Volume 2 — Cowen's New York Reports

<p>A circuit judge will not be allowed to act as counsel in the court of errors.</p> <p>Whether an attorney,counsellor, &e., holds, as such, an office or public trust, within the meaning of the 7th section of the 5th article of the constitution 1 Quere,</p>

jN error to the Supreme Court. The action in the Court below was assumpsit by Knickerbacker against Col den. The return to the writ of error contained, as usual, the judgment record only, by which it appeared that the plaintiff below declared against the defendant upon a promissory note, alleged to have been given by the defendant to one Squires, or order, for $570 54, dated Sept. 21, 1820, and payable one year after date.

Error from the Supreme Court. The facts appear sufficiently in the report of the same case in the Court below. (20 John. Rep. 214.) The reasons for the judgment of the Supreme Court were assigned as in 20 John. 225 to 229.

<p>Where the complainant in Chancery omits to reply, and sets down the cause for hearing on bill and answer, the latter will be taken as conclusive prooí of the facts which it sets up by way of defence.</p> <p>If the complainant mean to question the truth of the answer, he should reply, and give the defendant an opportunity to take his proofs.</p> <p>A mortgagee may pay off a senior incumbrance; and on bill filed to foreclose, and to be reimbursed the sum which he has paid, he is entitled to a decree for indemnity out of the proceeds of the sale of the mortgaged premises.</p> <p>But whether,' if he purchase the mortgaged premises under the senior incumbrance, he can have a decree for the price which he has paid, to be allowed out of the proceeds of a sale under his mortgage ? Quere.</p> <p>Whether, in judgment of law, the interest which he thus acquires as purchaser is a full equivalent for the money which he pays? Quere.</p> <p>Where W. held a mortgage against F., on lots ill the city of New York, subject to a tax due to the corporation, and the lots were sold at auction for the tax, and the executors of the mortgagee bid them in for a term of one year, at the amount of the tax, anil then filed thi ir bill praying to be reimbursed by a sale of the mortgaged premises under a decree of foreclosure; held, that they were purchasers in their own right, and must rely upon the use of the premises, during the term, for their reimbursement.</p> <p>A tax laid upon real estate in the city of New York, for the purpose of opening or improving a street, &c., takes preference of a prior mortgage-</p>

All the material parts of the pleadings and proofs are stated in the- opinions of the Judges; and see, also, 5 John. Ch. Rep. 174, S. C., where the pleadings and the proofs, considered material by the Chancellor in the Court below, are stated together with the,decree appealed from, and the reasons of that, decree.

The respondent filed his bill in the Court below against the appellants.

William Wilson, the father of the appellants, late of Northumberland, in Pennsylvania, deceased, held an interest in a contract with one Charles Williamson, for 6000 acres of land in Steuben and Ontario counties, which Williamson was to convey for the consideration of £795, New York currency.

<p>Sept. 11, 1823. S. Stephens, for the respondent, moved to set aside a default for not answering the petition of appeal in this cause; and for a rule requiring the Register of the Court of Chancery to send hack to this Court all the papers, rales, orders and decrees, relating to the appeal, which were remitted by this Court on obtaining the default; and that the respondent have leave to proceed in the cause, as if no default had been entered.</p> <p>The default (as appeared by the affidavits) had been taken under the following circumstances: The respondent (being then and still insolvent) obtained a judgment at law against the appellants, in the Common Pleas of Washington county. The appellants filed their bill, in the Court of Chancery, for relief against the judgment, and obtained an injunction against proceeding thereon, which was afterwards, (Nov. 12,1822,) on the coming in of the answer, dissolved. On the 12th Dec. 1822, on a motion for a re-hearing, the order dissolving the injunction was confirmed. Dec. 18th, 1822, the First Judge of Washington Common Pleas granted an order staying all further proceedings upon the judgment, on the part of the respondent, until the further order of that Court, upon paying the amount of the judgment into the hands of the Sheriff of that county, on the execution issued in the cause. Dec. 27th, 1822, the appellants appealed to this Court, from the order made upon the motion for a rehearing. Upon this state of the case, the counsel for the respondent, intending to move to quash the appeal, it was agreed between him and the counsel for the appellants, that the papers for that motion should be served when conve nient for the respondent’s counsel, and that they- would have the motion disposed of before answering the petition of appeal. Notice of that motion was accordingly given, for the 3d Tuesday of Feb. 1828, but the motion was afterwards postponed, by agreement of counsel, for one week, and was then again postponed, by agreement, on request of the appellants’ counsel, till it should be mutually convenient for both counsel to go to Albany, in order to attend to the motion. April 4th, 1823, the last day of the session of this Court, without giving any notice to the respondent, his solicitor or counsel, of his intention so to proceed, the counsel for the appellants moved for and obtained an order of this Court, reversing the order of the Chancellor dissolving the injunction, for want of an answer to the petition of appeal.</p> <p>On the 13th Jan. preceding, the usual order had been obtained, to answer the petition of appeal in eight days, &c.(a) which was, with a copy of the petition of appeal, served on the solicitor for the respondent, on the 25th of Jan. last. It was upon an affidavit of these facts, that the order for a default was taken. Since these proceedings, the money received upon the execution had been paid to the attorneys of the respondent, on their giving security to the Sheriff to refund the same in the event of his being made liable for it. None of the above stipulations or arrangements were reduced to writing between the counsel. And</p>

The hill in the Court below was filed by James against Johnson and Morey. Issue was joined, and proofs taken ; upon which the cause was heard by the Chancellor, who decreed in favor of the defendants. From this decree James appealed.

On the 8th February,. 1819, Frederick Davis- executed to the respondent, his promissory note and mortgage for $1065 03, with interest. In March, 1819, the respondent purchased of the appellant a span of horses, waggon, &c., for $285. Of this sum, 75 dollars were paid when due. The remainder was payable . the 1st January, 1820; but was not paid a.t that time.

