Volume 2 — Hill & Denio's New York Reports

Certiorari, at common law, to remove the proceedings of the corporation of the city of New-York in constructing a new sewer in Chapel-street, from Duane to Canal-street.

<p>Ia aonfirming or setting aside reports of commissioners of estimate and assessment in New-York street cases, this court exercises only a limited jurisdiction, which ceases the moment an order is made one way or the other; and consequently a motion to set aside such order, either on the merits, or because of irregularity, cannot be entertained.</p> <p>The acts of officers of municipal corporations, if plainly judicial in their character, may be reviewed on certiorari; but otherwise, in respect to mere corporate or ministerial acts.</p> <p>A certiorari will not be allowed for the purpose of reviewing the proceedings of the corporation of the city of New-York, in appropriating lands for the opening or widening of streets, &c.</p> <p>Nor will it lie to review the proceedings of any person, officer, or body, acting under a naked power, though conferred by law, to take private property for public use.</p> <p>Where the acts of corporation officers are the proper subjects of review by certiorari, the writ should be directed to them, and not to the corporation.</p> <p>Semble, a tax assessment, or an assessment of damages for property taken for public use, is a proceeding sufficiently judicial in its nature to constitute the subject of review by certiorari, provided no other objection exists.</p> <p>A certiorari, however, will not be allowed where another direct remedy, (e. g. by appeal,) is given.</p> <p>The right of .opposing a motion for confirming the report of the New-York commissioners of estimate and assessment is in the nature of a remedy by appeal, and therefore a certiorari will not be allowed to review their proceed, ings.</p> <p>Upon a common law certiorari the court will not examine the proceedings returned further than to ascertain whether the inferior tribunal has kept within its jurisdictional limits.</p> <p>The case of Baldwin v. Calkins, (10 Wendell, 166,) so far as it affirms that the principle of an assessment may be reviewed by certiorari, questioned.</p> <p>An application for a certiorari commanding a return of the evidence, should be refused ; or, if inadvertently granted, the writ should either be quashed or the return disregarded pro tarda.</p> <p>A prohibition will not lie to a corporation, to stay them in the execution of a naked statute power, ministerial in its nature.</p> <p>The granting or withholding of a common law certiorari is in all cases matter resting in the discretion of the court; and where it will opeiate a public inconvenience, the party should be left to his remedy by action. Hence, semble, if the writ is applied for to review city and village assessments for streets, sewers, and the like improvements, where the assessment falls upon a considerable number of persons, it should be denied.</p> <p>After confirmation of the report of the commissioners of estimate and assessment in New-York street cases, it is commonly a matter of course to allow a certiorari to the justices of this court, if applied for, in order to enable the party to remove the proceeding into the court for the correction of errors.</p>

Information in the nature of a quo warranta against the defendant, for exercising the office oí judge of the court of general sessions in and for the city and county of New-York. The information was filed June 15, 1840, and alleged the usurpation from the first day of that month.

<p>A mandamus will not lie to compel the supervisors of the city and county of New-York to audit and allow the salary of an associate judge of the general sessions; as, under the act of May 14th, 1840, (Sess. Laws of 1840, p. 257,) such judge has an adequate remedy by action, which was not taken away by the subsequent act of May 26th, 1841.</p> <p>The court will not grant a mandamus in favor of a party who has a plain and adequate remedy for the alleged grievance by action.</p> <p>Otherwise, semble, if the only remedy be by action on the case for official misconduct.</p> <p>The act of May 14th, 1840, above referred to, was constitutionally passed.</p>

Error from the New-York C. P. Cook brought trespass against Waddell, a marshal of the U. S. for seizing and selling the goods of Cook under a ft. fa. against Bowne, who was a joint owner of the goods with Cook. ‘ The marshal sold the whole interest in the goods. There was evidence in defence, tending to show that the plaintiff consented to a sale of the whole interest.

<p>Where a creditor by mortgage became also the purchaser under a senior judgment, and within the proper time furnished the sheriff the requisite evidence of his right to redeem pursuant to the act of Slay 26th, 1836; held, that a junior creditor, in order to entitle himself to the sheriff’s deed, must pay not only-the sum bid, &c. but the mortgage also.</p> <p>The clerk’s certificate of a copy of the mortgage, required to be furnished under the above act, is sufficient, though it be neither dated nor sealed.</p> <p>A creditor need not wait till the expiration of a year from the sale, before furnishing the documentary evidence of his right to redeem. Accordingly, where the sale took place on the 23d of April, 1838, and the papers were delivered to the sheriff on the 8th of April, 1839, the creditor’s affidavit of the amount due, moreover, being dated two days before; held, sufficient, Bronson, J. dissenting. Semble, that statutes allowing a redemption from judicial sales should be construed liberally, as in favor of the debtor and his redeeming creditors.</p>

On demurrer. The declaration sought to charge the defendants as makers of a promissory note dated August 8th, 1825, by which they, jointly and severally, for value received, promised to pay to “the order of the endorser’s name at the Utica Bank eight hundred dollars and twenty-five c'enté,” four months after date.

Demurrer to replications. The action was debt on a judgment in the supreme court of Ohio, rendered against Hiram Pratt, William F. P. Taylor, Gilbert Knapp, Eliphalet Tinker and Charles Forsyth.

Ejectment to recover the premises known as No. 54 Broad-street in the city of New-York, on the ground that the same had escheated to the people of this state, tried before Edwards, C. Judge, at the New-York circuit, in October, 1840. Manuel Myers, an American citizen, died seized of the premises in question in May, 1799, leaving no lawful issue, and leaving no blood relatives éxcept such as were aliens_ and natives of Germany.

<p>Demurrer to declaration on a bond of submission to arbitrators, alleging non-performance of the award. The submission was between the plaintiff Case, the defendant Ferris, and .one Elderton, of all their “ accounts and difficulties,” as partners, &c. The award, as set forth in the declaration, was, that Ferris pay to Case $905,12; that Elderton pay to Case $503,14; that out of this money Case should receive $298,15; that .the rest should be applied by him to pay the company debts; and if any thing remained after paying said debts, that it should be equally divided between the partners. The breach alleged consisted in Ferris’ non-payment of the $905,12.</p> <p>The defendant demurred, assigning special causes of demurrer ; and among others, that the award was not final, &c. The plaintiff joined in demurrer.</p>

On error from the Oneida C. P. The action below was replevin, by Wright, against Briggs, the collector of the village of Rome. Briggs took the plaintiff’s goods under a tax warrant' professedly founded on the 8th section of the act to alter the charter of the village of Rome. (iSess.

Assumpsit, tried before Cushman, C. Judge, at the Albany circuit, in 1840. The plaintiff gave in evidence a promissory note, as follows: “ Knox, March 30, 1837. Six months from date, for value received, wé jointly and severally promise to pay Daniel Seabury or bearer the sum of one hundred and twenty-five dollars, with interest from date.

The pleadings, and the questions raised upon them, may be briefly stated as follows: Declaration, trespass, assault and battery, at Starkey, Yates county. Pleas, 1. Not guilty; 2. Son assault demesne, alleging that the plaintiff, with a large stone in his right hand, broke and entered the 'defendant’s close and assaulted the defendant with great violence and rudeness, disc.

<p>The appointment of a person to a second office, incompatible with the first, is not absolutely void ; but on his subsequently accepting the appointment and qualifying, the first office is ipso facto vacated.</p> <p>The removal of an officer appointed by the governor and senate can only be effected through the direct action of the senate upon an express recommenda~ tian of removal by the governor. Hence, an allegation that the governor, by and with the consent of the senate, appointed another in the place of such officer, is not equivalent to an averment of his having been removed. Cowen, J. dissented.</p> <p>Semble, even if one is removable from office by the mere act of appointing another in his place, the removal is incomplete till the former has been duly notified of the appointment; and quere, whether notice of the appointee’s acceptance is not also necessary. Per Cowen, J.</p>

Covenant, tried before Cushman,- C. Judge, at the Schenectady circuit, in October, 1839.

Assumpsit, tried at the Madison circuit, in March, 1840, before Gridley, C. Judge. The caption of the declaration was of October, 1838. It contained the common money counts, under which the plaintiffs sought to recover the amount due on a promissory note made by the defendant, dated June 16th, 1832, and payable at ninety days. The defendant pleaded, non-assumpsit; also, actio non accrevit infra sex annos.

Assumpsit, tried before Dayton, G. Judge, at the Monroe circuit in July, 1841. Defence, infancy at the time the promise was made: to which the answer set up was, that the defendant had made a new promise after he became of age.

<p>Assumpsit, tried at the New-York circuit, March 13th, 1841, before Gridley, G. Judge. The action was by the plaintiffs, as second endorsees of a promissory note of $1000, made by the defendants, and payable to the order of James Smith. The latter had endorsed it specially payable to Seaman & Smith. The only endorsement by Seaman & Smith was thus: “ Rec’d. New-York, Oct. 26th, 1839, three hun dred and sixty three dollars fifty-eight cents. (Signed) Seaman & Smith.”</p> <p>Among other proof given by the plaintiff on the trial, they showed that a short time after this suit was commenced, the defendant, Biggs, called on the plaintiffs’ attorney and, after inquiring as to the amount of the note, the costs, &c., promised to call again in a few days and pay the amount.</p> <p>The plaintiffs offered to prove that Seaman & Smith actually transferred the note to them, (the plaintiffs,) after the endorsement last mentioned, and that at the time of the transfer they (Seaman & Smith) intended the endorsement should operate by way of negotiating the note to the plaintiffs. This was overruled, the circuit judge however saying, he would allow proof that such was the intent of the defendants at the time of making the endorsement.</p> <p>The plaintiffs next offered to show, that before this suit was commenced, and after the note had been transferred to the plaintiffs, the defendant Biggs admitted his liability, and promised to pay it. This was objected to as inadmissible in any view; and especially, as the declaration contained no special count on such a promise. The objection was sustained. No further evidence being offered, the plaintiffs were nonsuited, and now moved for a new trial on a bill of exceptions.</p>

On error from the Cortland common pleas. Baldwin sued Delevan before a justice, and declared in casé, for a fraudulent misrepresentation on an exchange of horses. The cause was tried by jury, who found a verdict for Baldwin, upon which the justice rendered judgment. Delevan carried the cause to the common pleas by certiorari.

