a defence to the action. As nul agard is pleaded, it may be a question whether the payment of the one hundred pounds could be urged. By such a plea, the defendant admits that if there be an award, and a breach shown, he is liable to the penalty of the bond. To render an award void for uncertainty, it must be such an uncertainty as is so to the parties. “ The house ” and “ the stove ” were known to them,-and might have been identified by aver-ments. In Styles v. Triste, "(1 Sid. 54,) an award that one should keep and enjoy “ the goods,” paying so much money,, was held to be a valid award. So, where a certain sum was directed to be paid towards reparation of the house, without saying what house. J&opper v. ITacJcer, 1 Keb. 738. It must be intended the house and the stove in the pleadings were *those in dispute; and if the award be final, then it is mutual within the meaning of the law.</p>

This was an action against the defendant to recover the ' value of a mare, sold by him to the plaintiff. The facts were, that on the 17th of June, 1800, a wri$ of fieri facias was delivered to the sheriff of Montgomery, against the goods, &c. of Avery Herrick, returnable on thg third Tuesday, in July then next. On the tenth of November ^following, Herrick bought the mare in question, and sold her to the defendant, of whom she was purchased by the plaintiff.

This was an action for publishing a libel. moved to change the venue from the city and county of New York to the county of Greene. read an affidavit by the plaintiff stating that he resides in New York, and that the suit was brought for the publication of a libel in a newspaper, published in the county of Greene, by the defendant, and which he saw exposed to the view of many persons in this city, and that the plaintiff verily believed the defendant was the editor or printer…

These were two actions brought by the endorsee of the same promissory note. The first was against Hastie & Patrick as makers; the second against Tyrie as endorser. The facts in each were these: Hastie had become bail in a suit by the United States, in the district court, and judgment had been obtained against him on bis recognizance. Being unable to pay it, the plaintiff (wbo was district attorney for tbe United States) agreed to take bis own note witb an endorser.

<p>Being a public officer affords no excuse for not going to trial, nor does his cause acquire any preference.</p>

<p>The court will renew a rule for an attachment if it has not been forwarded by the clerk in time to be duly served.</p>

<p>, Motfon íaff™f’nenfo.:, be m tbe next term aitei thenegledt.</p>

The plaintiffs had brought an action against the defendant for disobedience of orders. ' The declaration consisted of two special counts, and one for money had and received. A verdict having been rendered against the defendant, he, in February last, applied to set it aside, which being ordered, (Vol, 1, 526,) he instituted, for the recovery of his wages, money laid out, &c., a cross suit, in which the general issue only was pleaded.

<p>¿WcDiDwiil renew a rule for ¡¿“agnoibeen^ forwarded by £ime t0 bc duIy forved.</p>

<p>Motion for judgment as in case of nonsuit must bp in the next term after the neglect.</p>

The plaintiff in this cause had recovered for a pro rata freight. Thinking himself entitled to a verdict for the whole, he, in May term last, {ante, 13,) moved for a new trial, which the court refused, but said nothing as to the costs of application. The questions now were, whether the defendant should be allowed them ; and whether, in taxing the general costs, interest should be allowed beyond the day on which the verdict was given ?

<p>After a fecond ¡ffi^T^vith112* leave to go to ftanding, the" court, on fpecial fmee difeover’d, W1,U vacate llie rule as to going to trial, and alt^mefo/'the*re-turn.</p>

This was an application to set aside a judgment and execution. Mnott, in support of the motion, read an. affidavit by Thomas Beals, stating that he had, for a debt due from him and the other defendant, executed for himself and partner, to the plaintiffs, a bond and warrant of attorney without any authority from William Beals, to sign for him.

Evertson moved to set aside the execution issued in this cause, and to have satisfaction entered on the judgment upon an affidavit stating that the amount of the debt in the condition of the bond, on which judgment had been confessed, had, together with interest and costs, been paid to the sheriff, *who nevertheless threatened to go on and sell, in pursuance of the directions he had received, as the fi. fa. issued was on a judgment for the penalty, and the writ endorsed to…

The plaintiff liad, in the last term, obtained a reversal of the judgment below, for a defect in the return of the oath administered to the constable. See ante, p. 189. So soon as the court had delivered their opinion, the plaintiff’s counsel left town. The next day, Gold, on affidavit that the error arose from a clerical mistake in copying, obtained a peremptory order to amend.

