Volume 2 — Denio's New York Reports

Ejectment for lands in the city of Troy, tried at the Rensselaer circuit in December, 1843, before Willard, 0. Judge. In the first count Abraham Vanderheyden arid David S. Wendell were named as plaintiffs, jointly; and each of them was named as plaintiff, separately, in the two other counts.

This cause' was tried a third time at the Onondaga circuit in April, 1845, before Whitiííg, C. Judge. The plaintiffs again sought to recover the excess Of Moneys received by the defendant as district attorney of Onondaga, over and above his lawful compensation.

Assumpsit, tried at the Chautauque circuit in June, 1844. The suit was brought to recover money due to the plaintiff from Francis B. Bucklin, a brother of the defendant.

Ejectment, tried at the Albany circuit in February, 1844, before Cushman, C. Judge. The action was brought to recover an undivided third part of a farm containing about 150 acres of land in New Scotland, Albany county.

Scire facias. The writ suggested that at the October term of this court in 1842 Batchellor recovered judgment against the defendant for $2290,05 in a plea of trespass, and that on the 2d day of December following Batchellor died intestate, and that thereafter administration was granted to the plaintiff; and profert was made of the letters of administration.

Assumpsit on a policy of insurance tried at the Cortland circuit, before Moseley, late C. Judge, in March, 1844. The plaintiff produced and proved a policy, dated June 25th, 1840, by which the defendants insured the sum of $1334 on the plaintiff’s grist mill in Virgil, against loss or damage by fire, for five years.

This cause originated in the. marine court of the city of New-York, where Beach sued Gray in assumpsit for use and occupation and recovered $100. The judgment was reversed by the superior court, and the plaintiff brings error to this court. The other facts are sufficiently stated in the opinion of the court.

P. Abbott sued Yost before a justice' of the peace, and declared in trespass for taking his goods. On the trial it appeared that the defendant was the collector of school district No. 5 in the town of Fayette, Seneca county, and took the goods by virtue of a warrant and tax list made by the trustees of the district for a tax to build a school house—the plaintiff being one of the inhabitants of the district, and being taxed in the sum of $ 17,07.

Getman sued Broad-well before a justice of the peace, and upon a trial by jury recovered $25 besides costs, and this judgment was affirmed by the C. P. upon certiorari. The plaintiff’s claim was principally for damages for the non-performance of a contract respecting the clearing: of land. This contract was entered into on the first day of January, 1841, and was reduced to writing at the request of the parties and agreed to by them, but was not signed.

P. Buel sued Boughton for money had and received to his use; and the case was substantially as follows: One Charlotte Smith held a bond against the plaintiff for $2650, payable in six equal annual instalments, with annual interest from April 1st, 1843. James T-T Fuller, in right of his wife, owned and had an interest in the bond to the amount of $498,10.

Rice sued John and Jacob Burghart before a justice of Onondaga county by summons, returnable seven days after the time when it was issued, which was personally served on both defendants. The plaintiff declared on a joint note made by the defendants. John .alone appeared and pleaded. On the trial it appeared that Jacob Burghart was a resident of Oswego county. The plaintiff recovered a judgment before the justice, which was affirmed by the common pleas.

Declaration in assumpsit on promises by the testator; plea 3d, actio non &c. because the defendants say, that the said several supposed causes of action in the said declaration mentioned, if any such there were, or still are, did not, nor did any or either of them accrue to the said plaintiff within six years &c. Demurrer, assigning for cause, that the plea does not sufficiently confess the action, nor give color to the plaintiff.

Demurrer. The declaration contained the common money counts in assumpsit and claimed damages to $5000. Sparrow pleaded, 1. Non assumpsit: 2.

Mrs. Pack sued Boyer before a justice for money paid him by mistake. Non assumpsit was pleaded and the plaintiff recovered a judgment in the justice’s court, which was affirmed- on certiorari in the common pleas. The defendant held a bond and mortgage against the plaintiff, payable by instalments, with interest annually. The instalments and interest were not regularly paid, though some payments were from time to time made on account.

<p>A new trial will not be granted on account of newly discovered evidence, which is only material to impeach or contradict witnesses who were sworn on the trial»</p>

. Error to the recorder’s court of the city of Buffalo. Hodges sued “ The City of Buffalo ” in assumpsit and counted for the use of certain rooms in his hotel, for meat, drink and refreshments furnished, and the attendance of his servants, &c. at the request of, and for the defendant. Non assumpsit was pleaded.

P. The suit in the common pleas was an appeal from a judgment rendered before a justice in which Green was the plaintiff and Whitcomb & May were defendants. The declaration was on a.promissory note to which the general issue was pleaded.

Demurrer to declaration. The: plaintiffs,' as trustees of the creditors of Joseph and Andrew Brown, appointed pursuant to proceedings' by attachment instituted against them as nonresident debtors on the 9th day of November, 1836 under- the provisions of the' revised statutes, sued the- defendants in case for an alleged violation of duty as the agents in New-York of the Planters’ Bank of Tennessee, in' refusing' to • permit a transfer to the plaintiffs on the transfer book of…

The defendant was sued as a stockholder in the Rossie Galena Company, and the action was tried in July, 1844, at the St. Lawrence circuit, before Willard, C. Judge. On the 22d of January, 1839, the plaintiffs sold to the Rossie Galena Company 75 barrels of pork and 30 bushels of beans for $1542,50, to be paid for in cash.