Replevin, tried before Gridley, C. Judge, at the Erie circuit, in August, 1840. The defendants avowed the taking for rent in arrear under a paroi demise of certain premises for one year from the 22d day of September, 1836, at the yearly rent of $500, payable at the end of the year. On the trial, the defendants made out their case, except that it appeared the rent was payable half yearly. The plaintiffs insisted that this was a fatal variance.

<p>In an action by a corporation against one of its members to recover certain instalments due upon his stock subscription, the defendant pleaded, that by reason of his default in respect to another instalment, all the shares subscribed by him had been declared forfeited by the company, pursuant to a power contained in their charter, and that the stock forfeited was equal in value to the amount claimed in this suit: Held, that the plea was defective in substance.</p> <p>Otherwise, had the plea averred either an actual appropriation of the stock forfeited to the extinguishment of the instalments sued for, or that its cash value was equal to the whole amount of the defendant’s subscription.</p> <p>A stockholder has no power to appropriate a forfeiture thus declared to the extinguishment of particular instalments.</p> <p>The stock, under such circumstances, being in the nature of a pledge for the whole debt of the stockholder, (i. e. the entire amount of his subscription,) its application, when forfeited, is to be in equal proportions to all instalments, whether then payable, or only to become payable.</p> <p>The general doctrine as to the application of pawns and pledges to the extinguishment of the debt secured, adverted to, and considered.</p> <p>In general, payment and acceptance of a debt after suit brought for it, extinguishes all claim to costs, these being but an incident to the debt</p> <p>So, as to accord and satisfaction, release, or any other act pending a suit which works an absolute discharge of the principal demand, or reduces it to a sum not large enough to carry costs.</p> <p>Otherwise, where a payment is received specially or in deposit, to apply if the costs are afterwards paid.</p>

Assumpsit, tried before Dayton, C. Judge, at the Erie circuit, in January, 1840. The action was on a promissory note made by Mathews, and endorsed for his accommodation by Goodrich & Stebbins, the other defendants. The defence was usury; and the endorsers, after releasing the maker from all costs and charges on account of the suit, called him as a witness. The judge admitted him, and the plaintiff excepted. Yerdict for defendants.

On error from the superior court of the city of New-York. The suit below was trover, by Low vs. Stevens for certain mattresses, «fee. It was in proof that they were sold by Low to Stevens in the city of New-York, at an agreed price, payable in certain endorsed notes, and delivered to Stevens conditionally; i. e. he was, after going to and returning from Boston, to deliver the notes, or return the goods.

. Assumpsit, tried at the Onondaga circuit, on the l7th of April, 1840, before Moseley, C. Judge. The declaration contained the common money counts, to which the defendant pleaded actio non accrevit, &c., within six years next before the exhibiting of the bill, and the plaintiffs replied, taking issue, instead of showing a copias sued out and continued.

<p>The taxation of a district attorney’s account, pursuant to regular notice, is a judicial act, and cannot be questioned in an action against him by the county to recover back moneys received over and above his legal fees.</p>

Assumpsit, tried at the Oneida circuit on the 8th of October, 1840, before Gridley, C. Judge. The declaration contained counts for goods bargained and sold, and also for goods sold and delivered.

Assumpsit, tried at the Niagara circuit, in October, 1840, before Dayton, 0. Judge. The action was on a guaranty of a promissory note, made by J. D. Jennings, payable to the order of S. Jennings, and by him endorsed in blank. On this the defendant endorsed a guaranty thus: “ For a valuable consideration, I guaranty the collection of the within note. Lockport, August 8th, 1837.

Assumpsit, tried at the Albany circuit, on the 20th of October, 1840, before Cushman, C. Judge. The action was brought to recover the amount of a promissory note, of which the plaintiffs claimed to be endorsees. The note was payable ninety days after date, to B. Fenner & Co., or order; and was dated March 27th, 1837.

<p>On error from the Tioga common pleas. Jones sued Goodrich before a justice in trover, for taking and converting manure and boards, {inter alla,) the alleged property of Jones. The proof before the justice was, that in September, 1835, Jones contracted to sell a farm to Goodrich, for a money consideration payable 20th April, 1836.' Under this agreement, Jones, by Goodrich’s consent, conveyed a part of the farm to one Yose, and the residue to Goodrich, who claimed and converted to his own use certain fence boards lying on Yose’s part; and certain manure in the barn-yard on his own part. This was after the deeds were executed. At the time of the deed to Yose, the boards were on the premises. They had all been in fence on that part and some still remained so; though a good many of them were displaced, some let down and some blown down. The manure lay in the barn-yard, on Goodrich’s part, where it had been accumulating for a long time. The conversion of both by Goodrich was proved; but the justice holding that both passed by the deeds, rendered a judgment for him, (Goodrich.) On certiorari by Jones, the C. P. reversed the judgment, on the ground “ that the manure was personal property, and did not pass to the vendee.” Goodrich brought error to this court.</p>

Ejectment, tried at the Tompkins circuit, in February, 1840, before Monell, 0. Judge. The action was brought to recover a piece of ground covered by the west wall of the plaintiff’s brick building, in the village of Ithaca.

Replevin, tried at the Onondaga circuit, April 1841, before Moseley, C. Judge. The action was for taking and detaining certain brown manufactured cloths. On the trial it was admitted that the taking complained of, was a levy-on the goods by the defendant, sheriff of Onondaga, in virtue of two writs of fi. fa. against Robert Muir.

Assumpsit, to recover the amount of stock subscribed by the defendant to the original articles of association of the Albany Exchange Bank, organized under the general banking law. The declaration set out the articles at length, which xvere dated October 18th, 1838. The declaration further alleged, that the defendant subscribed for 50 shares, at $100 each.

<p>A tenant for life; though entitled to reasonable estovers, has no right to dig up and use soil or wood on the demised premises, with a view to the manufacture of bricks for sale ; and if he do so, the landlord is entitled to an injunction restraining him from committing further mischief of the like character.</p>

A bill was filed before the chancellor by the respondent, the State of Illinois, against Delafield, the appellant, for discovery and relief concerning certain bonds or certificates of public stocks of that state, alleging, among other things, that they had been obtained by Mr. Delafield from the state officers or agents, under a contract which the latter had no authority to make.

P. Babcock, as administrator of Barnes, brought traver against Booth in the court below for a pair of oxen, and the ease was this: Barnes the intestate bought the oxen of one Ives, in February, 1837, paid him $25 down and gave his note for the balance, forty dollars, payable the first of November following, which the defendant signed as surety. Barnes died on the 10th of November, 1837, leaving the rióte unpaid, and it was paid by the defendant in December following.

Assumpsit, tried before Moseley, 0. Judge, at the Cayuga circuit, in October, 1840. The suit was brought under the statute of 1832, authorizing the joining of several parties to a note or bill in one action. The defendants were Aaron Hovey, Lindley P. Hovey, and Gaston. The declaration contained the money counts, and the plaintiff served with it a copy of the instruments given in evidence. On the trial the plaintiff offered in evidence a promissory note, as follows: “ $120.

<p>\y. sued C. and B. in debt on a judgment against them jointly; to which B. pleaded, that as to all of the debt demanded except $100 and interest, the suit in which the judgment was rendered was commenced by declaration served on C only, and not on B. who did not appear therein—that the judgment was upon a promissory note given to the plaintiff by C., without the assent of B., in the name of C. and B. as partners—that the note included a private debt of C., in addition to the said $100, which was a debt of the firm, all which was known to the plaintiff. The plea concluded by praying judgment, &c., except as to the $100 and interest. On demurrer the plea was held bad, as being an answer to only part of the declaration.</p> <p>Held further, that the matter set up in the plea was proper evidence, by way of partial defence, upon an issue of nul tiel record.</p> <p>Where matter of total or partial defence cannot be pleaded, it may be given in evidence under the general issue.</p> <p>Matter of defence that cannot be pleaded is unavailable under a notice of special matter.</p>

<p>Where the second section of a village charter, after providing for the election of particular officers by the inhabitants, added—“ and the trustees shall appoint one attorney, tyc., and such other officers as shall be authorized by this actHeld, that as the subsequent sections spoke of a collector, by way of pointing out his duties, &c., though he was not otherwise mentioned in the charter, the power of filling that office was sufficiently conferred, and belonged to the trustees.</p> <p>Semble, that if the charter of a municipal corporation confers the power of filling an office, but is silent as to the mode, the power is to be exercised by the inhabitants, and not the trustees.</p> <p>An officer of a municipal corporation is a public officer within 2 R. S. 696, § 38, providing for the punishment of official delinquency as a misdemeanor</p>

Error from the mayor’s court of the city of Rochester. The action was by Hunger against John Hawks as endorser of a promissory note. He pleaded in abatement the non-joinder of Jabez D. Hawks as a co-defendant. Hunger replied that Jabez was not a joint contractor.

Assumpsit, tried before Moseley, C. Judge, at the Onondaga circuit, in April, 1841. The action sought to charge the defendant as endorser of a promissory note dated December 31st, 1839, payable on the 1st of June following, at the Franklin Bank, Columbus, Ohio.

Trespass for seizing goods, on an execution, tried before Cushman, C. Judge, at the Rensselaer circuit in March, 1841. The defendant was sheriff of Rensselaer county, and had an execution put into his hands against the plaintiff Sherry, and one Hoyt, endorsed with directions to levy on their joint property, and not on the property of Sherry. Instead of following the directions, the sheriff seized the separate property of Sherry, and for this the present action was brought.

Debt on a limit bond, tried at the Oneida circuit, in October, 1840, before Gridley, C. Judge. Eli Savage had been taken in execution at the suit of the plaintiffs, upon a judgment for costs on the denial by this court of a motion for a mandamus. He, together with Palmer and John Savage as sureties, executed the bond on which this suit was brought, which was dated on the 24th of March, 1838, payable to the sheriff of Oneida, and by him duly assigned to the plaintiffs.