<p>Jones moved for a commission, to be directed to New Orleans, though issue was not joined, nor the writ returned.</p>

Bogert applied, in this case, for a new trial, on an affidavit of newly discovered evidence from A. B., a man of good character and reputation. Starr offered affidavits to show the person from whom the information was derived was a man not worthy of belief, and, in the present instance, actuated by motives of revenge.

BOGERT applied, in this cafe, for a new trial, on an affidavit . of newly difeovered evidence from A. B. a man of good- character and reputation. , S.tarr offered affidavits, to ihew the perfon from whom the information was derived, was a man not worthy of belief, and in the prefent inftance actuated by motives of revenge.

<p>The application was to add a new count on tlte demise of a new lessor.</p>

<p>A new count on the demife of a new lelTor, may on terms be added to a declaration in ejectment.</p>

Jones, on a mere notice of motion and affidavit of service, moved to add a new count, in a declaration in ejectment, on the demise of a new lessor. It was opposed. But,

<p>If a vessel be, from sea damage, obliged to bear away to a port of necessity in order to refit, the wages and provisions, from -the moment of bearing away to the period of sailing on her original voyage, constitute a subject of general average, the.proportion of .which maybe recovered in an aetion of assumpsit, by the owners of the ship, against the proprietors of the cargo, and of course for which the underwriters on the cargo are liable, jBarker v. Pfomm Ins. do., 8 Johns. Rep. 301.</p>

ASSUMPSIT by the plaintiffs, owners of the ihip Thomas, againft the defendants, proprietors of her cargo, for their quota of a general average, for wages and provifions, incurred and expended, from the time oi> bearing away to Norfolk, in confequence of a leak iprung in a violent gale of wind,' which, on confultation with the crew, rendered it necefiary to make for the neareit port, in order to refit.

On a policy of insurance upon the body of the brig Friendship, “ at and from Newry, in Ireland, to New York.” Previously to the sailing of the vessel, the master, in conjunction with the agents of the assured, entered into a written contract to land some passengers at Halifax, in Nova Scotia, under a penalty of five hundred pounds.

TROVER to recover the value of a quantity of wine and brandy, in which a verdift was taken for the plaintiffs, fubject to the opinion of the court on this cafe.

Trover to recover the value of a quantity of wine and brandy, in which a verdict was taken for the plaintiffs subject to the opinion of the court on this case.

This was an action of trespass for debauching and getting with child, Elizabeth, the daughter and servant of the plaintiff, by which he lost her service, was forced to expend a large sum of money in her lying in, and had, with all his family, fallen into disrepute.

Assumpsit by the plaintiffs, as assignees of Nixon, a bankrupt, for a balance of an account, due on a particular partnership, in which the bankrupt, the defendant, and Samuel L. Brush were concerned. The declaration contained a count for goods sold and delivered, the usual money counts, and an insimul com/pu-tassent, between the bankrupt and Jesse and Samuel L. Brush.

ON the 18th day of April, 1799, the appellants filed a bill in chancery setting forth that the testator died in the winter 1792, and left the appellant, Geertruyd Newkerlc, his widow and executrix.

Assumpsit on a policy of insurance. The plaintiff and his deceased partner were brokers, and effected the policy in question without naming the party interested, and describing themselves as brokers only by the customary marginal insertion of their names as such. It was, however, generally known, among the underwriters, that this, and several other policies on the same risk, were on account of a charitable association in Scotland, the trustees for whom had given the orders.

On scire facias on a judgment docketed on the 25 th January, 1800.

Assumpsit on a policy of insurance on the cargo of the schooner Chance, commanded by Graham, one of the plaintiffs in the cause. The vessel and cargo being captured by a French privateer, were sold by order of the Spanish Government at the Mantanzas, in the Island of Cuba, whither she was carried, and the proceeds of both lodged in the custom-house oí that place. After this Graham appointed an agent to prosecute his claim, and departed.