Error from the Supreme Court. This was one among several causes, the fate of which was supposed to have been fixed by the decision in Anderson v. Jackson, (16 John. Rep. 382.) The present cause related to the same subject matter, and involved a construction of the same will, which called forth such elaborate discussion in that cause, not only from the counsel but the Court of Errors.

This cause having been placed upon the list of causes for argument, pursuant to the 14th rule of September 18th, 1818; and having been called and passed twice, in consequence of the appellant not being ready to argue, the respondent took a decree, dismissing the appeal with costs, pursuant to the 15th ' rule of this Court, (September 18th, 1818;) and now, ,

This cause having been argued at the present session by H. R. Storrs for the appellant, and J. Sudam and J. Tallmadge for the respondents; and the decree, of his Honor the late Chancellor, unanimously affirmed;

<p>Amount of the allowance to constable or other person, for serving subpoenas, in criminal cases, is a matter of discretion, in. the board of supervisors, with which this court will not interfere.</p> <p>They may be served by any person as in civil causes.</p> <p>It seems that 19 cents for service, besides mileage, would be toe high.</p>

Error, from the Common Pleas of the county of Onon- - mt . , . . . , _ , _ daga. The action was brought, in the Court below, by Barker against Rew, on a warranty of title in a horse, bought by Barker of Rew. . A verdict having been found for the plaintiff, a motion was made for a new trial, on a case. The motion was denied, and leave given, by the Court, to turn . . , _. , . , , the case into a special verdict; on which the present writ error was brought.

This cause was tried April 12th, 1821, when a verdict was foun(l for the plaintiffs, subject to the opinion of the Court, on a case, which was made; and in August term, 1822, the Court delivered their opinion in favor of the defendants.

Debt, on the penalty of a bond for $3000, conditioned for the payment of $1500, and the performance of other acts; with a partial assignment of breaches. Plea, non est factum, with notice of set off, of accounts. The cause being referred, the referees reported a balance of only 13 dollars due to the plaintiff, who filed the report, and entered a rule for judgment, upon the penalty.

<p>In an action af assumpsit, brought in this court, if the plaintiff recover'$50 only, he is not entitled to costs, but must pay costs to the defendant. And the costs, on motion, will be set off against the plaintiff’s damages.</p> <p>If in an action in this court, the accounts of the parties, proved at the trial, exceed $400, and the plaintiff recover a sum not exceeding $50, whether he is entitled to costs, or musl pay costs to the defendant ? Quare.</p> <p>The proviso to the 1st section of the $50 act, which denies jurisdiction to a justice of the peace, of matters of account, when the sum total of the accounts of both parties, &c., amounts to $400, extends to those accounts, only, which are open and unliquidated between the parties.</p> <p>When they have been settled, the balance alone is the account between them. And unless this balance, with the other accounts, exceed $400, a justice has jurisdiction. Accounts, as used in the proviso to the 1st section of the $25 act, have the same import as ia the proviso to the 1st section of the $50 act.</p> <p>So in the proviso to the 5th section of the act concerning costs.</p> <p>Accordingly, where on the trial of a cause at the circuit, the plaintiff proved a note of $200 against the defendant, Who then proved a note of $600 against the plaintiff, and that, when the latter was given, the plaintiff agreed to destroy the former; but the defendant claimed nothing as due upon the latter; hela, that neither of these notes Could be considered accounts between the parties ; and the paintiff having recovered $50 upon other claims ; held, farther, that if the plaintiff could Be entitled to costs in this court, on the ground that the accounts of both parties, proved at the trial, amounted to $400, neither of the said notes could be considered as part of such accounts.</p>

Un certiorari to a Justice’s Court. One question was, whether the evidence, in the Court below, sustained the action. It was assumpsit, by Martin against Roe, for keeping the mare of the latter. It appeared that the plaintiff agreed to exchange his mare for the defendant’s horse.

<p>A plea in anon-joind’er"5 otb®rs as de* fendants, cannot be reeeiv®^ea aJte^ar ea g. the general issue.</p>

On certiorari to a Justice’s Court. The suit was by summons in the Court below, by Stillman and others against Legg, and the constable returned the summons thus: “ Personally served, May 14th, 1822. Fees $0 13. Thomas McKnight, const.” The return was objected to as insufficient but the objection was overruled by the Justice.

judgment for the plaintiff for 25 cents, with costs On certiorari to a Justice’s Court. Assumpsit in the Court below, by Birdsall against Sprague, for money had and received. The plaintiff crossed Cayuga Lake on the ice, with his own sleigh. He commenced crossing within about 6 miles of the Cayuga Bridge, aud crossed in a direction which brought him off of the lake within about 60 rods of the bridge.

<p>a parol war- ^ appear in a justice’s ándm^y be Proved bY the attorney himself.</p> <p>A constable cannot recover his fees upon an execution, where he has levied upon property and returned that it remains on his hands for want of buyers.</p> <p>To entitle him to his fees, he must levy the money, except where he is prevented by the act of the plaintiff, or by operation of law.</p> <p>In the former case he may recover his fees, though he have levied only, and not sold.</p> <p>He must levy and sell in due season.</p> <p>If no bidders attend, he should postpone the sale, and give notice to the plaintiff, who should attend and bid himself.</p> <p>And if he do not the constable will be excused in returning that the property remains on hand for want of buyers.</p> <p>So he would be excused in making such a return, if he could not sell the property, but at a great sacrifice.</p> <p>Y et after he has made such a return, he must proceed and sell, the first opportunity.</p> <p>If he do not sell within thirty days, he loses his lien as against other executions.</p> <p>The same rules of law, which govern sheriffs in the execution of process from the higher courts, govern constables in execution of a justice’s pro/ ess, except where some statute intervenes.</p>

On certiorari to a Justice’s Court. The action was trespass fn the Court below, by Kelly against Horton & Smith, for pulling down the plaintiff’s fence. Smith, as overseer of highways, and Horton, as coming in his aid, justified this, and proved by a witness, that he heard the plaintiff tell • ' Smith, the overseer, that the former would open his fence when the latter wished to work the road. Verdict and iudgnjent for the defendants.