P. Colegrove sued Breed and the other defendants in error before a justice of the peace and declared against them as the trustees of school district No. 10 in the town of Lincklaen, for the services of- his son as a teacher of the common school in that district. The defendants pleaded the general issue and the cause was adjourned to a future daat the instance of the defendants.

The writ of habeas corpus was directed to a constable of the county of Oswego, who brought Stowell before the commissioner, and returned that he had him in custody by virtue of a warrant of two justices of the peace of said county, a copy of which was annexed to the writ and return.

P. Cornell brought trespass in the court below against John & David Todd, for breaking and entering his dwelling house in Argyle, Washington county; and the question was on the title to the locus in quo.

<p>In the body of a written contract it was stated to be made between R. & C., and by its terms C. was to deliver certain property to R., but it was signed by C. & H.; held, that both C. and H. were contracting parties with R.</p>

The suit was commenced in a justice’s court where the plaintiff recovered; and the defendant appealed. On the trial the plaintiff under a declaration containing the common counts established a cause of action in assumpsit, for work, labor and materials, and for goods sold to the amount of $60.

Assumpsit for money had and received, tried at the Chautauque circuit in July, 1844, before Dayton, C. Judge.

<p>Error to the Onondaga C. P. Churchill sued Rice before a justice of the peace and recovered judgment. The defendant appealed. The action was assumpsit on an agreement in writing in the following words: “For value received I promise to pay Alexander M. Churchill or bearer fifty dollars in lumber at cash price, when called for. Spafford, Sept. 8,1843. William Rice.” The plea was the general issue.</p> <p>On the trial in the C. P. the execution of the note was admitted. The plaintiff proved that in September, 1843, a person sent as an agent by the holder of the note took it to the house of the defendant, who was not at home. He then went to the defendant’s saw mill, about one hundred rods off, and found there the defendant’s son at work at a wheel, who said his father was at work in a wheat field a mile or two distant. The mill was not running. The agent shewed the note to the defendant’s son and requested that it might be paid in lumber, and asked for some lumber "from a particular pile which was pointed out. He proposed that the whole amount required to pay the note might he measured out so that it might be laid aside to be taken away as the holder pleased. The defendant’s counsel objected to evidence of what the son said in answer to this application, but the objection was overruled and the defendant excepted. It was proved that the son at first said that the pile belonged to another person and that the agent could not take any of it, but afterwards he was allowed to and did take some lumber .from it. The agent at that time took away a load of lumber, and demanded the 'whole that was payable on the note. It appeared that the defendant kept his lumber at ttie mill yard, that the son had sometimes worked at the mill, and sometimes worked "out, and that the defendant worked some at farming. The defendant’s counsel moved for a nonsuit, insisting that a sufficient demand had not been proved, but the motion was denied and the defendant excepted.</p> <p>The defendant then gave evidence respecting the interview between his son and the agent at the mill, to the effect that payment of the whole amount was not demanded, but that the agent said that the owner of the note would come after the lumber in two or three days and wanted the defendant to be there. The defendant proved that this had been mentioned to him and that he had remained about the mill several days afterwards, but no one came for the lumber; but that subsequently the holder of the note, who lived about eight miles distant, came for the lumber and saw the defendant’s son at the mill and demanded the lumber, but it was not turned out or measured, nor was it ever set apart for the holder. The son swore he was not in charge of the mill nor of the lumber, and was not authorized to let the lumber go in payment of his father’s debts or otherwise. It appeared that the defendant had lumber enough at the mill at this time to have paid the note.</p> <p>The" court charged the jury that a demand of payment was necessary before action brought, and that it must be made at the place where the defendant transacted his lumber business, but that as the defendant was a farmer as well as a manufacturer of lumber, he was not bound to be at his lumber yard constantly, and that a demand there would not be good unless-he or his authorized agent was therethat the first demand proved was not sufficient, especially if it was then understood that the holder of the note was to call again; but that if the agent who first called for the lumber gave notice to the defendant’s son that the lumber was wanted and would be called for soon, and the son gave notice of this to the defendant, it was then the duty of the latter to have the lumber ready; and if after this the holder again called for the lumber and none was ready, the defendant was in default and the plaintiff was entitled to recover. The defendant’s counsel excepted to the charge, and the jury rendered their verdict for the plaintiff, upon which the .court gave judg-' ment. A bill of exceptions was signed.</p>

<p>An admission contained in an undelivered instrument is not binding upon the party whose hand and seal are attached to it.</p> <p>The plaintiff in an action for work, labor and services, relied along with other evidence upon a sealed note found among the papers of the defendant's intestate, but which had not been delivered, by which he in terms promised to pay the plaintiff $2000 “ for value received and justly and truly due her for services rendered me during my illness.” Held very slight evidence as an admission of the fact stated; and the other proof in the cause showing that nothing was then due the plaintiff, held further that she was not entitled to recover.</p>

Assumpsit, tried before Moseley, C. Judge, in April, 1844. The action was on a promissory note made by the defendants— Henry signing as a surety for Pierce—dated April 20, 1838, payable to the plaintiffs 63 days after date. The defendant Henry pleaded the general issue, and gave notice of the defence of usury, verifying the notice by affidavit pursuant to the usury statute of 1837.