On error from the superior court of the city of New-York. The declaration was for money had and received by Mercein, the defendant in the court below, for the use of Mrs. Smith, the plaintiff below, as administratrix of Jonathan Smith deceased. The defendant pleaded, 1. non assumpsit; 2. actio non accrevit, fyc.; and 3. set-off.

Assumpsit, tried before Gridley, C. Judge, at the Madison circuit in March, 1840. The case was this: Charles H. Chapman was indicted for assault and battery in the general sessions of Madison county, and Abram Lee became bail for his appearance to answer the indictment. Chapman made default in appearing, being absent from the state, and in the state of Virginia.

<p>The trustees of non-resident debtors claimed that certain shares of the capital stock of a foreign bank, which were standing upon the books of the agent of the bank in this state in the names of the debtors, and which had been assigned with the consent of the trustees to third persons and by the latter to the trustees, should be transferred to them by the agent. This was refused, and the trustees procured the appointment of referees in pursuance of the statute, (1 R. S. 801, § 20, 2d ed.) to settle the controversy. On the hearing, an objection was made to the jurisdiction of the referees, who reported in favor of the trustees subject to the opinion of the court. Held, that the referees had no jurisdiction of the case, the matter in controversy not being a debt within the meaning of the statute.</p> <p>Semble, that neither trespass nor trover will lie in such a case; the appropriate remedy for a refusal to transfer, being assumpsit, or a special action on the case.</p> <p>The act of 1813, “ for relief against absconding and absent debtors,” gave the power of appointing referees to settle controversies concerning any debt or demand, &c.; whereas the revised statutes omit the word demand, thus confining the power of a compulsory appointment of referees to narrower limits than the old act.</p> <p>The word “demand” is of much broader import than “ debt" embracing rights of action beyond those which can properly be called debts; and is, .in this respect, a term of more extensive meaning than almost any other known to the law.</p> <p>The word “ debt," in its ordinary and legal acceptation, imports a sum of money due upon contract express or implied.</p> <p>The statute relative to attachments against absconding, concealed and non-resident debtors, is in derogation of the common law, and should not therefore be enlarged by construction.</p>

Assumpsit, tried at the Chemung circuit in October, 1841, before Monell, C. Judge. The plaintiffs were administrators of the estate of Dodo Benson deceased, and as such, claimed to recover the amount of a promissory note given by the defendant to the intestate during his life. After his death, thé déféúdant' paid the note to Lucina Benson, the intestate’s widow, in whose hands it then was. This was prior to the taking out of letters of administration.

<p>Assumpsit, by the second against the first endorser of a foreign bill of exchange, tried at the Monroe circuit in July, • 1841, before Dayton, 0. Judge. To the declaration, which contained the usual money counts, was subjoined a copy of the bill of exchange. The defendant pleaded nonassumpsit, and annexed to his plea an affidavit denying that he had received notice of protest. A verdict was rendered for the plaintiff, and the defendant now moved for a new trial upon a case. The facts appearing upon the trial, are sufficiently stated in the opinion of the court.</p>

Debt demanding $1544. The first count set out a sealed agreement between the parties, dated April 27, 1839, by which it was agreed that the plaintiff should let his boat to the defendant for the season of canal navigation for one dollar per day, to be paid by the defendant in monthly payments: averring that the plaintiff did let the boat to the defendant for the season, in pursuance of the contract; and the defendant by virtue of the letting did use the boat for the season,…

<p>On error from the Rensselaer common pleas. Burrell sued out a writ of scire facias from the court below, to revive a judgment rendered by a justice of the peace in his, B.’s favor, against Johnson, which judgment was docketed and a transcript thereof filed in the office of the clerk of Rensselaer county on the 24th day of October, 1827. The writ was tested in May, and returnable in September, 1837. Johnson appeared and pleaded, that the judgment was rendered more than six years before the issuing of the writ. Burrell demurred to the plea, and Johnson joined in demurrer. The court below gave judgment for Burrell upon the demurrer, and to reverse this judgment Johnson brought error.</p>

On error from the superior court of the city of New-York. The action below was ejectment by Van Winkle against Constantine, to recover an undivided share of certain premises in said city, known as lot No. 182, Fulton street.

<p>Assumpsit by the endorsees against the endorser of a bill of exchange, tried at the Monroe circuit, in July, 1841, before Dayton, 0. Judge. The bill was in these words:</p> <p>“ $1000. Bank of Western New-York, Rochester.</p> <p>Four months after date, please pay to the order of Joseph Strong, Esq. one thousand dollars, and charge this institution.</p> <p>M. F. Reynolds, Cashier.</p> <p>E. B. Strong, Esq. Pres’t.</p> <p>No. 4 Wall-street, New-York.”</p> <p>Endorsed—“ Joseph Strong.”</p> <p>Written across—“E. B. Strong, Pres’t.</p> <p>Geo.- C’r.”</p> <p>The plaintiffs proved the signature of Reynolds the drawer, E. B. Strong the acceptor, and Joseph Strong the endorser of the bill, and proved due demand of the acceptor, and notice of non-payment to the endorser. The bill was then given in evidence to the jury, and the plaintiffs claimed to recover the amount thereof with interest, being the sum of $1029,21. The defendant proved that the Bank of Western New-York was an association formed under the general banking law, and that Reynolds was cashier thereof. The defendant’s counsel objected to a recovery upon the bill, on the ground that it was issued contrary to the act of May 14th, 1840. (Sess. Laws of 1840, p. 406, § 4.) The judge decided that the plaintiffs were entitled to recover, and permitted them to take a verdict, subject to the opinion of this court upon a case to be made.</p>

Demurrer to replication. The declaration was in replevin for taking, &c. certain goods.

On error from the general sessions of the city and county of Nevv-York.

Demurrer to replication. The declaration was in slander, by husband and wife, for words alleged to have been spoken of the'wife. Plea, that the cause of action Avas released by the husband after suit brought.

<p>A corporation may make a promissory note for a debt contracted in the course of its legitimate business, although not specifically authorized by its charter to contract in that form.</p> <p>Where the charter of a mining company declared the stockholders jointly and severally personally liable for the payment of all debts or demands contracted by the company, and that any person having.a demand against the company, who had obtained judgment against it and procured execution to be issued and returned unsatisfied, &c., might sue any stockholder, &c.: Held, that the suit could be brought only against such as were stockholders when the debt was contracted, and not those who become so afterward.</p> <p>In a suit thus brought against a stockholder after judgment recovered upon a promissory note given by the company, the note will be presumed to have been made when the debt was contracted until the contrary be shewn.</p> <p>The judgment against the company is at least prima facie evidence of the validity of the note, under such circumstances; and quere, whether the defendant will be allowed to impeach either the note or judgment on any other ground save that of fraud.</p>

Assumpsit, on ail award of arbitrators, tried at the Ulster circuit, in November, 1840, before Ruggles, C. Judge. A verdict was rendered for the plaintiffs, and the defendant now moved for a new trial on a case: The facts are sufficiently stated in the opinion of the court.

Covenant, by the plaintiff, as assignee of Kendrick. For that whereas heretofore, to wit, on the 22d November, 1833, at, &c. by a certain covenant then and there made by the defendant under his hand and seal, to and with Stewart B. Kendrick, (making profert of the deed,) by which said covenant the defendant, after reciting that in consideration of a lease on the same day aforesaid executed by Kendrick of three rooms, &c. (specifying the prem ises,) from the 15th of December…

Motion to set aside report of referees. The action was assumpsit for goods sold and delivered, and the defendant claimed to set off the amount. of a certain draft transferred by him to one Yaill, since deceased, who was at the time a copartner of the plaintiffs.

On certiorari to a court of special sessions. A complaint in writing was made before a justice of the peace of Suffolk county, in these words: “ Suffolk county, ss: Jasper Vail being sworn says, that some time in the spring of 1835, Merritt Howell feloniously took and carried xway several loads of manure, of him, the said Jasper Tail, and converted the same to his own use.

Van Slyck sued Nestle in the court below for slander. First count, that the defendant maliciously intending to slander the plaintiff, &c. on, &c. at, On the trial the defendant moved for a nonsuit on the ground that the evidence did not sustain either count of the declaration. The motion was overruled, and the defendant took a bill of exceptions. Verdict and judgment for the plaintiff on all the counts; after which the defendant brought error.

. Assumpsit, tried before Willard, C. Judge, at the Montgomery circuit, November 30th, 1838. The action was on a warranty, that 220 barrels of flour, purchased by the plaintiffs of the defendants, were superfine flour, of good quality. The declaration set forth the warranty, averring a breach, and- also contained the money counts, including a count for money had and received. At the trial, the plaintiff proved the sale and warranty, which took place January 1st, 1838.

On demurrer. The Clinton Bank, an association formed under the general banking law, issued a certificate of deposit, payable to the order of S. Benedict at six months, with interest, of which the plaintiff was endorsee. The question raised by the pleadings was, whether an action could be maintained against the bank on this instrument

Cruikshank sued Walker in the court below, and declared for trespass and false imprisonment. The defendant pleaded first, not guilty; second and third, special pleas of justification.

Assumpsit, tried at the Albany circuit in April, 1841, before Cushman, C. Judge. The action was - against the defendants as makers and endorsers of a promissory note of $4000, made by Smith, Green & Co., payable to the order of Daniel K. Green, and endorsed by the latter and A. Preston. The note was created for the purpose of taking up another note, of the same amount, running at the Oneida Bank.

Ejectment for dower in 50 acres of land, part of military-lot No.. 75, in the town of Galen, Wayne county, tried before Moseley, C. Judge, at the Wayne circuit, in April, 1840. The plaintiff claimed to recover as widow of James Sherwood.

Slander for .works spoken by the wife of Ranney of the wife of Beach, tried before Gridley, C. Judge, at the Oneida circuit in October, 1840. The declaration contained three counts. The first and second counts each alleged the speaking of words actionable per se, as, calling Mrs. Beach a thief; and also words which were not actionable per se, as charging her with incontinence.