On certiorari to a Justice’s Court. Fenton sued Smith, in the Court below, and, after issue joined, the cause was twice adjourned, by consent. The second adjournment was under a stipulation of the defendant, that he would not delay the trial further, but would absolutely come to trial on the 17th Jan. 1823, the last adjourned day.

On certiorari to a Justice’s Court. Debt in the Court below by Munson against Lyon, for the penalty imposed by the 25th section of the ‘ act to regulate highways' (2 B,. L. 270.) for obstructing a public highway in Oxford, Chenango county. Plea the general issue. The cause was tried by jury, Sept. 2Sth, 1822.

On certiorari to a Justice’s Court. The action was case in the Court below, by Ames against Walker; “For that the defendant did fraudulently obtain a judgment, or a certain part thereof, against the present plaintiff, to his damage' $25.” The defendant pleaded the former suit in bar, which was overruled by the Justice.

On certiorari to a Justice’s Court. The Justice permit-ed one Heermance to appear for Tan Every, who was the plaintiff below. When this was objected to by the defendant, the Justice stated that the plaintiff, being sick and unable to attend himself, had sent for him the day before-, and requested him to permit Heermance to appear for him cn ^ trjal. He accordingly admitted' him without any evidence of his authority, and gave judgment for the plaintiff

On certiorari to a Justice’s Court. Spoor sued Bullard On & Lord, in the Court below under the 50 dollar act. the parties appearing, the Justice requested Lord, who was an infant, to nominate a guardian ad litem, which he declined. The plaintiff then moved, the Justice to appoint one for him, and he appointed John Doe, a fictitious person, to be his guardian. Issue was then joined, and the plaintiff ¿eman(jed and had a venire for a jury of six.

On certiorari to a Justice’s Court. The action was trover, m the Court below, by Swartwood against Butts, foi a bureau, which the plaintiff had bespoken of one Piper, a cabinet maker. He paid Piper for the bureau while at his shop. Piper then, before it was trimmed and varnished, removed it to his house, and sent word to the plaintiff to come and take it away, as he feared it might be taken on an execution against him.

<p>Th® Pl!“n-tiff in a justice's court own summons! either where he is himself a ■constable or specially deputed for the purpose.</p> <p>Admitting evidence of a" plaintiff la declaration in his own fayqr, if objected to, jq fatal on ■error, though the court below direct the jury to disregard it.</p>

On certiorari to a Justice’s Court, Shafer declared Against Keyser in the Court below, thus: “ Plaintiff declares against the defendant for one barrel of salt, $5 ; one note of hand— bal. of accounts for different kinds of liquors—claims $50.” To this declaration the defendant interposed a general demurrer. The plaintiff then discontinued, or entered a nolle prosequi, as to all the causes of action except the account for the salt, and joined in demurrer.

In partition. Schermerhorn and Clute, and Maria the wife of Miller, were seised in fee as tenants in common in equal shares of a house and lot in the city of Schenectady. Miller had issue by his wife, born alive. Proceedings were then commenced in partition, and this Court ordered a sale of , . , . . . the premises by the commissioners, pursuant to the act, (1 R. L. 510, s. 5,) and on the 25th day of December, 1823, the premises were sold to Resolved Given, for $344 50.

J. A. Spencer,, moved to set aside a writ oí certiorari to a Justice’s Court. The affidavit, on which the certiorari was founded, detailed the facts so as to exhibit the errors relied upon, but omitted to state the verdict or judgment.

The defendant made an affidavit thus: “ That no actual ouster of the lessors of the above plaintiff, or either of them, has been committed by this deponent; and that he, this deponent, is advised by his counsel, and verily believes truly, that this ejectment may involve a question between tenants in commonand his attorneys, instead of the common consent rule, drew up a special one, which after proceeding in the usual form to the words, “ plead thereto not guilty,” ran thus :…

Streeter having an unliquidated claim against the county óf Washington, assigned it for á váluabTe considera to Dot7) who presented the claim to the board of stipend sot's And it was audited by tliém At f 193 95. Doty, at the some time, gave notice to the bounty treasurer and the stipervisors, that hé was the assignee.

The defendant was indicted in the Court of General Sessions of the Peace, for feloniously passing several counterfeit bank bills. A Circuit Court, and Court of Oyer and Terminer, were duly appointed, to be holden at the Court house in the town of Salem, in the county of Washington, on the 1st Monday of January, 1824; on which day Judge Walworth appeared, and opened the Circuit Court, and proceeded to business therein; but neither of the county Judges arrived during that day.

<p>A. Sampson, moved for a reference in this cause.</p>

At the last term, on affidavits that a capias ad respondendum had issued without an ac etiam, on which the defendant had been arrested but refused to endorse her appearance, and on motion in behalf of the plaintiff, a rule was obtained that she show cause at this term why she should not file common bail, or that the plaintiff have leave to file it for her.

Sudam moved for an attachment against the defendant, for non-payment of costs.

Judgment for the plaintiff in each cause. A ji. fa. in favor of Peckham was delivered to the Sheriff April 29th, 1823, for $1000 debt and $15 25 costs : and afterwards the Sheriff received another ft. fa. in favor of Oakley, for $1454, debt, and $16 34 costs. The Sheriff having sold the personal property of the defendant, and that not being sufficient to satisfy the executions.