THIS case was stated thus: John Crabb, one of the lessors, purchased of the new loan officers, at public auction, on the 3d Tuesday in September, 1795, one hundred and sixty acres of land.

THIS was an'application to set aside a verdict,, rendered for the plaintiff. From the judges report, the present appeared to be an action brought for the benefit of the creditors of the plaintiff, and his name, used merely to satisfy the forms of law.

<p>A tenant entering under a person claiming the whole in severalty, is not entitled to the value of his improvements from persons recovering as co-tenant.</p>

The jury in this cause, which was an indictment for a conspiracy, being duly sworn, the defendants were arraigned, and pleaded not guilty. Immediately after this, the district attorney served on Barrett a notice to produce a promissory note, mentioned in the indictment, or that parol testimony would be given of its contents; and asked his counsel if they were ready for trial, to which they answered they were.

THIS was an action of covenant, and the declaration stated in substance, that John Baker, on the 17th October, 1795, gave a promissory note to WilHam Hooker, by which he promised to pay to him, or his order, on the 1st day of April, 1797, 833 dollarsand 33 cents; that the defendant sold the note to the plaintiff, 'to be by him collected at his own risk and costs, as it respected the ability of Baker and Hooker, and that the defendant covenanted to and with the plaintiff, to…

This was a special action on the case, to recover from tbe defendant, master of the ship Spy, the value of seventy five pipes, four hogsheads, and twelve quarter casks of Madeira, shipped on board his vessel, for the East Indies, and consigned to his care, under a letter of instructions containing the following orders : “You are empowered to dispose of these wines, either at Ceylon or Calcutta, or at both places, provided that they liquidate us the cost of invoice,…

FROM the circumstances stated in this case, it appeared, that the defendant, on the 3d day of January, 1792, gave the plaintiff a promissory note for 9,299 dollars and 44 cts. payable in 90 days; that the plaintiff indorsed the note, and it went into circulation; that it was not paid when due; that the defendant was afterwards discharged under the insolvent act, and, at the time of the discharge, the note belonged to Archibald Mercer ; that subsequent to the discharge, to…

ON certiorari to the justices’ court iu the city of New York. It appeared from the return, that the action below was brought against the now plaintiff to recover from him, as inspector-general of provisions, twenty-five dollars, for condemning, as unmerchantable, some beef belonging to the present defendant.

THIS was an action of ejectment for a store and lot at Kinderhook, on a demise laid 1st June, 1795. The application was to set aside a verdict for the P^a^ntiff, and grant a new trial.&emdash;The facts of the case were these, Lawrens Van Alen was in possession of the premises for a period of more than 30 years before the bringing of the present suit.

This was an application to supersede an attachment issued against the property of Fitzgerald, as an absconding or concealed debtor. The principles on which it was urged are so fully detailed in the opinion of the court, that it is not necessary to do more than state the judgment of the court, which was delivered by

This was an ttpplication for a mandamus, forbidding the Sessions of Chenango from proceeding on a iaew trial they had granted.

ON demurrer. The plaintiff declared in debt on a bond, the condition of which, as set out on the oyer, stated “ that sundry controversies subsisted between the plaintiff and the defendant, and Callicia Alaire, touching the division fences between their farms, at Mamaroneck, and sundry roads and paths claimed by each party, and divers other matters and that being desirous of terminating the said controversies equitably, they had submitted to the award of Jonathan Ward and…

THE question in this case was, can the assignee of a promissory note given in connecticut maintain a suit upon it here in his own name, since he is not permitted to do so there?

THIS was an action of debt on recognisance, in which the defendants bound themselves to the plaintiff in 100/. that a certain Jacob Jones, whom the plaintiff claimed and deta hiedas his slave, and who had sued out his writ of homine replegiando, should prove his liberty in the most proper and expedient way and means, and should personally appear in this court, and his suit in that behalf prosecute with effect.

THIS was an action on a policy of insurance in the usual form, but free from average, on a chariot to be carried on deck, On the voyage the box was thrown overboard in a ~torm to lighten the vessel; she afterwards arrived safe with the remaining parts of the chariot, It appeared the box is ordinarily estimated at two~ thirds of the price of the whole chariot.