Ón certiorari to the Oneida general sessions, where Carter was tried and found guilty of perjury. At the trial in the court below, a material witness for the prisoner admitted, on his cross-examination by the counsel for the people, that he had been complained of and bound over on a charge of passing counterfeit money.

Demurrer to declaration in slander. The first count of the declaration alleged that the plaintiffs were, before and at the time, dec. joint dealers and manufacturers of flour, carrying on business as copartners under the name of “ John Titus &, Go.” and averred that the defendant, in a discourse 'of and concerning the plaintiffs as such copartners and joint dealers, and their pecuniary circumstances as such copartners and joint dealers, and of and concerning their said…

<p>In general, personal actions, whether sounding in tort or contract are transitory, and in declaring, the matter may be laid as having'taken place in the county where the action is to be tried, without any reference to the place where the thing really happened ; and this, whether the matter occurred in this state or elsewhere.</p> <p>Accordingly, under a declaration in slander, which alleged the words to have been spoken at Greece, in the county of Monroe, the plaintiff was allowed to prove, as a substantive cause of action, that the words were spoken at Darlington in Upper Canada.</p> <p>Otherwise, in certain cases, where the place is matter of description.</p> <p>Whether the courts of this state ought to take cognizance of an action for slanderous words spoken in Canada, if both parties are British subjects, quere.</p> <p>An action for slanderous words will lie by one citizen of this state against another, though the words were spoken in Canada.</p> <p>The parties to an action will be presumed citizens of this state, until the contrary appears.</p> <p>In slander, the defendant cannot be allowed to prove the existence of former controversies between him and the plaintiff in mitigation of damages.</p>

Demurrer to plea. The declaration was in case by Lucius Hoyt against the defendants as common carriers, for neglect and carelessness in respect to the plaintiff’s goods which were delivered to the defendants and agreed by them to be transported from the city of New-York to the mouth of St. Joseph’s river, Michigan, but which were lost on their passage.

Replevin, tried before Willard, C. Judge, at the Monroe circuit, in September, 1840. The action was in the cepii for a canal boat, tackle and furniture, which had been levied upon by the sheriff of Rensselaer on an execution against one Dubois, and subsequently delivered to the defendant on his receipting the property to the” sheriff.

Trover for a threshing machine and other property, tried before Moseley, C. Judge, at the Onondaga circuit in April, 1840. On the 18th of August, 1838, Walter recovered a judgment by confession against Ostrander for $110,62 damages and costs, before a justice of the peace.

Motion in arrest of judgment. Gardner commenced a suit in this court against J. & S. Gruikshank, who appeared therein by the same attorney and interposed a joint plea of non-assumpsit. The cause was referred by rule of court, and the referees reported in favor of the plaintiff, whereupon a judgment was entered against the defendants for the amount reported due, with costs.

Ejectment, tried before Willard, C. Judge, at the Saratoga circuit in December, 1840. The plaintiff gave in evidence a deed in fee from Dirk Lefferts and three others to Eyer Schermerhom and John Glen, dated January 27, 1773.

<p>Demurrer to pied. Action on the case against the defendant, late sheriff of Monroe. The first count of the declaration was for not returning, and the second for not levying a fi. fa. The defendant pleaded the general issue, and a special plea of not guilty, ffc. within three years,' Sfc. The plaintiffs demurred specially to the second plea, assigning for cause that the plea should have been actio non accrevit, &c.</p>

Declaration in assumpsit on the common counts, for $600. The defendants pleaded, 1. Non assumpsit; and 2.

<p>Ejectment, tried at the Westchester circuit, in April, 1841, before Rugóles, C. Judge. Verdict for the defendant. The plaintiff now moved for a new trial on a case. The facts are sufficiently stated in the opinion of the court.</p>

Trover for a quantity of quarried stone, tried before Gridley, 0. Judge, at the Lewis circuit, in December, 1840. Held: that the stone at the time of the conversion did not belong to the plaintiff, • but were the property of the state; and the plaintiff was thereupon nonsuited. He now moved for a new trial on a bill of exceptions.

This case will be found in 25 Wend. Rep. 405. The report should have- added, that Bronson and Cowen, Js. concurred in holding the tender of the money, &c. under the circumstances, to be good. Held: however,- that, in general, if no place for the payment of money be specified, the party is bound to seek him to whom it is due, if within the state; and this, though the latter be a resident of the state.

<p>Motion to set aside a fieri facias. Judgment was entered in this court in favor of the plaintiff on the 27th of October, 1841, and on the 26th of November thereafter, stfi.fa. was issued by the plaintiff’s attorney.</p>

<p>The time within which a defendant in replevin may except to the plaintiff’s sureties, is to be computed from the return day of the writ, and not from the day oil which the writ is actually returned.</p>

<p>Where, on motion of the plaintiff upon a bill of exceptions, a new trial was granted with costs to abide the event, and on the second trial the defendant obtained a. verdict; held, that the latter was entitled to his costs of opposing the motion for a new trial.</p>

The cause was noticed as an inquest, and the defendant filed and served an affidavit of merits alleging that he had “ fully and fairly stated his defence,” &c. The plaintiff, supposing the affidavit to be defective, allowed the cause to be passed on its regular call upon the calendar, in the confidence that he could take an inquest on some subsequent day.

Motion that defendant elect to abide by his plea or notice of special matter, which were identical, and that one of them be stricken out.

<p>Service of a declaration in replevin was held regular, though made before either the return day or actual return of the writ, the defendant’s attorney having, previous to the service, given general notice of retainer.</p> <p>Under the 96th rule of this court, a general notice of retainer operates as effectual an appearance as if the defendant had entered his appearance with the clerk.</p> <p>A written admission of service of a.declaration relates only to the mode of serving, and does not in itself amount to a waiver of irregularity as to the time of declaring.</p>

An appeal having been taken to the Chenango common pleas from a justice’s judgment, the appellee moved in that court to quash the appeal, on the ground of divers alleged irregularities. The common pleas denied the motion. This court was now moved in behalf of the appellee, (Gordon,) for a writ of prohibition, forbidding all further proceedings in the court of common pleas.

Judgment in this cause was recovered in the supreme court against the defendant, and on the 18th day of June, 1841, a ji. fa. was issued to the sheriff of Columbia who made a levy upon the goods of the defendant and left them in his possession. Soon after, the plaintiff directed the sheriff not .to proceed to sell unless forced to do so by subsequent judgments until further orders, as an arrangement had been made which, if fulfilled by the defendant,' would prevent a sale.

In August last, a judgment was rendered in favor of Ranch against the relator by the justices of the marine court of the city of New-York. The relator, who was defendant in the marine court, removed the cause by certiorari to the superior court; afterwards the plaintiff (Ranch) applied to one of the justices of the marine court for an execution, offering as security the refunding bond required by the statute.

The relator obtained judgment before J. L. Stevens, who was elected to the office of justice of the peace of the town of Cicero, Onondaga county, at a special town meeting called by the town clerk to supply a vacancy in the said office occasioned by the resignation of Mr. Walkup. The meeting was called within eight days after the resignation, and held on the 29th April, 1841, several weeks after the annual town election.

Motion to quash writ of error. The cause originated in a justice’s court, and, after judgment there, was carried into the Madison common pleas, where judgment was rendered for Moot. Parkhurst sued out a writ of error; and a motion was now made in behalf of Moot to quash the writ -on affidavits which established the following grounds, viz: 1. The certificate of the judge required by the act of May 26th, 1836, (Sess.

Replevin. The goods were taken and the summons served on Friday, and on the next day the defendant interposed a claim of property. The sheriff immediately gave notice to the attorneys of the respective parties, that the jury to try the claim would appear before him on the next Monday, at a time and place specified in the notice.

<p>On a judgment recovered against two defendants as partners, one only having been served with process and appearing; held, that an execution in due form against both might- be issued before the expiration of thirty days by consent of the defendant served with process, no collusion between the plaintiff and the latter-being shown.</p>

Justification of bail. The amount of bail required by the copias issued in this cause was mitigated by the recorder of New-York to $1000. Special bail was-then put in, and having been excepted to, were allowed by the recorder to justify on proof of their being each worth the sum of $1000. The plaintiff objected that the justification was insufficient, and appealed to this court.

<p>Where goods of a tenant are taken in execution, the landlord can only claim of the officer rent due at the time of the levy, and not such as falls due afterward.</p> <p>A mere change of phraseology in the revision of a statute will not alter the law as previously declared, unless it clearly appear that such was the intention of the legislature. See note (b).</p>

<p>It is no answer to a motion to change venue, that the cause is at issue upon demurrer only.</p>

<p>It is regular for the party in whose favor a report of referees has been made to enter judgment thereon, without giving notice to the opposite party of the signing of the report.</p> <p>The party intending to move to set aside a report of referees ■ must serve his papers therefor within four days after the signing of the report; and if he omit to do so, the court will not relieve him unless his neglect be sufficiently excused.</p>

Re-taxation of costs. The plaintiffs entered a rule to discontinue on payment of costs, and gave notice thereof to the defendant’s attorney, offering to pay the costs when taxed. The taxing officer allowed the defendant the usual costs for entering up judgment. A motion was now made, in behalf of the plaintiffs, for re-taxation.

Without the service of process, and without filing a declaration, the plaintiff served the defendants with what purported to be a copy of a declaration and the usual notice requiring a plea.