On motion for judgment as in case of nonsuit, for not going to trial at the Otsego Circuit, in September last, it was i ,• opposed on the ground that it had been the practice of the Circuit Judge in that county, at the former Circuits, to call over the calendar on the first day of the Circuit, but not to take it up in order till the second day; that such was the case at the last September Circuit, though the Judge did not ,, , , . ^ ° . declare that he intended to adopt the…

<p>On motion for judgment as in case of nonsuit, on the usual affidavit, it was objected, that the jurat of the affidavit <vas subscribed, “ G. M. G. commissioner under act 24th March, 1818.” This commissioner resided in the city of New York. A certificate of the Secretary of State was •iiv iz-* ir-« , _ produced, that the Governor and Senate had appointed Commissioners for that city; and the question was, whether this vacated the office of commissioner under the act of 24th March, 1818 in cities. (Yid. sess. 41, ch. 55, and sess. 46, ch. 197, s. 1, 4.)</p>

C. F. Ingalls moved for a mandamus to the Judges of the Court of Common Pleas of Washington county, commanding them to vacate a rule made by them setting aside a report of referees in a cause before them in which Bassett was plaintiff and M. H. & A. S. White were defendants, and that they affirm the report which was in favor of Basset; and one point made was, that the Common Pleas in setting aside the report proceeded upon the ground that the principal witness sworn before…

Wallis moved for a rule that the attorneys for the plaintiff pay the defendant $100, being a part of his costs which had been taxed m this cause, and that John Brady pay the balance. The suit was instituted upon a promissory note, negotiable, executed by the defendant to the plaintiff, who, at the time >of the commencement of the suit, and ever since, resided without this state, and no security for costs had been filed.

On certiorari to a Justice’s Court. It was moved that the Justice amend his return, by stating certain things and omitting or denying others.

A motion was made for an attachment against Elizabeth Vrooman, one of the lessors of the plaintiff, for non-payment of the defendant’s costs, which had been taxed on a verdict in his favor at $33 50. Her counsel objected, that the lessor being a female is not subject to arrest and imprisonment for costs, incurred as a lessor, unless they amount to more than 50 dollars.

July 1, 1823, the defendant’s attorney received a decía- . . . . ration containing the common counts in assumpsit, and 12th, on a proper affidavit, he obtained from a Judge of the Common Pleas, who was a counsellor, &c., an order “ that all further proceedings be staid until the plaintiff’s attorney deliver to the defendant’s attorney, a bill of particuJ J r lars for which this action is brought.” In the title of the order, in the name of Cornelius V. S. Roosevelt, the…

<p>JUDGMENTS for the plaintifi on confession by bond and warrant of attorney.</p>

W. M. Oliver, moved for a mandamus to the Surogate of the county of Yates, commanding him to grant letters of administration of the goods, &c., of Alva Bugbee, late of the town of Benton, in the county of Ontario, (but now Yates,)to Jesse Bugbee. A. Bugbee died in March, 1821. At the time of his death he resided in the town of Benton, in the county of Ontario.

The Sheriff arrested the defendant upon the capias ad res- .

<p>I. Seel ye, moved for a mandamus to the Judges of the Couit of Common Pleas of Otsego county, commanding them to grant a new trial in a cause in that court between Baily plaintiff, and Stocker defendant. The action was slander for charging the plaintiff with being a thief. On the trial, witnesses were sworn for the plaintiff, but none for the defendant. P. T. testified that he heard the defendant say to the plaintiff, “ You will not only lie, but steal.” C. B. swore that he heard a part of the same conversation: the plaintiff asked the defendant if he had not said, that he the plaintiff was a thief, and he could prove it ? that the defendant did not reply. The plaintiff then repeated the inquiry, and the defendant then said, “ You will steal.” J. F. swore, that the defendant speaking to him of the same conversation, said that he and the plaintiff had had some dispute; the plaintiff called him a liar, and he said to the plaintiff, “You will steal,” or, “You have stolen ;”‘and he told the witness further, that the words were, “ that the plaintiff was a thief or would steal,” or something like that. He further told this witness, that at the time he made this charge against the plaintiff, he did not say he could prove it; and he thought that would be a defence to the action. B. F. swore, that he heard the conversation alluded to by the first and second witnesses, but did not remember the words distinctly. They were very insulting and abusive, and he did not hear the plaintiff use any improper language to the defendant. G. W. heard the same conversation ; did not rememper the words, but understood the defendant to have made a general charge of stealing against the plaintiff. J -y{. and W. H. proved that the defendant was a man of considerable property: andón J. W. being cross-examined, he said he served the. writ on the defendant; the plaintiff told him that the defendant had said to him, “You will steal, won’t you?” but did not. say that this was the only charge the defendant had made against him.</p> <p>The defendant’s counsel moved for a nonsuit on the ground that none of the words proved were actionable; His Honor the First Judge, being of the degree of counsellor at law, was of opinion,, that the motion should be granted, and assigned his reasons at length.; but he was overruled by the other two Judges on the bench, who decided that the cause should go to the jury, whose province it was to give a construction to the words.</p> <p>The First Judge then charged the jury that altho’ his individual opinion was unaltered that the plaintiff ought to have been nonsuited, yet a majority of the Court thought otherwise, and it was the opinion of the other members of the Court that he was about to deliver to them. He frankly and candidly invited them to consider it as the opinion of the Court; and that he might very, probably be mistaken, and the other members of the Court be right. He then stated the following propositions : 1. It is the province of the jury to construe the words, and determine their meaning ; and if they should find that the word will, as used, meant that the plaintiff would be guilty of stealing hereafter, then they ought to find for the defendant. 2. If they should find that the word will, as used, meant that the plaintiff had committed theft, then the plaintiff would be entitled to a verdict. The jury found a verdict for the defendant. A motion was afterwards made for a new trial, but denied.</p>

<p>rule for deng carries s of course, icon-ex-n the</p>

J. Dickson, moved to set aside the default for not joining in error, and all subsequent proceedings for irregularity.

Pursuant to an act passed June 19th, 1812, entitled an act to divide the towns of Greenwich and Berlin, in the county of Rensselaer, into three towns, these two towns were divided into three towns, by the names of Greenbush, Berlin and Sandlake: and the second seetidn required “ That as soon as may be after the first Tuesday of April next, the Overseers of the Poor and the Supervisors of the said towns shall, after due notice given by any one Supervisor, meet at the dwelling…

A common rule had been entered against the defendant thus : The Sheriff of Onondaga county having returned the capias in this cause cepi corpora, ordered, on motion of Messrs. Butterfield & Loomis, attorneys for the plaintiff, that the said Sheriff bring in the bodies of the said defendants, in 20 days after service of notice of this rule, or show cause, on the first dáy-of the next term of this 'Court, why an attach ment should not issue-against him..