P. Gale sued Mead and Seely before a justice of the peace, and declared in trover for certain goods. The defendants were two of the trustees of school district No. 3 in Clarkson, Monroe county. On the 16th of September, 1840, a district meeting voted a tax of $100 to finish the school house which the district was then building. On the 5th of November following, the trustees made a tax list and warrant for the collection of the tax, and delivered the same to the collector.

P. Mather sued Perry before a justice; and on a trial by jury'the case was this: the defendant wanted one Hewitt to make some machine frames, and to pay Hewitt for them in lumber. Hewitt preferred being paid in goods out of the plaintiff’s store.

<p>In conducting the proceedings upon a distress for rent, five full days must elapse after the day on which notice of the distress is given before an appraisal of -the v gpods can be made or,notice of sale given. Therefore where notice of the distress . was given on the ninth, held that the appraisal could not .take place before the fifteenth of the same .month.</p> <p>But where the appraisal is made too soon, or any other irregularity occurs after a distress legally made, the proceedings are not void, and trespass will not lie against ■ the, party making the distress; but only case for the special damages sustained by the party aggrieved.</p> <p>And that action can only be sustained .against the party who personally or by his agent commits the irregular act.</p> <p>Such-action cannot be maintained against the agent of the landlord who issued the warrant in the .landlord’s name and. directed the officer to take the plainly* property and who attended the sale and received the rent collected by the distress but had no agency in or actual knowledge of the irregularity.</p> <p>Where the irregularity consisted in making the appraisal and the sale one day before - the time prescribed by law, and there was ho proof of special damages, held, that only nominal damages were .recoverable. Per Jewett, J.</p>

Error from the Oswego common pleas, to review a judgment of that court affirming a judgment rendered before a justice of the peace. The action in the justice’s court was trover for a cow brought by McYanner against Burdick, to which the defendant pleaded not guilty. The cause was tried by a jury. On the trial the defendant admitted the taking of the cow and that her value was $18.

Covenant upon a guaranty under seal, executed by the defendant acid annexed to articles of agreement between the plaintiff and one T. L. The declaration does not contain any ;proferí, but has the following as a substitute: “ which said * guaranty and agreement of the said defendant, sealed with the seal of the said defendant, the date whereof is, &c. was then and there delivered with the said agreement so as aforesaid made and executed between the said plaintiff and the said…

P. to review a judgment of that court in a cause arising on appeal from the judgment of a justice of the peace. Philbrick brought trover against Shepard for a quantity of wheat growing, which the defendant, as alleged converted, by cutting and drawing it away. On the trial in the C. P. the following facts appeared in evidence. The wheat in question was sown by one Wright upon land then in his possession, in the summer or autumn of 1842.

<p>In order to render the expense of maintaining all the poor of a county a county charge, pursuant to 2 R. S. 620, § 24, the board of supervisors must not only determine to abolish the distinction between county and town poor, but must, file such determination with the county clerk.</p> <p>Until such determination be filed the duties of the officers arising out of such change in the poor system do not attach.</p> <p>Consequently, in an action against a member of the board of excise to recover a penalty for not paying, the license money to the county treasurer, the filing of such determination must be proved or the,plaintiff cannot recover.</p> <p>Such filing cannot be proved by parol unless it be first shown that primary evidence cannot be obtained.</p> <p>The service of the resolution of the board of supervisors on the town clerks, is not essential to effect a change of system, the provision respecting such service being only directory.</p>

In September, 1828, the defendant was sheriff of the county of Washington, and levied upon certain personal property by virtue of a ji-fa. in favor of one David Vaughn. The plaintiffs thereupon brought this action of replevin. The defendant refused to incur any risk of expense in the defence of the suit, and never did any thing whatever by way of defending it. Vaughn undertook the defence, and gave the defendant a good and sufficient bond of indemnity.

The plaintiff was nonsuited on the trial of an action of ejectment: he made a bill of exceptions which was settled and signed; but not having obtained an order to stay proceedings, the defendant perfected a judgment for costs. An alias ca. sa. was issued on the judgment to the sheriff of Oswego, tested the first Monday, and made returnable the eleventh day of January last, which was Sunday.

Costs. The action was on a money bond. The defendants demurred to the declaration, and the plaintiffs thereupon amended under the rule allowing amendments as of course. The defendants did not plead to the amended declaration, arid the plaintiffs took judgment by default. The plaintiffs taxed their costs by items, instead of taxing a gross sum under the act of 1844.

<p>In ejectment the defendant before pleading procured and served an order from a supreme court commissioner, that the acting attorney for the plaintiffs “ produce his authority for commencing this action in the names of the plaintiffs therein;” and staying all proceedings until the authority should be produced. No time or place was mentioned for producing the authority; nor was it specified to whom the authority should be produced. The residence of the commissioner was not mentioned; but his official title was given as “ Judge of Sar. Co. Courts and Counsellor in Sup. Court." The plaintiffs' attorney disregarded the order, and entered judgment by default for want of a p1ea.</p>

Costs and interest. The defendant assigned to the plaintiff a bond and mortgage made by one Welty, and covenanted and bound himself to the plaintiff for the faithful payment and performance by Welty of the conditions and terms of the bond find mortgage. The condition of Welty’s bond.was, among other things, that he should pay-ICetchum $20.00 .with interest, and should also pay-the ground rent on the mortgaged premises.