<p>Where, before plea, a cause is removed from the common pleas intou this court by certiorari, it is irregular for the plaintiff to enter the defendant’s default for not pleading before the return day of the writ, though after its actual return.</p> <p>A default thus prematurely entered will be set aside on motion, even before the return day. “■</p>

<p>Where a plaintiff replies or demurs to a plea puis darrein continuance, and judgment is finally rendered in his favor, he will recoverohis debt or demand with costs. If the defendant obtain judgment, he will recover costs; but as the action was well founded at first, it seems, he can only recover such costs as have accrued subsequent to the plea.</p> <p>It is seldom necessary for the defendant to plead any defence arising after suit brought; for should the plaintiff go on after the suit has been settled, his proceedings will be set aside on motion for irregularity. Semble.</p> <p>Where such defence is interposed by way of plea puis darrein continuance, and the plaintiff omits to answer in time, the defendant is not entitled as a matter of course to enter the plaintiff's default and proceed to judgment; but the latter should be requested to enter a rule discontinuing the action, and if that be refused, the court will; O.i motion, order a discontinuance, or allow the defendant to proceed Vo judgment by default, and the plaintiff will be required to pay the costs of the motion.</p> <p>The meie submission of the subject matter of a pending suit to arbitration, not followed by an award, is not pleadable in bar, but at most only operates a discontinuance.</p> <p>If after such submission, the plaintiff attempt to proceed with the cause, the defendant’s remedy is by motion to the court, and not by plea.</p>

<p>Where an issue to the country is joined upon the assignment of error in fact, and a verdict is found for the plaintiff in error, he cannot enter an order and perfect judgment of reversal as a matter of course, but must make a special application to the court for that purpose.</p> <p>The same practice must be pursued where an issue in law upon the assignment of error in fact is determined in favor of the plaintiff in error.</p> <p>Accordingly, where, on demurrer to the defendant’s plea to an assignment of error in fact, judgment was rendered for the plaintiff in error, with leave to amend on the usual terms, and no amendment having been made in time, the plaintiff proceeded and perfected judgment of reversal without any special application to the court; held, that the judgment was irregular.</p> <p>An order to reverse a judgment, unless it be where the defendant in error is in default for not joining in error, does not belong to the class of common rules.</p> <p>A plaintiff in error is not entitled to the costs in the court below, unless, in addition to the reversal, a final judgment is rendered in his favor; in which case the costs mentioned follow as a matter of course.</p> <p>But if liberty be given to amend, or if in any other form the original action is still to go on, the costs of the court below must abide the final issue of the cause.</p> <p>Semble, that where the defendant in the court below procures the reversal of a judgment on the ground that, being an infant, he appeared and pleaded by attorney, this court may compel him to appear in the suit by guardian, if still an infant, or to plead de nova, if he shall have attained his majority.</p> <p>Where replevin was brought in the common pleas by an infant, without the appointment of a next friend, and the judgment rendered thereon against him was subsequently reversed on error because of this irregularity; held, that the court had no power to relieve the defendant from the costs of the writ of error, or to compel the plaintiff to appoint a next friend “as of the time when the original suit was commenced. «</p> <p>Whether a defendant whose property has been thus taken from him may maintain trover or replevin for it, after judgment upon the writ of error; and whether he has a remedy upon the replevin bond on the ground of the plaintiff not having prosecuted the suit to effect, quere.</p>

<p>Motion for a certiorari. The route of the Albany and West Stoekbridge rail road passes over the relator’s land at Chatham in the county of Columbia. Having failed to agree with the relator and several other land owners in Chatham, the company applied by petition to the first judge of the county for a jury of appraisers, pursuant to the 7th section of the act to amend the charter of the company. [Stat. 1836, p. 363.) The section provides, that “ the said judge shall thereupon direct reasonable notice in writing to be given to the owners of such lands, of the time of drawing such jury, which shall be at the clerk’s office in the county where the land is situated, and upon due ■ proof thereof, and hearing the parties, or such of them as may attend and object to the regularity of the proceedings on the part of the said corporation, such judge, together with the clerk of said county, shall draw from the grand jury box of the county, the names of twelve competent and disinterested jurors, who, by an order to be made by such judge, and entered in the common rule book of the court of common pleas, shall be appointed appraisers of the damage to be sustained by such owners in the construction of such road; and should any person or persons so designated refuse or neglect to serve on said jury, or be disqualified, the vacancy or vacancies shall be filled by the said judge in manner aforesaid.” On presenting the petition the judge made an order requiring notice to be given to the several land owners named in it, that the jury would be drawn at the county clerk’s office on the 26th of October, 1841, at two o’clock P. M., and that the proceeding would be continued at the same place from day to day thereafter, if necessary, until the drawing of the jury should be completed. A copy of the order was served on the relator. At the time and place appointed, several of the land owners attended—the relator among the number—and the judge and county clerk proceeded to draw the jury. The relator objected to two of the jurors whose names were drawn— as to the first, that he had been a commissioner for appraising damages under the act incorporating the Hudson and Berkshire rail-road company; and as to the second, that the juror and his sons or one of them, owned stock in the last mentioned company. No proof was offered of the facts alleged, and the judge overruled the objections.</p> <p>When the names of twelve jurors had been drawn, the judge made an order, which was entered in the common rule book, appointing them appraisers. But the judge at the same time declared that he should hold the proceedings • open until the 29th day of the same month at noon, and would adjourn until that time, for the purpose of then drawing additional jurors in case of a vacancy. The judge thereupon gave an order to one of the deputies of the sheriff to notify each of the jurors of his appointment, and ascertain whether they could attend, and make report on the said 29th of October at noon. At that time the officer furnished the judge with satisfactory evidence that two of the jurors could not attend, and the judge and clerk thereupon drew two other names to supply the two vacancies; and the judge made and entered a further order appointing the two persons so last drawn as jurors in the place of the two who could not attend. The jury of appraisers thus constituted, after having viewed the premises, and heard the relator and his proofs, so far as they were deemed pertinent, appraised- his damages. The relator in his affidavit denied that he knew of the adjournment from the 26th to the 29th of October—having left the clerk’s office before it was announced by the judge—and he did not attend the drawing of the last two jurors; but the counsel for one of the other land holders did attend.</p> <p>The relator now moved for .a certiorari to remove the proceedings into this court, and insisted that they were erroneous.</p>

<p>Where an appeal has been regularly taken from an interlocutory decree of chancery, mere delay in the prosecution of it is not a ground for its dismissal.</p> <p>Nor is it a ground for such dismissal, that the appellant has omitted to give notice of an order to answer the appeal; such order being for the exclusive benefit of the appellant.</p> <p>The only course for the respondent who has received notice of appeal and is desirous of expediting the proceedings, is to answer the petition, and bring the cause to a hearing.</p> <p>An appeal from an interlocutory or final decree of chancery is matter of'right, and if regularly made, cannot be dismissed on the ground of its being frivolous, or intended to awe the respondent into a compromise.</p> <p>One who has appealed from an interlocutory decree of chancery in such a manner as to entitle him to a review, but not to a stay of proceedings, will not be deemed to have waived his appeal by appearing and participating in the subsequent steps of his adversary to obtain a final decree.</p> <p>Whether a party who, after appealing from a decree in his own favor, has taken a step in the court below to carry it into execution, will either be deemed to have thereby abandoned his appeal, or be put by the court below to elect between the decree and the appeal, quere.</p>

<p>An affidavit of merits made and used for one purpose in a cause, cannot be used for another; e. g. an affidavit to change the venue will not he received as the foundation of a motion to set aside a default for want of a plea.</p> <p>And where an affidavit of merits was served with the defendant’s plea, pursuant to rule 1st of May term, 1840; held, not sufficient to prevent the taking of an inquest in the cause at the circuit out of its order on the calendar.</p>

Minier, the relator, attended the common pleas and general sessions of his county, (Chemung,) and brought in his charge for expenses before the board of supervisors at $1,25 per day. The board declined to audit the charge, on the ground that the statute makes no allowance for it. An alternative mandamus having issued commanding them to make the allowance, or shew cause, it was now moved that it be made peremptory.

<p>The statute, (2 R. S. 362, § 1, 2d ed.) authorizing prosecutions in forma pauperis, does not extend to writs of error.</p> <p>Semble, that a release of all actions will embrace things recoverable by way of restitution under or in consequence of a writ of error.</p> <p>Statutes authorizing persons to prosecute in forma pauperis should be construed strictly as-against the applicant:</p>

Motion to set aside the service of the declaration on Shepherd, as irregular. The declaration on file was entitled of January term, to wit, the twenty-first day of February, in the term of January, in the year of our Lord one thousand eight hundred and forty-two. The copy served was the same, except that the year was forty, instead of forty-two.

The relator was a creditor of one Hance, who had applied for the benefit of the insolvent act, (2 R. S. 810, 2d ed., Non-imprisonment Act;) and the 18th November, 1841, at 10 A. M. was the time when the application was to be heard at the commissioner’s office. The relator intended to oppose the discharge, but did not arrive at the commissioner’s office till from five to fifteen minutes after the -hour of ten.

From the relator’s affidavits, it appeared that in 1829, it having become necessary to secure to the Erie canal at Utica an additional supply of water, the canal commissioners appropriated to the use of the state certain land of Mrs. Maria Miller, pursuant to an arrangement with her agent for the purpose of a site for the present weigh lock; with the privilege of a water course to the Mohawk river for discharging the water wasting from the weigh lock, and from the waste-wier…

The action was assumpsit against the defendant as drawer of two checks upon the Commercial and Rail-Road Bank, Vicksburgh, Miss. The first was for $1000 payable to the order of O. M. Lownds in current bank notes, dated New-York, January 2d, 1838.

On demurrer to declaration, which was as follows: Westchester county, ss.

Debt, tried at the Genesee circuit in September, 1840, before Dayton, C. Judge. The action was upon a bond executed to the State of New-York in the penalty of $6000, dated December 29th, 1837, signed by P. A. Barker, acting mayor of the city of Buffalo, and attested by the clerk under the corporate seal.

P., which had affirmed a judgment recovered by Bush & Viele against Kelsey before a justice. The suit before the justice was on a note of $16,50 given by K. to B. and V., dated October 16, 1838. Plea, non assumpsit, with notice of special matter.

<p>Certiorari to the commissioners of highways of the town of Waterloo, Seneca county, to remove their proceedings in the matter of altering and discontinuing a certain road. The notice and application to the commissioners was, ‘to alter the road “leading southerly from, &c. to, &c., by making the same straight, and that so much of said road, &c. as shall not be embraced in said alteration, be discontinued.” The certificate of the twelve freeholders was, that the alteration of the road, “as in said notice applied for,” was, in their opinion, necessary and proper. The commissioners decided in favor' of the alteration, and made out and subscribed a certificate of such determination, particularly describing the road as altered, and ordering so much of the old road as was not included within the new one to be discontinued. The new road, as laid out, embraced within its bounds the plaintiff’s corn-house, which formerly stood in the old road, but had been removed within the contemplated limits of the new one after the above application was made to the commissioners, and notice given. The road was laid out without the consent of the plaintiff.</p>

Assumpsit, tried at the Monroe circuit, in April, 1838, before Dayton, C. Judge. The action was upon a promissory note for $1000, made by the defendants, and payable to the plaintiffs at the City Bank of Albany.