<p>Motion for judgment ai in case of non-suit cannot be made by one of several defendants without the concurrence of the others.</p> <p>Where all the defendants move for judgment, if it appear that either has no right to move, as if judgment be against him by default, the motion will be denied as to all.</p>

<p>Assumpsit. A motion was made in behalf of the defendant, on the usual affidavit, to change the venue from Steuben to Chenango : but being opposed by an affidavit of the plaintiff, in the usual form, showing that he had a greater number of witnesses residing in Stéuben, than the defendant’s affidavit showed on his part, who resided in Chenango ; in order to procure a change of the venue, notwithstanding the balance of witnesses was against him, the counsel for the defendant produced and offered to the counsel for the plaintiff a stipulation in writing, signed by the defendant’s attorney, “ to pay all the expenses of the plaintiff’s witnesses who should attend to give evidence in this cause from the county of Steuben, or from any place within 30 miles of the court house in that county and insisted that the Court would change the venue upon such a stipulation, though the balance of witnesses be in favor of the county where the venue is laid.</p>

Ryan, recovered judgment against Suitor, for $52 71, before a Justice of Herkimer county, filed a transcript with the Clerk of that county, and sued out a fi.fa. under which the Sheriff levied on a term of years, in a lot of land belonging to Suitor, and after advertising it for sale for six weeks, in a public newspapei of the county, sold it at public auction to the relator, Merry, who was the highest bidder.

The petition was for the payment of certain moneys awarje¿ to the owners cf a certain piece or parcel of land described in the said petition, on the enlarging and improvfog of Maiden lane from William street to Pearl street in the second ward of the city of New York.

On certiorari -to a Justice’s Court. The affidavit on which the certiorari was allowed, was entitled and began thus : “ Justice’s Court. George Whitney ads. William Warner Sf j Peter Crissey. j Before James Squires, Esquire, one of the Justices of the Peace of the county of Broome, 8th December, 1823. ' Broome County, ss.

The declaration contained. 8 counts, and the.last set forth a demise from IS.persons, none of whom, (as the tenant stated jp pjg affidavit,) he was informed and believed, pretend to . . , . ' 1 claim any.titie to the premises in question. On this affiday¡t 3

<p>The rule to discontinue, on receiving ■ a plea of an insolvent discharge, is not a rule bf course."</p> <p>Motion to stay" proceedings till the costs of a former suit be paid, comes too late after judgment perfected.</p>

Long sued Cutler by capias out of this Court, on which t^le defendant, Sheriff of Essex, arrested him, and was ruled to bring in the body, but not doing so, was attached and entered into recognizance to appear at October term, 18] 9. On that recognizance the present action was brought, , , .. . , . , , , : At the return oí the attachment, Adgate neglected to apPeari an<^ his recognizance was by rule of this Court delivered over to the attorney of Long for prosecution.

<p>Judgment was given by a Justice of Yates county in fa-' vor of Sholts against Champlin, for $46, on the 22d Aug. 1533, On the 25th, Sholts filed a transcript with the County Clerk, and took out execution on oath, and placed it in the Sheriff’s hands,</p> <p>On the other hand, Champlin, on the very day the trail-script was taken, filed with the Justice-a notice of appeal, a bond as required by law, and paid all the costs required of him by the Justice on receiving the appeal. Notice of the appeal was given to the Sheriff who nevertheless was proceeding under the direction of Sholts to sell Champlin’s property. On this state of facts the First Judge of Yates county granted an order to stay proceedings upon the execution ; and at the last January term of the Yates Common Pleas, that Court set aside the execution for irregularity, with costs, though the counsel for Sholts objected that the First Judge had no authority to stay proceedings upon it; and that the Court had no authority to set it aside. Previous to setting aside the execution, viz. at October term last of the Yates Common Pleas, the cause was tried and a verdict found for the appellee for only 15 dollars, instead of 46 dollars, the sum recovered before the Justice, on which the Court gave judgment.</p> <p>On the cause being moved for trial upon the appeal, it was objected that it did not appear from the return that the notice of the appeal had been filed within four days from the time of rendering the judgment; nor that the costs in the Court below, had been paid within the four days; nor had the bond been left with the Clerk to be filed within the time required by law; nor had the Justice endorsed upon the bond that he approved of the security. Upon these grounds the appellee by his counsel, contended that the appeal was irregular; but the objection was overt uled.</p>

S. L. Edwards and H. Bleeclcer,:moved for a rule tha,t certain moneys which had been levied upon afi.fa. issued out of this Court, in favor of Chichester & Van Wyck, against the above defendants, and paid over to Chichester The affidavits upon which the motion was founded, were entitled thus: “ Supreme Court.

Ejectment. The plaintiff hadjudgment in these causes in the Supreme Court. The defendants removed them by writs of error into the Court for the trial of impeachments and the correction of errors, where the judgments were affirmed on the 18th day of December last.

<p>Trespass de boms asportatis against both defendants, who severed in their pleas. Raymond, pleaded the general issue, andtwo special pleas/ by which he justified taking and carrying away the goods as Sheriff of St. Lawrence county, tinder a plaint in replevin. To these pleas the plaintiff replied, that the plaint had been set aside for irregularity. Demurrer and joinder,.which is not yet determined. Upon this state of the pleadings, the plaintiff noticed-his cause for trial at the Iast-St. Lawrence Circuit, holden the 9th February instant, as well to try the issue as to assess contingent damages on the demurrers ; but the jury, under the direction of the Court, found a verdict for the defendant. The same jury found a-verdict against Ford, for $178 60. The demurrers were noticed for argument at the present term.</p>

The defendant became special bail for Reynolds, on the 26th May, 1821, at the suit of Thorp. The bail piece was filed the 29th of May, and on the 31st the plaintiff’s attorney entered an exception thereon. No notice of the exception was ever given to the bail, nor did he know anything of it’ until about five months after it was entered.