Elkins, on the 13th of January, 1845, recovered a judgment against Athearn in the superior court of the city of New-York for about $4500 damages and costs, in an action of assumpsit. Elkins on the same day assigned the judgment to Beardsley and Chalmers, for a valuable consideration. After-wards the superior court, on the defendant’s application, opened the judgment upon terms, for the purpose of enabling the defendant to plead his discharge in bankruptcy.

Motion that assignees pay costs. In January, 1845, the plaintiffs brought this suit to recover a demand of about $800. In May following, pending the suit, the plaintiffs made a general assignment of their property, this demand among the rest, to Miller Shaurman, for the benefit of their creditors—Miller & Shaurman being two of the creditors intended to be benefitted by the assignment.

<p>A defendant who has been relieved from a default on condition of pleading issuably, may put in a special plea in bar concluding with a verification.</p> <p>Pleas which do not go to the merits as false and sham pleas are not a compliance with the rule to plead issuably. Per Bronson, C. J.</p> <p>Where the plaintiff is able to impose conditions upon the defendant he should obtain an order restricting him to a plea of the general issue or such a plea with notice of special matter. Per Bronson, C. J.</p>

Covenant for rent in arrear. After an attorney had been retained to.bring the suit, and he had drawn and sent away the declaration to be filed, but before the declaration was filed or served, the defendant tendered a sum of money which turned out on the trial to be sufficient to pay the debt; and he also tendered a further sum sufficient to pay the costs which had then accrued. But he did not bring the money into court.

John M. Martin commenced án action of assumpsit against die relator, Cornelius Kanouse, in the New-York common pleas, by filing and serving a declaration in which the damages were laid at $1000. Kanouse appeared and filed a petition stating that the plaintiff was a citizen of this state, and the defendant a citizen of the state of New-Jersey, and praying to have the cause removed to the circuit court of the United States for the southern district of New-York.

Action on the case; the defendants pleaded hot guilty, and two special pleas. The plaintiffs demurred to the special pleas, and gave notice of bringing on the argument on the ground of the frivolousness of the pleas; and at the last January term they obtained judgment on the demurrer by default.

<p>The court will not upon errror reverse a judgment, where general errors in law have been assigned without ascertaining by an inspection of the record that the judgment below is erroneous, though an issue of fact arising upon a plea of the statute of limitations pleaded by the defendant in error has been found for the plaintiff.</p> <p>Judgment will be given upon the same principles which would govern if there had' been a joinder in error.</p> <p>The plaintiff in error in such a case must make up error books and place the cause on the calendar at a general term, and either party may give notice of argument.</p>

On error from the supreme court. The plaintiffs in error brought assumpsit in the court below against the partners of the firm of Norton, Bartle & McNeil, and. the defendant West-fall, to recover the amount of a bill of exchange drawn by the defendants upon the plaintiffs which the latter had accepted and paid at maturity to the holders.

On error from the supreme court. B. & S. W. Wakeman sued Bailey in the supreme court for goods sold and delivered Non assumpsit was pleaded with notice of set-off, and the cause was referred to referees, who reported in favor-of the plaintiffs.

The plaintiff in error brought assumpsit in the court below to recover a sum of money which the defendant had received from the canal commissioners, and to which the plaintiff claimed that he was entitled. The circuit judge nonsuited the plaintiff, who moved the court below for a new trial on a bill of exceptions. The motion was denied, and judgment was rendered for the defendant. The facts in the case, together with the reasons of the court below, are stated in 4 Hill, 635.

<p>Where a district tax to build, a school house was voted at a .school district meeting upon which the trustees prepared a tax list and warrant, and subsequently a special meeting was called at which the tax was repealed; and another meeting was held at a still later.period,.when the vote to repeal thc-tax was itself- repealed, and the warrant wasthen,.renewed and delivered-to the officer; held- that although the last vofe revived the fax, it was.in effect a tax voted at the last meeting, and that a new tax list should have been made out after that vote.</p>

On error from the supreme court. The plaintiff in error brought covenant in the supreme court upon-certain-articles of agreement in the following words : “… Held: and disposed of, and-of -defining the respective, rights and-duties of the said Lewis, and of the subscribers in rega'rd to the -said property: it is hereby declared to be mutually understood, stipulated, and agreed upon, by and between. the said Lewis and., the subscribers, in manner following, viz:— First.