<p>tiie recital of deeds among Where several patentees bear, £u equal proportions, the expense of obtaining a patent, and by themselves, it appears they intended to purchase in common, they will be taken as tenants in common and not as joint-tenants, though the patent be to them jointly. A conveyance with a recital of the intentof a purchase, is a conveyance with notice, and tiie grantee takes, subject to trusts implied as well as expressed.</p>

Assumpsit upon a policy, on the schooner Margaret, from Cape Francois to Baltimore.

ON a motion by the attorney-general for an attachment. The ground of application, and objections to it, being contained in the decision, it is unneecessary to relate the argument by counsel.

Hopkins moved to set aside tbe inquest taken in tbis cause at tbe last sittings, New-York, on an affidavit by two persons, that tbe debt for wbicb tbe action was brought bad been paid, and on another affidavit by tbe defendant’s attorney, stating that be did not attend when the cause was called on, because, from a conversation with tbe partner of tbe plaintiff’s attorney, and who' bethought was attorney also for tbe plaintiff,-be was led to imagine tbe trial could not be bad…

Assumpsit, to recover one thousand dollars bad and received by the defendants to the use of the plaintiff. Prom the evidence at the trial, these appeared to be in substance the circumstances of the case: The money in question .was one of several consignments to different people, shipped under regular bills of lading, from New Orleans to New York.

<p>ISRAEL SMITH, being seised in fee of the premises in question, by his will of the 21st July, 1774, devised them “ to the trustees of the town of Brookhaven, and their successors for ever, upon trust and confidence, and to the intent and purpose that x x e they did, and should, after his decease, rent and hire the same to any person at their will, and pay the rents and hires thereof, after the expiration of the time, during which the same should be legally charged and incumbered with the lawful maintenance and dower of his wife, into the hands of the regular minister and other ruling officers for the time being of the Baptist Church of Christ at-.” The testator died on the 1st November, 1780, and his widow about ten years thereafter.</p> <p>The trustees of the Baptist Church had, from the death of the widow, received the rents and profits of the premises, and the defendant, at the time of the commencement of the suit, held the premises under them. The lessor of the plaintiff was heir to the testator. The trustees of the town of Brookhaven were, at the time of making the will, and then were a corporation capable to take and hold lands. The question was, “ is the plaintiff entitled to recover ?”</p>

Assumpsit, for money had and received, to recover back the amount of premium, paid for insurance.

ON a motion, by the defendant, to set aside the verdict in this cause, Mr. Justice Lewis, before-whom it was tried at the October term, 1799, made the following report. {S This was an action of… Held: and still did hold it, which note was intended to be offered as a payment. This evidence was objected to by the counsel for the plaintiffs, as inadmissible under the present issue, and that it would be equally so, if a notice had been annexed to the plea.

Assumpsit by the holder of a promissory note against the second endorser. The maker being indebted to some English creditors, the plaintiff agreed to take his note for 15s. in the pound, with two endorsers. In consequence of this arrangement, the note in question was made, and delivered over to Jackson.

<p>Where a bill ' seeks an examination of witnesses de bene esse, on account of age, &c. an affidavit of the facts on which the application is founded, is necessary. So on a bill to have a title established, and for quiet possession j for whenever a bill seeks to transfer a matter cognisable by law to chancery, an affidavit of the facts, on which it is required, should be stated. When a bill requires an affidavit to some parts, and not to others, ademur- ’ rer to the whole for want of that affidavit is bad.</p>

In partition from tlie common pleas of Ulster county. The defendants bad pleaded that the plaintiffs did not hold in common with them, in manner and form, &c., upon which issue was taken, and a verdict rendered by consents subject to the opinion of the court on the following case.