The declaration was entitled in May term, 1822. It was in case, for debauching the plaintiff’s daughter, per quod servitium amisit, from the 18th day of August, 1822, being after the action commenced ; which was so laid through a clerical mistake of the plaintiff’s attorney. And the cause was carried-down for trial, tried, and a verdict found for the plaintiff, before the mistake was discovered by the plaintiff’s attorney.

<p>On certiorari to a Justice’s Court.</p>

<p>A judgment was docketed in the Common Picas of ®-ensseIae1' county, in favor of J. G. & H. Snyder, against Barnard Wagar, for $1575 10, on which afi. fa. was issued) and on the 15th August, 1822, the Sheriff of Rensselaer county sold a farm of Wagar to the Snyders at a bid of $888, and executed to them a certificate of sale. On the November, 1823, Wagar confessed a judgment before a Justice of Rensselaer county, in favor of J. P. De Freest, ^01‘ $25 27 damages, with 81 cents costs, a transcript whereof was filed in the Clerk’s office. On the same day, De Freest applied to the Sheriff to redeem the farm sold as a judgment creditor, and tendered to him the amount bid by ° * J Snyders, with 10 per cent, interest from the time of the sale. The Sheriff received but 7 per cent., thinking himself authorjzed to take no more, but a few days after, having taken legal advice on the subject, he consented to receive the residue. The judgment before the Justice was confessed under the following circumstances : On the 14th November, 1823, Wagar being indebted to De Freest, on a small note and book account, the latter told Wagar that he wished to become a judgment creditor of his, for the purpose of redeeming his farm fr0m the sale to the Snyders, and offered him $1800 for e J J ' it. Wagar accepted of the offer, and the same day confess-a jU(}grnent for the balance, due to De Freest, amounting together with costs to $7 27, before a Justice in Pittstown. The next day the parties proceeded to Troy, and there learning that so small a judgment would not entitle De Freest to redeem, not operating as a lien on the lands of Wagar, De Freest advanced him 18 dollars, which, together with the small judgment, formed the consideration of that upon which De Freest claimed to redeem. No statement of the consideration of the judgment was sworn to or filed, agreeably to the 7th section of the 50 dollar act. On the 20th November, 1823, the Snyders called on the Sheriff for a conveyance, which the latter declined giving, on account of De Freest’s claim to redeem. On these facts,</p>

On certiorari to a Justice’ Court. In this cause a motion was made in behalf of the defendant in error for a rule that the Justice amend his return.

The defendant was convicted at the last Oyer and Tar miner in Seneca county, of having feloniously forged a bond with intent to defraud one John Sinclair.

On certiorari to' a Justice’s Court. Jacob I. Hoover rnipleaded. Dexter before a Justice, and obtained judgment against him.

Assumpsit for money had and received. The action was brought to recover back money which had been rightfully received by the defendants, as trustees of a school district in the town of Louisville, in the county of St. Lawrence, under a resolution of the inhabitants of that district, imposing a tax on the plaintiff and others for the intended purpose of building a school house; but which resolution was after-wards rescinded and the purpose of building the school house was…

A feiv/ict having been rendered for the plaintiff, a motion was now made for a new trial upon the ground of newly discovered evidence ; and the affidavits of several witnesses were produced tending to impeach the plaintiff’s claim, which witnesses the defendant swore he knew nothing of till after the trial.

<p>An alternative mandamus had issued to the defendants commanding them to allow to the overseers of the poor of the town of Aurelius, in the county of Cayuga, the expenses of supporting four paupers, which were claimed to be a proper county charge, on the ground that they had no settlement in this state.</p> <p>In their return, the defendants, without denying that the expenses had been properly incurred under the order of a magistrate, pursuant to the 25th section of the act for the relief and settlement of the poor, (1 .R L. 287,8,) stated that the overseers of the poor of Aurelius, had procured an order for the removal of the paupers to the town of Farming-ton, in the county of Ontario, as their place of legal settlement, which order was executed by a removal of the paupers to the latter place; that the overseers of Farmington having appealed from this order to the General Sessions of the Peace of Cayuga, the overseers of Aurelius took back the paupers, and supported them, but neglected to try the appeal; that they rejected the application of the overseers of Aurelius, on the ground that until the order of removal was reversed, the paupers must be adjudged legally settled in Farmington.</p> <p>The return also stated that a second application to the Supervisors, to allow the expense of these paupers, had been rejected, not only upon the ground above stated, but also on the ground that one B. a convict in the state prison, had been examined on oath, before the justice, and swore that the paupers had no fixed place of settlement or legal residence.</p> <p>On this return it was submitted whether a peremptory mandamus should go.</p>

At the last term a rule was obtained requiring the Supervisors of Cortland county to show cause, on the first day of the present term, why a mandamus should not issue against them commanding them to allow Mr. Mallory’s account for his services as Clerk of the court of oyer and terminer and general sessions of the peace of that county, from May, 1815, to August, 1819.

J. A. Collier, moved for a rule to show cause why a mandamus should not issue to be directed to the Supervisors .of Broome county, commanding them to allow the account of A. Doubleday, late Clerk of that county, for his services as Clerk of the sessions and oyer and terminer from September, 1817, to December, 1820, in engrossing the minutes of these courts, and copying and entering the same.

Assumpsit on note, by payee against maker. The plain* tiff Averred that the defendant made his certain note, in writing, in the words and figures following, to wit: “Due Lanson Russell, or bearer, one day from date, two hundred dollars, twenty-six cents, for value received: as witness my ‘ ' • J ' J hand, this sixth day of January, in the year of our Lord 1823.” By means whereof, &c., but did not aver that this note had been delivered.