<p>On error from the supreme court. The attorney general on the relation of James Conner, in January term, 1844, filed an information in the court below in the nature of a quo warranto against Andrew Warner, for an alleged intrusion by the latter into the office of clerk of the court of common fleas of the city and county of New-York. The information sets forth that the defendant, without legal warrant, grant'or right, has for more than thirty days last past held, used, and executed the alleged office and performed the duties of clerk of the. court of common pleas for the city and county, and of clerk of the county court of the said city and county: and that he claims to be the clerk of the said court of common pleas, and to have the custody of the papers, and to perform the duties of that court, and to receive the compensation and emoluments allowed by law to the clerics of courts, and to the county cleric for such services, and to have and enjoy the liberties, privileges, franchises and emoluments appertaining to the office of clerk of the common pleas and clerk of the county courts of the city and county of New-York, which said office, liberties, &c. the defendant, during the term aforesaid has (as the information alleges) usurped, intruded into and unlawfully held, in contempt of the people, &c. The information proceeds to aver that the relator, during the time aforesaid, was, and still is, and continually until the first day of January, 1847, will be rightfully entitled to hold, use, and execute the office of cleric of the city and county of New- York, and all the liberties, privileges, &c. to the said office appertaining, and to have the custody of all books, records and papers relating to the said court of cornmon pleas and of the seal thereof, and to perform all the duties of clerk of the said court of common pleas; and to be and act as the clerk of the county court for the said city and county, and to receive the compensation allowed to clerks of courts and the county clerk for such services.</p> <p>The defendant pleaded in bar setting out the act relating to the court of common pleas of the city and county of New-York, passed April 10th, 1843, {Stat. 1843, p. 63,) which provides for the appointment of a clerk of the court of common pleas by the first and associate judges of that court, who, it is enacted, shall for that purpose be deemed the court; and averred that pursuant to the act he, the defendant, was appointed on the first day of May, 1843, by the then first and associate judges, to be the clerk of the said 'court of common pleas for the city and county of New-York, and that he had taken the oath and given the bond prescribed by law; traversing the title of the relator to the office of clerk of the city and county of New-York and of the court of common pleas, &c. The attorney general demurred to the plea. Joinder. The supreme court, after argument, gave judgment for the people, and adjudged that the defendant be ousted from the office which he claimed and that the plaintiffs recover the costs of the prosecution ; and also adjudging that the relator was the clerk of the city and county of New-York, and as such was entitled to the books &c. relating to the court of common pleas, and to the seal, and to perform the duties of clerk of that court, and to act as clerk of the county court for said city and county, and to receive the compensation allowed to clerks of courts and to the county clerks for such services. Upon this judgment the defendant brought error to this court. The reasons of the judges of the supreme court were assigned as follows, by</p>

On error from the supreme court. Cooper sued Stone in the court below for libel.

<p>On error from the supreme court. Hull brought an action of debt in the court below, against Adams, upon a sealed note and for the balance due upon an account; and issue being joined, the cause was "referred to referees, who reported in favor of the plaintiff for a .sum less than the amount claimed. The plaintiff moved to set aside the report, which motion was granted at the July term, 1841. The facts proved on the trial and the opinion of the supreme court on that motion, are reported in 1 Hill, 601. The cause was again tried before the referees, when the plaintiff gave in evidence a note under seal, executed by the defendant, and dated 12th January, 1839, by which he promised to pay the plaintiff two thousand dollars, by' the first day of November, then next, with interest after the first day of May, then next. The following written evidence was then produced by mutual consent, viz.: (1) A lease dated November 25, 1837, executed by one Cocks and his wife to Samuel C. Adams, of a piece of land for a brick-yard and a dock, for the term of twenty-eight years, reserving a rent of $1000 per annum,, payable on the first day of May in each year. (2) An assignment of this lease by the lessee to the plaintiff, dated 11th December, 1837, expressed to be subject to the rents and covenants therein contained, and a covenant by the plaintiff also endorsed on the lease, engaging with S. C. Adams, the lessee, to keep and perform all the covenants on his part contained in the lease. (3) An assignment of the lease, dated 12th January, 1839, by the plaintiff to the defezzdant, Abel Adazns, expressed to be in consideration of $3000, and of the defendant’s having agreed to perform the covenants on the part of the lessee znentiozied in the lease—subject to the rents and covenants in the lease, and to a sub-lease of a part of the premises which the plaintiff had given to one A. A. Hull. Under this assignznent there was a written covenant of the sazne date executed to the plaintiffby the defendant, whereby he agreed to keep and perform all the covenants on the part of the lessee contained izi the original lease. It was adznitted that at the tizne, of the execution of the last mentioned assignznent and covenant, the sealed note on which the suit was brought, azrd also anothrr sealed note for the payment of $1000, were executed by the defendant to the plaintiff.</p> <p>The defendant then offered to prove that the consideration of the assignment by the plaintiff to him of the lease in question, was the sum of $2000 only, and that the note for $1000, before mentioned, was given to secure collaterally the payment of the rent due to the lessor for one year, and that the note was payable on the 1st day of May after its date, and that the defendant had paid this note to the plaintiff at maturity. The defendant further offered to prove that the plaintiff neglected to pay Cocks, the lessor, the $1000 for rent due 1st May, 1839, in consequence of which Cocks called upon the defendant for the same and compelled him to pay it in order to save his property on the demised premises from distress. The plaintiff’s counsel objected to this evidence on the ground that it was inconsistent with the terms and legal effect of the lease, and of the assignment and covenant, and contradictory thereto. The referees rejected the evidence and disallowed the defendant’s claim of $1000 so paid, and reported in favor of the plaintiff for the whole amount of his demand. .The defendant again applied to the supreme court to set aside the report, which was refused, and judgment was rendered for the plaintiff. A statement of the referees, containing the foregoing facts,,was incorporated into the record. The defendant brought error to this court.</p>

On error from the supreme court, to review a judgment of that court affirming a judgment recovered by Weeks against Boyd in the court of common pleas of the city and county of New-York, in a suit commenced by declaration in that court. The facts appearing upon the record and bill of exceptions in the common pleas, together with the reasons for the judgment of affirmance, are sufficiently stated in the report of the case in the supreme court, in 5 Hill, 393.