Replevin tried before Edwards, C. Judge, at the New-York circuit in March, 1839. The defendant Freeman, as bailiff* to the defendant, Marquand, distrained the goods of the plaintiffs for rent in arrear; and the question between the parties was, whether the plaintiffs’ goods, after they had been removed from the premises, were liable to the distress.

<p>A cashier who endorses paper discounted by his bank, though simply for the purpose of transmission to an agent for collection, is a party to the paper, within the act of 1833 (Sess. It. ’33. p. 395, § 8) relating to notarial certificates as evidence.</p> <p>Accordingly, in an action on a bill of exchange, which, after several successive endorsements, was discounted by a bank, and then transmitted to the place where it was payable to be collected, having been previously endorsed by the cashier for that purpose solely ; held, that a notarial certificate of presentment and non-payment stating that, on the next day after presentment, notices of protest addressed to the drawer and endorsers respectively were enclosed in a wrapper and sent by mail to the cashier, was evidence of protest in respect to all the parties, and of notice thereof to the cashier.</p> <p>Where a hill or note is endorsed by the holder and sent to an agent for collection, the latter need not give notice of dishonor to all the parties, but it is enough if he notify his principal, who may charge the prior parties by giving them notice himself ; and this, though it appear that had the notices been sent by the agent they would have been received sooner.</p> <p>A bill of exchange was discounted in May, 1837, by a branch of the United States Bank of Pennsylvania, in notes of the old United States Bank; but as it did not appear that the former procured the notes from the latter after its charter had expired, held, no defence to an action on the bill.</p> <p>Otherwise, however, had it been shown that the notes with which the discount was made were procured by the United States Bank of Pennsylvania from the old Bank after its charter had expired, for the purpose of being re-issued and put in circulation.</p> <p>Courts will not lend their aid to enforce the performance of contracts made in violation of law.</p> <p>A party resisting a recovery upon a contract on the ground of its illegality, holds the affirmative of that question ; and if the evidence adduced by him be indefinite and uncertain, the court, it seems, may refuse to refer the matter to the jury, and direct them peremptorily to find against him.</p> <p>A bank at Erie, Pennsylvania, in discounting a bill on New-York, at a time when the difference of exchange between the t.wo places was one half of one per cent, in favor of the latter, exacted that amount beyond the rate of discount fixed by its charter, as a charge for collection; the bank, moreover, being then engaged in selling drafts on New-York at a premium of one half of one per cent. It thus appearing that the trouble and expense of collecting was compensated by the difference of exchange, and the excess beyond the legal discount being entirely unexplained, the Chief Justice, delivering the opinion of the court said, that were it necessary to the decision of the case, he would not hesitate to hold the bill to have been discounted in violation of law, and that therefore the bank could not recover upon it.</p> <p>Otherwise, semble, had the difference of exchange been in favor of Erie, and the hank had only exacted that, in addition to the rate of discount fixed by its charter, together with a suitable charge for collection.</p> <p>So, had the bill been payable at the bank, and the borrower wished the proceeds placed at some distant point, the former might have been justified in deducting the rate of exchange between the two places, and a proper sum for remitting the funds. Sejnble.'</p> <p>As a general rule, the principal is deemed to have notice of whatever is communicated to his agent while acting as such in the transaction to which the communication relates.</p> <p>A principal is responsible for the fraud of his agent, if committed while transacting the business of the former; and this, whether he be a sole agent or one of several possessing joint authority.</p> <p>But notice to a bank director, or knowledge obtained by him, while not engaged officially in the business of the bank, will be inoperative as notice to the latter.</p> <p>In case of a joint agency, (e. g. the directors of a bank,) notice to either, while engaged in the business of his agency, is notice to the principal.</p> <p>Where a hill of exchange was ?ent to one of the directors of a bank to be discounted for the benefit of the drawer, and the former, who was at the time a member of the hoard which ordered the discount to be made, received the avails, alleging the discount to be for his own benefit; held, that the bank was chargeable with knowledge of the fraud, and could not therefore recover upon the bill.</p>

This was an action on the case for cutting down the side-walk in front of the plaintiffs’ store in the village of Watertown, tried at the Jefferson circuit in June, 1840, before Gridley, C. Judge.

The case, as it appeared by the return to the certiorari, was this: An order was made by the commissioners which stated, that the fence directed to be removed, commenced at a stake in the centre of the highway running through Mott’s land, about sixteen rods south of John Bell’s barn—“ thence running north, on the west side of the said highway, the distance of about eighty rods to a certain stake at said Mott’s north line, (according to the late survey of James Sperry,) and…

The declaration was in replevin, by Clark & Saxton, for taking and detaining a large quantity of goods.

<p>In assumpsit, nearly every defence which shows that there was not a subsisting cause of action at the time the suit was brought, is admissible under the general issue.</p> <p>The exceptions to this rule relate to cases where the defence arises by operation of law, as a bankrupt or insolvent’s discharge, the statute of limitations, &c.</p> <p>A former suit and recovery for the same cause of action may be given in evidence under the general issue in assumpsit; and so, semble, in all cases where other matters in discharge of the action may be proved under that issue—e. g. in ejectment and actions on the case, or where the defendant is sued for an act done as a public officer.</p> <p>The case of Fowler v. Hait, (10 Johns. Rep. Ill,) and certain dicta in Dexter v. Hazen, (id. 246,) and Brown v. Wilde, (12 id. 455,) overruled.</p> <p>• In trespass, matters of defence which admit the original wrong, must, in general, be specially pleaded; and hence, in that action, evidence of a former recovery is not admissible under the general issue.</p> <p>A former recovery in a suit wherein the same matter was tried upon the merits between the same parties, may be given in evidence without being specially pleaded, in actions where the party, whether plaintiff or defendant, had no opportunity of so pleading it.</p> <p>Where the record of a former judgment shows that the same matter now sought to be litigated, might have come in question in that suit, the fact that it did come in question, and was there determined, may be established by proof aliunde.</p> <p>Notwithstanding the case of Vooght v. Winch, (2 Bairn. cj* Aid. 662,) a former recovery for the same cause of action, when properly received in evidence undqr general pleadings, is just as conclusive as if the matter had been specially pleaded.</p>

The action in the court below was by the defendants in error against the plaintiffs in error, as makers and endorser of a promissory note.

<p>Error to the Chenango common pleas. Brown sued King before a justice of the peace, and declared upon a special agreement by which the defendant, in consideration of $40, payable in work, agreed to convey to the plaintiff four acres of land ; averring that the work had been done and that the defendant refused to convey. The declaration also contained the common counts for work, labor, <fcc. The defendant pleaded the general issue and, after trial, the justice rendered judgment for the plaintiff for $100. The defendant appealed to the C. P. On the trial in that court it appeared that the contract was by paroi—that soon after it was made, the plaintiff took possession of the land and made improvements upon it by erecting a house and .clearing the greater part of it, and that a few months before the commencement of the suit the defendant sold the premises to one Hutchinson for $100. Sufficient evidence was given to warrant the jury in finding that the contract had been fulfilled on the part of the plaintiff. The land, with the improvements, was proved to be worth from $100 to $140; but the evidence on that point, was objected to by the defendant. The objection was overruled and the defendant excepted. The court charged the jury that, if they found the plaintiff had fulfilled the contract and had gone into possession of the land by the consent of the defendant who had refused to perform the agreement on his part, or had put it out of his power to perform, then the plaintiff was entitled to recover the value of the land at the time the defendant should have conveyed ; and that in estimating the value of the land the improvements should be taken into consideration. The defendant excepted to the charge, and the jury found a verdict for the plaintiff for $120. After judgment, the defendant sued out a writ of error.</p>

Ejectment, tried at the Oswego circuit in June, 1841, before Gridley, C. Judge. The action was brought to recover possession of a part, of the gospel lot in the town of Oswego, (formerly Hannibal.) The plaintiffs claimed title to the premises in question under a deed executed by the trustees of the said lot; (see Sess. Laws of 1821, p. 173, § 12, et seq./) and the only question in the case was, whether the deed operated a valid conveyance of the land.

Ejectment, tried at the Wayne circuit, in April, 1841, before Moseley, C. Judge. The action was brought to recover a lot of land containing 450 acres, situated in the town of Wolcott, Wayne county. The plaintiff gave in evidence an act of the legislature, passed March 26th, 1802, (Sess.

Demurrer to declaration. The action was assumpsit upon three promissory notes not negotiable, made by Abijah Seeley, the defendants’ intestate, and payable to Samuel Seeley. The fourth count of the declaration averred, that after the giving of the notes, to wit, on the 1st day of February, 1833, the said Samuel Seeley died in the state of Connecticut, leaving a will, by which one Sterling was appointed his sole executor, to whom letters testamentary were issued in that state.

Assumpsit, tried at the Monroe circuit, in September, 1840, before Willard, C. Judge. The action was on a promissory note for $181,86, dated February 27th, 1840, made by Charles, and payable to the order of Boswell, (by whom it was endorsed,) at the Bank of Monroe, on the 14th of March then next.

Eeror to the Schenectady common pleas. Pendrigh sued Hurd before a justice of the peace, and declared in case for the value of certain goods alleged to have been delivered to the defendant as a common carrier to be transported from Buffalo to Schenectady, but which were lost upon their passage.

Graves sued the plaintiffs in error before a justice of the peace, and declared upon a promissory note payable to Samuel Case or bearer for $45, dated April 15th, 1833.

Demurrer to declaration for a libel. After the usual prefatory matter, the first count in the declaration alleged, that before the committing of the said several grievances, «fee. the plaintiff pursued the occupation and employment of editor of a certain newspaper printed and published in the village of Ogdensburgh, called the “ Ogdensburgh Times,” by which he acquired great gains, &c. and that the defendant well knowing the premises, «fee. did falsely, &c. print and…

Libel, tried at the Oswego circuit, before Gridley, C. Judge.