On certiorari from the general sessions of the peace of the v x county of Albany. The Court below, on appeal,- affirmed an order of two Justices, removing Gerrit Clute, his wife and three infant children, from the city of Albany to the town of Niskayuna.

Error from, the Mayor’s Court of the city of Albany. The action in the Court below, was brought by Newman against Van Antwerp. The declaration contained two counts.

False imprisonment. Plea, that on the 8th day of F'e’bru.a.ry, 1822, one L. recovered judgment before a Justice of the Peace, for $29 21, and had execution thereupon, returnable in ninety days, against Griffin, the plaintiff in this sujt whereon he was imprisoned; and that Mitchell, .the , . - . , ■ ’ 1 ’ , defendant m this suit, was the attorney oí L. and conducted su^ before the Justice, and caused the plaintiff, .Griffin, to be imprisoned, which is the same trespass…

Ejectment, fo 'recover 20 acres of land on 'lot No.'93, ir the town of Manlius, and county of Onondaga, tried 'at the Onondaga Circuit, in June, 1822, before his honor (the ¡atej Chief Justice Spencer. The plaintiff’s declaration ' - *■ . , contained two demises—one ’from Samuel Merritt, tin the 29ih day of February, 1816, and the other from Benjamin Stanton, on the 1st-day of January, 1822.

Declaration in assumpsit, upon the statute “ for the relief of creditors against heirs and devisees,” (1 R L. 316,) thus: “ Albany, ss.

The people, &c., to J. S., N. P., and J. P. 0., Esquires, three of the Judges in the Court of Common Pleas, and Jus- — • tices of the Court of General Sessions of the Peace, in and for the county of Suffolk, Greeting: Whereas an appeal was lately brought and heard in our Court of General Sessions of the Peace, in and for the said county of Suffolk, held before you, from an order made by J. R. & B. W., Esqs., two of our Justices of the Peace in and for our said county,…

<p>In partition, money paid into court for use of owners unknown, paid out to claimants, without requiring security to refund, as provided by statute, (sess. 36, ch. 100, s. 7, 1 R. L. 511,) it appearing that the sum claimed was small, and the claimants wealthy.</p>

At the last term, the plaintiff had stipulated to try this cause at the then next Circuit Court in the city of New York: and not having done so,

<p>Feme snU is sued, and mar-theSsuit.eiThm nee.d ,n?4 be subsequent but^affidavits notices, &c., cording to the original title of the cause, if they treat ^p^rt^they are defective; the marriage be mentioned in the title as mere descripofotbe pchra feme.</p> <p>affi^d®tre entitled in two which’ "was rightly, and the other wrongly' stat-£da™dth®®£ ceeded to 7ause, to the tb^this^aá sufficient.</p> <p>■An affidavit of merits to prevent an in-Xe rule of N™ vember term, 1808, if made by the attor-</p> <p>ney, should contain a good excuse for its not being made by the defendant.</p> <p>Though not technically a party, yet one who marries a feme defendant pending the action, lB substantially a defendant, and may accordingly make an affidavit of merits.</p>

In making up the case, (which was done by the plaintiff,) several written evidences of title, as patents, deeds, and field books, were inserted therein . , verbatim ; and on taxing the costs, the taxing officer refose(^ to ad°w for copying these, as he deemed them not necessarily incorporated in the case, though they were allowed to he inserted by the Judge who tried the cause, by -whom the case was settled.

K. B. Davis, moved for leave that the tenant enter into a special consent rule. He read an affidavit of the tenant thus: “that, as he, this deponent, verily believes, this ejectmen involve a question, between tenants in common.”

<p>Motion for a new trial for irregularity and newly discovered evidence, is an enumerated motion.</p>

Slander in the New York Common Pleas, removed by habeas corpus, returnable in May term, 1823. Special bail was put in on the 6th August last, and notice thereof given to the plaintiff’s attorney, the next day.

J. R. Lawrence, moved to set aside the verdict.- and for 1 7 a new trial, on the ground of the miseoflduct of the jury, who agreed upon their verdict while the Court were at dinner, and without the consent or knowledge of either party, dispersed add obtained their own dinners, and returned into Court at the opening thereof in the afternoon.

An attorney having commenced ah action without being retained for that purpose, and having failed in the suit, this Court made a rule upon him, that he should pay to the defendant his costs. These being duly taxed and demanded, but not paid,

<p>Proceedings to obtain leave to prosecute the general sheriff,S under the statute, (l 6.) ’</p> <p>the” affidavit should show a tan°'of °nuUa bona, &c., on againstdsmthe thfif not necessary, where clearly that™ is insolvent</p>

The plaintiff had taken judgment for the same debt, on the same bond, against the executors in one action and the , . n i . . . . , heirs ot the testator in another action, ana

Trover for a bond. On an affidavit stating that the bond had been delivered to the defendant, demanded of him, and that he had refused to re-deliver it, and that a copy or description of the bond was necessary to enable the plaintiffs to declare,

It was moved in this cause, that Alonzo Flint be admitted defendant, with his brother, A. W. Flint, the now defendant. and an affidavit of A. Flint was read, stating that this action was commenced… Held: as guardian in socage of the heirs, so that in contemplation of law, they had never been out of possession ; that A. W. Flint had requested the deponent to join him in defending the suit.

Miss Gouverneur having been denied the right to defend as landlady of Tucker, who had attorned to, and taken a v . lease of her, after the expiration ot his lease from one of the ^essors in the cause reported ante, vol. 1, p. 575, as-there mentioned, the plaintiff retained his judgment in that action, an¿ had demanded the costs of Tucker, who refused to pay t^em Miss Gouverneur having brought the present action, against Tucker, before he was turned out of possession in tíle…

On the first day of the last term, the defendant’s counse. moved for, and took a rule for judgment, as in case of non-suit, (no one appearing for the plaintiff, to stipulate.) There had been no previous stipulation.