On error from the supreme court. Striker sued Kelly in the court below in covenant, for a quarter’s rent reserved upon the demise of certain premises in the twelfth ward of the city of New-York.

On error from the supreme court. The plaintiffs in error brought ejectment in the supreme court against Townsend, and upon the trial the jury found a special verdict, upon which that court gave judgment for the defendant; and the plaintiffs thereupon brought error to this court. For the facts found by the verdict and the opinion of the court below see, 2 Hill, 554.

On error from the supreme court. The action in the court below was assumpsit, brought by Kriox as president of the Bank of Vernon, an institution organized under the general banking law, against Curtis, Peabody & Tillotson, as maker and endorsers of a promissory note. Each of the defendants pleaded non-assumpsit, and the cause was tried before Gridley, C. Judge, at the Oneida circuit in October, 1842.

On error from the supreme court. Arnot brought ejectment in the court below against Post and the other plaintiffs in error, and obtained a verdict, which the defendants in that court moved to set aside on a bill of exceptions. The motion was denied, and judgment was entered on the verdict; upon which the defendants bring error here. The facts, together with the opinion of the court, are reported in 6 Hill, 65.

On error from the supreme court. Webber & Cody sued Shearman in the court below in replevin. The defendant pleaded non cepit and several special pleas, which respited in issues ofifact, and also put in two avowries. The plaintiffs pleaded several pleas to each avowry, upon which, except the first plea to each avowry, issues of fact were joined. The defendant replied to the first plea to each avowry, and the plaintiffs demurred to the replications.

On error from the supreme court. Koppel sued Wolff & Henricks in the New-York C. P. in assumpsit for the price of certain goods sold by the defendants as the plaintiff’s factors under an agreement, as alleged,, to guaranty the sales. The question upon the trial was whether the defendants acted under a del credere commission or not.

<p>The defendants, merchants in Ncw-York, wrote a letter to a house in Liverpool, in which they said, “ At the request of Messrs. S. & T. and on their account wo beg leave to open a credit for, £10,000, uncovered at any one time in favor of Mr. J. D., to be negotiated by him at Rio de Janeiro by drafts on you at 60 days sight. This credit will expire on, &c. You will of course keep Messrs. S. & T. advised as the credit is used, and they will attend to placing you in funds.” Held, that a party who had advanced money to J. D. upon drafts drawn and negotiated according to the terms of the letter and upon the faith of it, which were protested for non-payment, could not maintain an action against the defendants, for want of a privity of contract between them.</p> <p>The defendants having written two other letters at subsequent dates extending the credit in respect to tire amount, and the time of its continuance, but without mentioning the length of the bills; held, that only bills at 60 days were within the guaranty, and that a bill at 90 days was unauthorized.</p>

On error from the supreme court, where the defendants in error, as plaintiffs, recovered a judgment against the plaintiffs in error upon verdict. The defendants below moved the supreme court for a new trial upon a bill of exceptions, which was refused. For a report of the case and the opinion of the supreme court, see 5 Hill, 488.

On error from the supreme court. Gifford, as president of the Farmer’s Bank of Hudson, an association organized under the act “ to authorize the business of banking,” sued the defendant in error in the supreme court in assumpsit, as maker of a promissory note.

On error from the supreme court. The Trustees of Hamilton College sued Stewart in the court below in assumpsit, to recover a balance of $600, parcel of $800 subscribed by him towards a fund for the payment of the salaries of the officers of the college; which subscription was made at the foot of a paper in the following words: “ Fund for Hamilton College.

Oii error from the supreme court. The action in the court below was ejectment brought by Bull and wife against Church, for the dower of Mrs. Bull in lands of which a former husband was seized during their coverture. The plaintiffs had a verdict, which the defendant moved, upon a bill of exceptions,, to set aside; but the motion was denied, and judgment was rendered for the.-plaintiffs, upon which the defendant brought error to, this court.

On error from the supreme court. The defendants in error brought an action of trespass on the case in the court below against the corporation of the city of New-York for negligence, in constructing the dam across the Croton river, where that stream is diverted for the purpose of supplying the city of New-York with water, in so unskillful a manner, that on the occasion of a freshet in the river occurring after its erection, the dam was swept away, and the plaintiffs’…

ON error from the supreme court. Russell sued the corporatidn of the city of New-York in the superior court of that city in assump.sit, for the value of a quantity of merchandize which was destroyed in the great fire in December, 1835. TIi~ goods were deposited in a store in Exchange pIace~ which was blown up and destroyed by order of the mayor and two aldermen, in order tb prevent the fire from extending in that direction.