Debt, tried at the Montgomery circuit, before Willard, C. Judge. The action was upon a judgment rendered by a justice of the peace against the defendant, in favor of Henry Lieber, since deceased. The justice’s docket was given in evidence, and contained the following entry: “Henry Lieber v. Simon Smith. Assumpsit, July 18th, 1834.

Assumpsit tried before Willard, 0. Judge, at the Fulton circuit, in May, 1841. The plaintiff declared against George G. Johnson, John A. Ehle and John Ostrom, Jr., survivors of Andrew Mitchell, deceased, “ who were partners carrying on trade and commerce under the name, style and firm of Mitchell, Johnson, Ehle & Go.” The defendant Ostrom, pleaded nonassumpsit. It did not appear whether the other defendants had, or had not, been served with process.

<p>Though the statute, in general terms, declares void all contracts and securities affected with usury, yet several exceptions have been allowed to its provisions as in favor of innocent third parties.</p> <p>Various cases recognizing these exceptions cited and commented on.</p> <p>Contracts affected by usury are not so utterly void but that they may be ratified.</p> <p>A deed or contract cannot be avoided for usury by a mere stranger to the transaction ; but only by the party who made it, or some one standing in legal privity with him.</p> <p>A judgment creditor, by selling the property of his debtor on execution, may thus place himself in a situation to contest the validity of any prior lien or incumbrance affected by usury.</p> <p>Accordingly, in replevin against the sheriff for goods taken on execution, where the plaintiff claimed under a prior mortgage executed by the judgment debtor; held, that the sheriff might show the mortgage usurious, as a defence to the action.</p> <p>A purchaser under a judgment and execution, being -an assignee of the debtor by operation of law, may set up usury as against one claiming the property in virtue of a prior incumbrance.</p>

Ejectment, tried before Cushman, C. Judge, at the Columbia circuit, in April, 1840. The plaintiff claimed to recover a piece containing about four acres of land in the town of Copake, Columbia county, and showed title in herself in fee. The defendant thereupon gave in evidence a lease for life, executed by the plaintiff to John Shultis for a piece of land, including the premises in question, and proved that the life estate of Shultis had not expired.

Assumpsit tried before Dayton, C. Judge, at the Monroe circuit. The plaintiffs gave in evidence .a promissory note made by the defendants for $766,57, dated April 24, 1837, and payable three months after date. The defence was usury.

Motion to set aside report of a referee. The action was for goods sold and delivered. The goods were delivered to one D. Y. Doane, and, as the plaintiff alleged, on the credit of the defendants; but the defendants denied that they had any thing to do with the purchase of the goods.

<p>A plea of tender is irregular and may be treated as a nullity, unless the money he paid into court, and notice given of that fact at the time of serving the plea.</p> <p>If, without the money being paid into court, or any notice to that effect, the plaintiff accept a plea of tender and reply taking issue, he will be deemed to have waived the irregularity ; and quere whether, should he fail upon the issue at the trial, he can reach the fund except through a special application to the court, and leave obtained upon terms to avail himself of the defect. in the plea as he might have done in the first instance.</p> <p>On issue taken upon a plea of tender, the question whether the money has or has not been paid in, cannot be litigated at the trial; but must be dealt with like other mere matters of practice.</p> <p>Testimony delivered in another cause to which the plaintiff was a party, cannot be given in evidence against him as a tacit confession of the facts sworn to, though it be shown that he heard the testimony and expressed no dissent; and this, notwithstanding the testimony was given by a witness called on his side.</p>

(2 R. R. 488, tit. 7.) The widow applied by petition to the surrogate pursuant to the statute, and White, who was tenant of the freehold, had due notice. The property consisted of á dwelling house, in which White lived, and a lot of ground containing two roods and fourteen perches of land in the village of Cherry Valley, at which place the surrogate kept his office.

<p>In traver for a bond or other written contract, the plaintiff need not give the date or recite any portion of it in his declaration; but he must allege enough to show who are the parties to the instrument.</p> <p>Semble, that if the declaration designate the instrument as a contract, there ought to be an exnress averment that it was in writing.</p>

Assumpsit tried before Dayton, O. Judge, at the Livingston circuit, in September, 1840.

<p>Where a testator by will, after giving to his wife during her widowhood the income and profits of certain lands, devised the latter to R., his daughter, and the heirs of her body forever, from and after the decease or re-marriage of the wife, with a limitation over to the children of one N. in case R. died without issue : Held, .that R.’s interest under the will was not a mere life estate, with remainder to her issue, but a fee simple.</p> <p>The usual acknowledgment in a deed of lands of payment of the consideration, cannot be contradicted by the grantor or those claiming under him, for the purpose of destroying the effect and operation of the deed; though otherwise, where the object is merely to recover the purchase money.</p> <p>Though a feme covert cannot bind herself by a covenant, yet if she convey her lands in the forms prescribed by law, she is concluded from denying any admitted fact essential to the deed, to the same extent as other grantors j and So with regard to those claiming under her.</p> <p>The possession of a tenant for life is not adverse to the remainder-man; and hence, the latter may make a valid conveyance notwithstanding such possession.</p> <p>One claiming lands as heir of his mother cannot recover in ejectment against an occupant who* entered under the father, while there is an outstanding estate for life in the latter as tenant by the curtesy.</p> <p>Even before the revised statutes, a tenant for life did not forfeit his estate by leasing in fee; and since those statutes no form of conveyance will work such forfeiture.</p>

It appeared on the trial, ■ that the prisoner entered into a contract with one Julia Ann McKinney, dated Januarv 30th, 1841, by which he agreed to give her a quit claim deed of a certain house and lot of ground in Albany on the 30th of January, 1857; in consideration of which she agreed to pay him ¡$5000, in instalments of $6 per week, until the time appointed for executing the deed; she in the mean time to have possession of the premises.

Ejectment, to recover a part of several lots of land, tried before Moseley, 0. Judge, at the Onondaga circuit, in September, 1841. Thaddeus M. Wood died seized of the premises in question in January, 1836, leaving a daughter, Emily, who was married in 1833 to Oscar B. Brackett. On the 21st of October, 1836, Cyril H. Brackett recovered a judgment in this court against Oscar B. Brackett, the husband of Emily, for $2115,72, on which a fi. fa. issued in July, 1838.

Ejectment, tried before Cushman, C. Judge, at the Rensselaer circuit, in September, 1841.

<p>Motion by the defendants to set aside a report of referees in favor of the plaintiff. The facts are sufficiently stated in the opinion of the court.</p>

<p>Assumpsit, tried at the Onondaga circuit, in September, 1841, before Moseley, 0. Judge. The action was against the defendant, Frederick Pratt, as acceptor of a bill of exchange, payable to the order of the plaintiffs. The defendant’s name was written across the face of the bill; and the question was, whether this was such an acceptance as is required by the statute. It was admitted that the defendant, at the time of the acceptance, was a resident of this state. His counsel insisted at the trial that the acceptance was insufficient to charge him, but the circuit judge being of a different opinion, directed the jury to find for the plaintiffs, which" they accordingly did; and the defendant’s counsel, having excepted, now moved for a "new trial upon a bill of exceptions.</p>

Assumpsit tried at the Oneida circuit in October, 1841, before Gridley, C. Judge. The action was by Edward L. Parker against Bradley and five others, upon an instrument in writing without seal, and bearing date February 15th, 1837.

Debt, tried before Gridley, C. Judge, at the Jefferson circuit in June, 1841. The action was against the defendant, as first endorser of a promissory note in the following words: “ Sacketts Harbor, April 1, 1840. Three months after date, I promise to pay to the order of John H. Mack, at the Sacketts Harbor Bank, two hundred and fifty dollars, for value rec’d. Signed—W. C. Mack.” Endorsed—John H. Mack, (the defendant) and R S. Robbins.

<p>Apprentices. By indenture, dated December 1, 1836, it was witnessed, “ that John Plane, son of Perling Plane, aged 14 years the first day of March last past, with the consent of Perling Plane his father, and of his own free will, hath placed and bound himself apprentice to Henry P. North, to learn a certain trade, and to serve until he should be 21 years old. The indenture contained the usual provisions, and was signed by the apprentice, his father and North. Then followed a stipulation in these words: “And for the faithful performance and observance of the said apprentice .of the matters and things by him to be observed and performed as aforesaid, the said Perling Plane, the father of the said apprentice,.doth hereby bind himself to the said Henry P. North, that the said apprentice shall in all things well and truly keep and observe this indenture. (Signed,) Perling Plane.”</p> <p>The apprentice having refused to serve his master according to the indenture, was, on the 16th of November, 1840, brought before a justice of the peace by warrant; and he still persisting in such refusal, was committed to the common jail of the county of Livingston, in pursuance of 2 R. S. 159, § 29. On the 4th of December following the apprentice sued out a writ of habeas corpus, returnable before William H. Smith, first judge of Livingston county; and the judge, on the 11th day of that month, made an order discharging the apprentice from imprisonment, on the ground that the indenture was not in accordance with the statute concerning apprentices and servants, and was not valid as against the apprentice.</p> <p>The proceedings before the judge were removed into this court by certiorari, and the only question was, whether the father had properly signified his consent to the binding. (2 R. S. 154, § 1—3.)</p>

Parker sued Patterson and others in the court below, and declared in debt on bond, dated May 25th, 1839, in the penal sum of one hundred dollars.

Motion to set aside report of referees. The declaration was in assumpsit, upon the common counts for work, labor, &c.; and the plaintiff sought to recover on a demand against the defendant for services in sawing lumber. The services were performed under an agreement that the plaintiff was to receive one half of his pay in goods out of a store, and the residue in cash or neat 'stock.

Replevin, tried at the Dutchess circuit in March, 1841, before Rugóles, C. Judge. The suit was brought to recover certain goods alleged to have been purchased by the plaintiff on a sale thereof under a distress warrant in favor of one Parks against the defendant.