<p>The opinion of Mr. Justice Kent, in this cause, having been referred to in his argument on the conclusiveness of foreign sentences,* is given now, as it was not till the preceding sheet was worked off, that it came to the hands of the compiler.</p> <p>THIS was an action on a policy of insurance on the schooner Paragon and her cargo, from Aux Cayes, or any other port in Hispaniola, to the United States, and warranted American. The insurance was effected for Moses Myers, of Virginia, and the vessel was captured by a British frigate on her return from St. Domingo, laden with the produce of that island, and was carried into Jamaica ; and by the vice-admiralty court of that island was condemned as good and lawful prize.</p> <p>Two questions have arisen on this case.</p> <p>1. Whether the sentence of the admiralty concludes all further inquiry respecting the neutrality of the property.</p> <p>2. If it does not, whether the testimony offered, appears to warrant the sentence of condemnation at Jamaica,</p>

On a policy of insurance on goods, with this clause underwritten : “ This insurance is declared to be upon the interest of William I. Robinson, being the allowance made him, as supercargo, as per agreement made with the owners of the ship Mary.” The facts, as they appeared on the special verdict found in the case, were these: The plaintiff, being part owner of the ship Mary and her cargo, contracted with the other owners to go in her to the East Indies, as supercargo, under…

Debt on a bond executed in Pennsylvania. On production of the instrument, it appeared that, instead of being sealed with wafer or wax, there was an ink seal, or mark in ink, of L. S. in the locus sigilli, and that in the body of the deed the obligor was described by the name of Hins-dall, but in the signature it was spelt Hinsdale, by which name he was sued.

Ejectment for lands in the county of Orange, claimed by the plaintiff, under the Bear Hill patent, and by the defendant under the one to Staats.

The declaration in this case stated the endorsement of a promissory note to a firm whose surnames only had been used, in the following manner : “ to certain persons using the name, style, and firm of Willoughby & Weston,” and it afterwards stated their endorsement to the plaintiffs rhus: “ And the said persons so using the name, style, and firm of Willoughby & Weston endorsed the said'note, the prmier handwriting of one of them, in their said copartner ship name, style, and…

<p>If a person admitted defendant m ejedtment, and keep out of the ibrvice of°the ca. fa.- agamft or,6 “hc^comt" will grant a rule, to ihew caufe why an •attachment ihould not iiiue* of which fervice at the houfe of the defendant will be fuffici-cnt.</p>

<p>THE declaration in this cafe ftated the indorfement of a promiilory note to a firm whofe furnames only had been ufed, in the following manner, “ to certain perfons ufing the name, ftyle, and firm of Willoughby and Wefton,’’ and it after-wards ftated their indorfement to the plaintiffs thus : “ and “ the faid perfons fo ufing the name, ftyle, and firm of “ Willoughby and Wefton indorfed the faid note, the pro- “ per hand-writing of one of them, in their faid co-part- “ nerihip, name, ftyle, and firm, being to fuch indorfement “ fubferibed.” To this the defendant put in a general demurrer.</p> <p>Hopkins on a notice of motion, for the nth, moved to overrule it as frivolous, and claimed on that account a priority to other caufes, entered for argument.</p> <p>infilled, that -the right of bringing on a demurrer in preference to other caufes, fet down for argument, applied only to cafes where no oppolition was made. M'Cabe v. M'Kay,* in Auguft Iaft. That at all events the notice was bad, being for the nth, inftead of the firft day of term.</p> <p>The demurrer book was not made up till the firft day ;† the caption is of this term.</p>

On demurrer. Tbe plaintiff declared against the defendant, as maker of a promissory note, dated on the 19th of July, 1793, payable on demand to William Buckle 01 order, and by him, on the same day, endorsed to the plaintiff.

In Error on certiorari. The return does not state that any constable was sworn to attend the jury, though it is evident they retired. As no improper practice is alleged, *and it does not appear a constable was not sworn, the court will intend it was done.

<p>This court will, on motion, order a writ directing the judges of the common pleas to come in and acknowledge their seals to a bill of exceptions</p>

ON a motion to change tbe venue from New York to Ontario, in an action for nse and occupation, the defendant swore all his witnesses resided in the latter county, where the house was situated. Hoffman resisted it because the action was transitory, and .on an affidavit by the plaintiff, stating his case to rest on written receipts, and an agreement executed in New York.

Simonds moved to change the venue to Onondaga, on affidavit by the defendant, that witnesses, which his counsel advised were material for him, resided there. The action is for goods sold and do livered in Hudson, where the plaintiff lives.