The respondents, Henry Gable and five other persons claiming to be trustees of the religious corporation called The Corporation of the… Held: and that the members of the Reformed Dutch Church, including the legitimate members of the church represented by the complainants, cannot conscientiously commune with Arminians; that the Reformed Dutch Church in North America, by its constitution adopted in 1772, recognized and declared the doctrines, rules and usages, proclaimed by…

<p>Where a defendant in a suit in chancery had rendered himself liable to a conviction for a criminal contempt for violating an injunction, issued upon a judgment creditor’s bill, and was afterwards discharged under the bankrupt act, and after such discharge was prosecuted by attachment for such contempt; held, that such discharge was not a defence against the attachment proceeding.</p> <p>Held also, that a fine to the amount of the complainant’s judgment and costs, and a direction that the samo be paid to the complainant for his indemnity, was not in sucli a case improper.</p> <p>The lien upon a debtor’s property and rights in action created by an execution returned unsatisfied and the commencement of a suit by judgment creditor's bill, is not divested by a subsequent discharge in bankruptcy. Semble, that the judgment remains on foot notwithstanding the discharge so far aa it may be necessary to uphold proceedings to enforce the lien. Per Jewett, J.</p>

A statement of the facts together with the opinion of the chancellor appears in the report of the case in 10 Paige, 541. The case was argued here by

Kortright, the surviving committee of the person and estate of his mother Mrs. Livingston, a lunatic, applied to the court below on petition for certain directions relating to the management of the estate, and for an allowance by way of salary for his services.

Herman Le Roy, as surviving executor of John G. Leake deceased, filed his bill in the court of chancery against the appellants, as executors of Augustine H. Lawrence deceased, to recover the amount of about fifty thousand dollars together with the interest thereon for several years, which debt, as the complainant alleged, was due to his testator from the firm of Augustine H. Lawrence & Company; which consisted of Augustine H. Lawrence and his son Augustine N. Lawrence, one…

<p>On appeal from a decree of the court of chancery, reversing an order of the vice chancellor of the first circuit. The suit, in which the motion was made, out of which this appeal arose, was Archibald Wait v. James Crawford, administrator de bonis non of William Cranford, deceased, and James Ferris Jr. It was instituted before the vice chancellor' of the first circuit for the foreclosure of a mortgage, executed by W. Crawford in his lifetime, to the complainant; and Ferris was made a defendant as the owner of the equity of redemption. James Oakley was the first administrator of the mortgagor, and was originally a defendant. He died pending the suit before the vice chancellor, and it was revived against James Crawford, as administrator- d,e bonis non. The assistant vice chancellor* had made a decree of foreclosure, which directed that out of the proceeds of the sale of the mortgaged premises $1065,83 should be paid to the complainant, together- with his costs; and $43.96,05 to the defendant, J. Crawford, as administrator &e., if the premises should sell for sufficient to make such payments, and if not, that the balance after the paying the complainant should he paid to the administrator—the remainder of the proceeds, if an.y, to.be brought- into court-. From this decree both- defendants appealed to the chancellor. Pending that appeal Ferris paid the amount due the complainant with interest an,d th.e costs of suit, to his solicitor; and the- solicitors, for- both parties signed a stipulation that the bill he dismissed as to the complainant without costs. Shortly afterwards, the defendant Crawford, as administrator of W. Crawford, executed to Ferris, a release of his interest in the decree, discharging the premises, therefrom and from the mortgage. The release stated, that it was given in consideration that Ferris “had agreed and undertaken to pay and discharge all th.e just debts against the estate of the said William Crawford, deceased,” These, papers, were executed in January, 1841- In Nov. 1843, the defendant Crawford finding, as he supposed, that he had been fraudulently deceived into the execution of the release, procured the complainant to prosecute the appeal: and in May, 1844, the-decree of the assistant vice chancellor was affirmed by default. The defendant Crawford then procured the mortgaged premises to he sold pursuant to the decree, and became the purchaser at $3000. The defendant Ferris, and OJaiborne Fen-is, then moved the, vice chancellor, upon affidavits shewing the above mentioned stipulation, and release, and that C, Ferris, had. become, interested in the premises, by having taken ajx assignment of a. mortgage executed upon, a sale, thereof made by- the defendant Ferris, to F. T. Ferris, in January, 1839, for an order setting aside all the, proceedings in. the-cause subsequent; to the stipulation, to dismiss &c. Affidavits- and papers on behalf of the complainant and: of the defendant Crawford, W.ere read in opposition- The facts djsclospd in. these papers, are stated in the opinion delivered by the chief justice. Th"e vice chancellor, in November, 1844, made an order authorizing the Cling of the stipulation dismissing the bill as against the complainant—setting aside the master’s sale and subsequent proceeding's, and declaring the same void, and directing the defendant Crawford to pay the costs of the application, without prejudice, however, to his right to file a bill to set aside the release.</p> <p>Crawford appealed to the chancellor, who reversed the order of the vice chancellor and ordered the motion to be dismissed with costs, and directed the proceedings to bé remitted &c., whereupon J. & C. Ferris appealed to this court.</p>

For the facts in the case and the opinion of the chancellor, see 10 Paige, 352. The case was submitted on written arguments: by

Motion on the part of the plaintiff to set aside the report of a sole referee. The action was assumpsit on a contract by which the defendants agreed to employ the plaintiff to serve them as superintendent of their rail-road. The case proved was as follows: the defendants employed the plaintiff to superintend their railroad for one year, from May 1st, 1843—at a salary of $1500 for the year, together with the use of a dwelling house worth $150 per annum.