<p>: Jgment for ejectment^™ firmed on error, and writ of inquiry to assess the plaintiff’s damages intermediate judgment and affirmance : held, that the plaintiff is entitled to supreme court costs, for the writ of inquiry, &c., without regard to the amount recovered thereon.-</p> <p>Where a proceeding is in continuation of a suit carried to judgment, the costs of such proceeding follow, at the same rate with those allowed in the original suit.</p> <p>Form of writ of inquiry on affirmance of judgment in ejectment upon error under the statate, (I R. L. 343, s- 3.)</p>

Dean sued Armitage in a Justice’s Court ill Washington county, recovered judgment, and Armitage appealed to the Court of Common Pleas. The judgment before the Justice was rendered on the 12th September last, and though the notice of appeal was given the same day, the bond to prosecute the appeal was not executed till the 16th of the same month.

Ejectment. The parties had, without trial, agreed upon a special verdict; and the plaintiff had agreed to a certain deed, to _be produced by the defendant, and made a part of the verdict; and an entry according to the deed, material to the question upon the statute of limitations, which arose in the cause.

Assault and battery, on habeas corpus from the Orange Common Pleas. At the Orange circuit, in 1821, the verdiet was for the plaintiffs, for 25 dollars. The defendant on a case made, applied to this Court for a new trial, which was granted, with costs to abide the event. The cause was again brought to trial at the same circuit, in November, 1823, and a verdict found for the defendant; and the only question-now, was upon the taxation of costs.

Spicer and Caldwell became special bail for Oddie. , , , , , „ . „ They were excepted to, by the usual entry on the back of the original bail piece, notice given of the exception to the defendant’s attorney, and Oddie refusing to justify, Sniffen became bail with Spicer, and these latter justified as special bail.

J. V. Henry showed cause against the rule obtained at the last October term, which see (ante, 1 Cowens’ Rep. 590,) against Nathaniel Hyatt, of Newcastle. He read the affidavit of Hyatt, in which he stated, that he never had been a Commissioner of Highways of the town of Newcastle, but he did not deny having possession of the document sought by the relators. «.

Assumpsit, on divers promissory notes, dated after the 3d of March, 1803, at Alexandria, in the District of Columbia= made bY defendant.

Assumpsit. J. Platt, for the plaintiff, moved that the defendant’s second plea be stricken out, with costs, on the gr0und that it is untrue, and was pleaded as a sham plea, ° 1 , .

Dower, unde nihil habet, by Mary Cox, widow of John deceased, of land, &c., in the town of Newburgh, in Orange county.

The first count was trover for certain goods and chattels Qf tpe plaintiff, which the defendant had distrained and sold r 1 for rent, claimed by him to be due from the the plaintiff: The second count was in case, upon the 9th section of the “ act concerning- distresses, rents and the renewal of leases,” pass- ° ed April 5 1813, (sess. 37, ch. 63, 1 R. L 435,) for distraining when no rent was due, and claiming double damages.

Replevin for one span of horses and a pleasure waggon. Avowry for rent arrear.

As.sumpsit,,against .the second endorsei of a promissory note> drawn by Peters & Harrison, in favor o' Thomas C. Butler, jun..and .endorsed by him and .the defendant. The .note was dated the ¡11th of January, .18:19, payable four months after date, for 1000 dollars, 7 7 The.cause was .tried before his honor Ambrose Spencer; date-Chief Justice, at the Sittings in New York, June 7th, 1821. ... , „ , , .

Assumpsit against the defendants as first endorsers of a promissory note, drawn by Sturges & Sherman in favor of the defendants, and endorsed by them and Bennet, Cady & Co. The note was dated 6th July, 1819, payable ninety days after date, for 3450 dollars. The cause was tried before his honor, (the late) Chief Justice Spencer, at the sittings in New York, the 15th June, 1821.

Assumpsit on a promissory note for 10.0,0 dollars, against the defendant as maker, dated the 14th day of March, 1821, payable to the order ofSylvanus Smaliy, and Walter Beecher, 30 days after date, at the Bank of Utica, and discounted by the bank. The cause was tried át the Oneida Circuit,' in November, 1821, before his Honor, (the late) Mr. Justice Platt.

Assumpsit brought to recover of the defendants, as en- , , „ . , _ _ dorsers, the amount of a promissory note made by one Morse, tiae4 at tifo Oneidia circuit, the 27th day of May, 1822, before his honor the (the late) Chief Justice Spencer. The plaintiffs proved the execution of the note by the ma-keri ar|d the endorsement of the defendants. The note was as follows: “ $1200.

Action of covenant, tried at the Ontario Circuit, in June, 1822, before his Honor, (the late) Mr. Justice Platt, when a verdict was taken for the plaintiff by consent, subject to the opinion of the Court, on the following case, with liberty to either party to turn the case into a special verdict.

Slander by Paddock against Salisbury; for that the defendant had. charged the plaintiff with arson, (setting forth the words,) also for charging the plaintiff with being a thief, and stealing apples. plea, the general issue. The case was tried at the Oneida Circuit, November 23d, 1 .. ■ 1821.

■ The return stated (among other things) that on the 27 July, 1823, Murphy was brought before Ariel Thayer, one of the Justices of the Peace of Otsego county, on a charge of petit larceny: and, upon his examination and the testimony of the prosecutor, was committed to jail for want of bail to appear at the next Court of General Sessions.

Ejectment, for part of lot No. 72, in Cincinnatus, tried before Judge Walworth, at the Cortland Circuit, in June, 1824. The plaintiff sought to recover on a mortgage of the premises, given by the defendant to the lessors of the plaintiff. The defendant called Samuel Curry to prove the mortgage paid. The witness was objected to, as incompetent, on the ground that he had been convicted of petit larceny.