A rule was laft term order-n r «ni i „ . ed to íhew cauie, agamit the amendment allowed in Auguft laft.* But on fearch no rule has been entered ; am I then e to íhew cauie agamft what does not exift ? Per curiam. We remember that a rule was granted, and you yourfelf cannot have forgotten it. Caufe, therefore, muft be (hewn. _ By the decifion of Auguft, the court pronounced the error for which they reverfed the judgment, to be matter of fubftance.

<p>Ia error on certiorari, the costs of only the general assignment to be allowed. If the error he from a clerical mistake in transcribing, and it be assigned for error, but the defendant do not apply to amend till after argument, it will not be allowed without payment of costs.(a)</p>

<p>Priority of argument.</p>

Biggs, resisted, because the cause had been once tried, and our act, (1 Rev. Laws, 353,) being like that of the English, required the same construction, under which it was held a plaintiff could not be nonsuited for not trying a second time. If we are wrong we are ready to stipulate.

<p>MOTION for judgment as in cafe of nonfuit for not going to trial.</p> <p>Riggs refilled becaufe the caufe had been once tried, and our aft * being like that of the Englilh, required the fame conftruftion, under which it was held, a plaintiff could not be nonfuited for not trying a fecond time. If we are wrong we are ready to ftipulate.</p>

Ostrander moved to set aside the default and all subsequent proceedings on tbe following facts: On the 2d of October the declaration was served on an agent. On the 11th, the defendant gave notice of a motion, to be made the 12th of November, for leave to change the venue, but on the 10th the plaintiff entered a default, and never appeared on the 12th to oppose the application, in consequence of which the venue was changed as of course.

Hofpman moved for a struck jury, on an affidavit stating the case to be intricate and important. Jones contended that it was defective in not showing wherein the importance or intricacy consisted.

HOFFMAN moved for a ilruck jury,--on an affidavit Rating the cafe to be intricate and important, Jones contended that it was defeflive in not Slewing where-J in importance or intricacy confiRed.

<p>After pleading the general issue, the defendant obtained his discharge under the insolvent law. His then attorney, who had long since declined business, gave notice that he would give this special matter in evidence. The action being now again proceeded in, application was made for leave to strike out the notice, and -plead the discharge, as the mistake of the attorney formerly employed was the reason why it was not before done.</p> <p>The known rule is, that an insolvent must plead his discharge. In the present case it ought to *have beenywis darrein continuance. It is a defence stricti juris, and not to be favored.</p>

The attorney in this cause, from a sudden and dangerous illness, (see Jackson v. Brown, vol. 1, 152. S. P. as to trial at circuit,) was unable to attend tbe execution of tbe writ of inquiry, in consequence of which tbe plaintiff’s attorney was requested to postpone the execution of it, but he refusing to do this, went on and executed the writ, upon which pretty smart damages were given. Application was now made to set aside the inquisition.

Ejectment for lands in Montgomery, in which a verdict was taken for the plaintiff, subject tp the opinion of the court on the following case: In, April 1773, Jelles Eonda demised to Frederick Goose, and Elizabeth, his wife, and their heirs forever, the premises in question, rent free for the first eight years, reserving from thenceforth forever thereafter, an annual rent of six pounds, with a power of re-entry in case the same should be unpaid for twenty-one days after due.

<p>[f circumstances tend to show a paper served by being put under a door has been received, the court will, unless the contrary appear, presume it has come to hand.</p>

THE defendants at the New-York circuit, moved to put off tke trial, for want of the teftimony óf a material witnefs, who was a tranfient perfon, and had once been within their power, The court refuting to do this, a verdi& went againft them, in confequence of which, and the abfence of their principal coun-fel, the defendants moved to fet it afide.

Caines applied for a rule ordering tbe plaintiff^ who had obtained a verdict, to make up the record within a given time, or that the defendant have leave to do it for him, as the verdict was complete evidence for the defendant in a suit in chancery between the same parties. Smith resisted the application, because the defendant had never requested it to be done. •

<p>In future no trial by proviso without previous rule to be obtained on notioe. Counsel of the court have privilege.</p>