A.ction for a malicious prosecution, tried before Ruggles, C. Judge, at the Westchester circuit, in November, 1843. The defendant had charged the plaintiff with stealing two of the defendant’s yearling cattle, for which the plaintiff was indicted in Oneida county, in December, 1840; and he was tried and acquitted in March following. The leading features of the case, so far as they were known to the defendant at the time he went before the grand jury, were as follows.

<p>Where cross notes are made and specifically exchanged by the makers, each note is the proper debt of the maker thereof, and each holder is a purchaser for value. Per Beardsley, J.</p> <p>And if such notes are transferred at a discount beyond the legal rate of interest, the makers cannot set up usury against the endorsees. Per Beardsley, J.</p> <p>Where one made a note for the accommodation of the payee, who gam the maker security that it should be paid when due, and then transferred it at a greater discount than the legal rate; held that such note had no inception until such transfer, and that it was void for usury.</p> <p>Held also, that the maker could set up the defence of usury, although the payee when he transferred the note had represented to the holder that it was business paper,</p> <p>And where upon such transfer the payee informed the holder that it was business paper, and guarantied the payment of it, and the maker after it fell due took it up and gave his note directly to the holder; held that such second note was usurious.</p> <p>But the payee, in a suit upon the guaranty, could not set up usury. Per Beardsley, J.</p> <p>And if the maker had purchased of the holder his claim on the guaranty against the payee, a note given as the consideration of such purchase would not have been usurious. Per Beardsley, J.</p>

Action on the case, tried at the Kings circuit in December, 1842, before Kent, late C. Judge. The suit was brought to recover the value of a vessel called a barque, belonging to the plaintiffs, which, as Was alleged, was lying fastened to a dock in the East river in the city of Brooklyn, in July, 1842, when the defendants severed the fastenings and cast her loose, by reason of which she floated off with the tide and was injured and rendered worthless.

Error from the Schoharie common pleas, to review a jtidg ment of that court in a cause commenced by Stryker against Gregory in a justice’s court and determined in the common plena on appeal. The action was trespass for a. wagon, and the defen dant, who was a constable, justified the seizure of it under an execution against one Rose; and the question was whether the wagon when taken by the defendant belonged to the plaintiff or Rose.

Trespass quare domum fregit, tried at the Chenango circuit in January, 1845. The defendant, who as a deputy sheriff, had in his hands a fi.fa. against the plaintiff, went to his house on the 26th day of December, 1840, and found it fastened against him. He requested admission for the purpose of completing an inventory and taking charge of goods in the house, which he insisted he had levied on the evening before.

<p>Error to the Saratoga common pleas. Sally and Wealthy Dunn sued Hewitt in a justice’s court in trespass for a wagon. On the trial it appeared that the defendant took the property as a constable by virtue of an execution from a justice’s court against Peter Dunn, the father of the plaintiffs. The plaintiffs made title to the wagon, as follows: Peter Dunn, who formerly owned it, confessed a judgment in favor of one Smith, and it was sold upon an execution on that judgment to Marshall. The plaintiffs claimed to have purchased it of Marshall, and called P. Dunn as a witness to prove, among other things, the fact of such purchase. He testified to the purchase as a matter within his knowledge, and was cross-examined by the defendant. The plaintiffs again examined him, and upon a further cross-examination he disclosed for the first time the circumstance that a bill of sale had been given by Marshall upon the purchase by the plaintiffs. The defendant then moved to strike out so much of his testimony as related to that transaction unless the writing should be produced, on the ground that the written transfer was the only competent evidence of that fact; but the justice refused to expunge it, and the bill of sale was not produced. The justice rendered judgment for the plaintiffs, which the common pleas affirmed on certiorari, and the defendant brought error here.</p>

Error from the Columbia common pleas to review a judgment of that court reversing on certiorari a judgment rendered before a justice of the peace. The plaintiffs in error were also plaintiffs in the justice’s court.

<p>Error to Seneca C. P. Dunlap sued Hunting before a justice in trover for two law books; and the case was as follows: The plaintiff was. a constable of Ovid, Seneca county, and had a warrant from the president of a court martial to collect a fine from the defendant. The plaintiff went to the defendant’s office in Farmerville, and levied upon two of his law books, which were left in the defendant’s possession on his agreeing to deliver them to the plaintiff at some future time. The plaintiff afterwards saw the defendant at Ovid, and demanded the books. The defendant replied, either that he had not got the books, or that he would not give them up; the impression of the witness was, that he said he had not got the books. The defendant called the president of the court martial which imposed the fine, and proposed to show that the court had no jurisdiction. The witness said he had a written appointment from the commandant of the regiment. He was asked if he had the appointment in his possession, and if he would produce it. The plaintiff objected, and the justice overruled both of these questions. The jury found a verdict for the plaintiff for §2,35, on which the justice rendered judgment. On certiorari, the O. P. reversed the judgment; and the plaintiff brings error.</p>

Debt against the defendant as sheriff of Albany county for the escape of one John F. Jenkins from the jail limits, tried at the Albany circuit in April, 1844, before Parker, C. Judge. Jenkins was committed to jail June 4, 1842, on a ca. sa. issued upon a judgment in favor of the plaintiff against him, rendered in the mayor’s court in an action for a tort.