<p>Assumpsit, tried at the Oswego circuit in June, 1840, before Gbidley, C. Judge. The verdict was for the plaintiff, and the defendants now moved for a new trial upon, a case. The facts are sufficiently stated in the opinion of the court,</p>

<p>Where an instrument is read in evidence on proof merely of the hand-writing of a deceased attesting witness, the adverse party may give evidence of the witness7 bad character at the time of attesting, or show his subsequent declarations that the instrument was a forgery. And see note («).</p> <p>If the force of the attestation clause be thus overthrown, and the instrument purport to have been signed by a marksman, it may be established by resorting to collateral circumstances ; e. g. recognitions of it by the alleged maker, his procuring it from the person who drew it, &c.</p> <p>But where the instrument imported an acknowledgment of indebtedness to a given amount for services rendered by the plaintiff, and the character of the attesting witness was thoroughly impeached \ held, that the circumstance of the alleged maker having, previous to the date, declared an intention to reward the plaintiff, was too remote to be admissible, unless offered in aid of other circumstances.</p> <p>The entries of a clerk, when resorted to as a substitute for his oath, may be impeached by proof of his bad character for honesty. Semble, note (a).</p> <p>The general character of deceased attesting witnesses by whom a deed of land has been proved for the purpose of registry, may be given in, evidence by one against whom the registry is sought to be used. Semble, note (a).</p> <p>Where evidence is given tending to charge a deceased attesting witness to a deed or will with fraud in procuring it, the party seeking to maintain the instrument may prove the witness’ good character. See note (a),</p>

Hoysradt sued Rockefeller & Miller in the court below, and declared in debt, as upon an attachment bond in a justice’s court; alleging, among other things, that the defendants by their certain bond, sealed, &c. acknowledged themselves held and firmly bound to the plaintiff in the sum of one hundred dollars, to be paid, &c. for which payment, &c.—proceeding in the usual form of debt on bond, and then adding—which said bond or writing obligatory was and is subject to a certain…

general sessions, where the defendants were indicted for neglect of duty in not repairing, a bridge. The indictment charged, among other things, that a certain bridge in the town of which the defendants were commissioners of highways was out of repair, and that the defendants ought to have repaired it, &c. but that they wilfully and unlawfully neglected to do so.

Case, tried at the Onondaga circuit in April, 1840, before Moseley, C. Judge. The verdict was for the plaintiff; and the defendant now moved for a new trial on a bill of exceptions. The facts are sufficiently stated in the/tpinion of the court.

The action in the court below was case, against Hill and others, the defendants in error, as common carriers, for the value of certain goods delivered to them to be transported from New-York to Philadelphia, but which were alleged to have been lost on their passage.

Ejectment, tried at the Oswego circuit in June, 1841, before Gridley, C. Judge. The action was. brought to recover a part of'lot No. 30, of the military township of Hannibal. It appeared on the part of the plaintiffs that in 1790, the lot in question was granted to Joseph Ten .Eyck by letters patent. Ten Eyck sold to John D. Coe, and he conveyed to Garrett Cottringer for life, in 1791. Cottringer died in 1816.

Trespass for taking a wagon, tried at the Tioga circuit in January, 1841, before Monell, C. Judge. The defence was, that the wagon once belonged to Henry W. Camp, and was seized by direction of the defendants under an execution against the former issued on a judgment recovered in 1839.

Ejectment, tried at the Rensselaer circuit in September, 1840, before Cushman, C. Judge. The action was brought to recover a piece of land containing about five acres, which was occupied by the defendants as a part of their McAdam road leading from Troy to Bennington.

Assumpsit, tried at the Cayuga circuit in February, 1841, before Moseley, C. Judge. The action was by the plaintiffs as endorsees against the defendant as endorser of a bill of exchange drawn by James Treat on Stephen Sicard & Co., New-York, and accepted by them. The bill, which bore date January 16th, 1839, was payable to the order of the defendant at ninety days; and no place of payment was mentioned therein.

Ejectment tried at the Oneida circuit in October, 1841, before Gridley, C. Judge.

Covenant,, tried at the St. Lawrence circuit, in July, 1841, before Willard, C. Judge. The action was upon a contract under seal, dated February 22d, 1841, whereby the defendant, among other things, covenanted not to manufacture or sell any stoves or other castings, or be interested «fee. in the business at any time within three years, within ten miles of the village of Potsdam.

Replevin, tried at the Onondaga circuit in April, 1841, before Moseley, C. Judge. The defence was, that the goods were distrained for rent. On the trial it appeared that a written contract was entered into between the parties in March, 1839, by which the defendant agreed to let the plaintiff have the use of a certain farm for three years, provided the latter wished to occupy it so long.

Ejectment, tried at the Cortland circuit in March, 1841, before Moseley, C. Judge. The case was this: Charles Stewart formerly owned the premises in question. In 1821, several judgments were obtained against him by the plaintiff and another, on which executions were issued and the premises sold to the plaintiff in September of that year. The plaintiff claimed title under the sheriff’s deed executed to him in January, 1823, and recorded on the 14th of the same month.

<p>Case, tried at the Oswego circuit, in June, 1841, before Gridley, C. Judge. The declaration alleged that the defendant exchanged his mares with the plaintiff for a watch of the latter and $50 in money; that the defendant had previously mortgaged the mares to their full value by two mortgages, one executed to W. W. Bracket, and the other to A. H. Hollister & Co.; that the defendant fraudulently represented himself as being the owner, and concealed the fact of his having executed the mortgages, whereby the plaintiff was induced to make the exchange; and that the mares were afterwards taken from the plaintiff in virtue of said, mortgages. Plea, the general issue. On the trial, beside other proof necessary to make out the plaintiff’s case, it appeared in evidence that, after the mortgages were executed, the defendant continued in possession of the mares down to the time of the exchange; after which they were taken from the plaintiff by a constable under the direction of Bracket, to whom the Hollister mortgage had been, assigned, and sold in virtue of the mortgages. The constable had no process, and the plaintiff gave up the mares on their being demanded. The defendant’s counsel requested the judge to charge, that if the mortgages were valid as against the defendant, they were not so in respect to the plaintiff who was a bona fide purchaser ; that he could therefore, have held the mares, and ought to have done so in oppositian to Bracket’s claim, with whom he should have contested the right of property; and that having given them up voluntarily and in his own wrong, he was not entitled to recover in this suit. The judge refused to charge as requested, and the jury rendered a verdict in favor of the plaintiff. The defendant now moved for a new trial upon a case.</p>

Malone sued Clark before a justice of the peace, by attachment, and judgment was rendered in favor of the plaintiff for $73,50. The defendant brought an appeal, and the justice returned that, both parties being present before him, an issue was joined, (setting forth the pleadings, which were in assumpsit,) upon which h.e tried the cause and rendered judgment.

Ejectment, tried at the Madison circuit, before Moseley, C. Judge. The case was this: Isaac White was seized of the premises in question, and died on the 13th of July, 1818. The plaintiffs claimed title by descent, as children and heirs at law of White. The defendant read in evidence a deed of the premises executed by White to his grandson, dated July 9th, 1818.

Assumpsit, tried at the Putnam circuit in May, 1841, before Ruggles, C. Judge. The suit was against Tunis Brinkerhoff, Isaac R. Adriance, Uriah'Gregory and Ira Spooner, upon a note in these words: “ $2000.

P. Van Wyck sued I. & P. Pine before a justice and declared in traver for two oxen, alleging that he had levied upon them, as sheriff, in virtue of an execution against Thompson, to whom they belonged. Issue being joined and atrial had, the justice gave judgment for the plaintiff for $100.

<p>Demurrer to plea in scire facias. The writ was against Westley Anderson, Alva Hunt and Adam G. Ransom, and stated that in May term, 1839, a judgment was recovered in this court, in favor of the plaintiff against the defendants, in a bond executed by them to the plaintiff as sheriff of the county of Chenango, dated January 16th, 1833. The bond contained a recital that Anderson, one of the defendants, had been appointed deputy sheriff; and the condition was, that if the said Anderson should at all times, <fcc. save harmless and indemnify the plaintiff from all costs, damages, expenses and trouble touching and concerning the return and execution of all such processes, writs, Spc. as should be directed to the plaintiff, as such sheriff, and executed by the said Anderson ; and of and concerning the not executing or wrongful execution or detaining in his hands any such process, ifc., then the said bond should be void, &c. The scire facias then alleged as a breach of the said bond, additional to the breaches on which judgment had been previously rendered, that a writ of replevin for a wagon was issued from this court against Miller in favor of Ellis, and delivered to said Anderson to be executed, who seized the property—that Miller sued the plaintiff, as such sheriff, in March, 1834, for the penalty given by 2 R. IS. 433, § 18, 2d ed., alleging that he (Miller) was dispossessed of the wagon by Anderson, who delivered it to Ellis after Miller had interposed a claim of property therein and had tendered to Anderson his fees and the fees of the jury for trying the claim— that after the commencement of the said suit by Miller, the plaintiff notified Anderson of the pendency and object thereof, and requested him to indemnify the plaintiff from all costs, damages, &c. touching and concerning said suit—that the plaintiff retained an attorney to defend the suit, which was tried, and a verdict rendered for Miller—that a new trial was granted, and judgment as m case of nonsuit finally obtained against Miller, in June, 1839—that the costs of the plaintiff here, (the defendant in that suit,) were taxed at $345,94—that Miller became insolvent, and unable to pay the costs—that Anderson had not paid the costs, counsel fees, expenses and disbursements incurred by the said attorney in defending said suit, but had refused to do so ; and that, by reason of such refusal, the plaintiff had been compelled to pay his said attorney the following sums of money, (enumerating them,) amounting in the whole to $544,91.</p> <p>The defendant Hunt pleaded separately, that Anderson performed his duty according to law in the execution of the said writ of replevin—that he did not dispossess Miller of the wagon and deliver it to Ellis after due notice and tender of sheriff’s fees, &c.—and that the plaintiff in this suit was not in any way held or adjudged chargeable or liable to any penalty by reason of the default, misconduct or improper execution of the said writ of replevin, or for any neglect of duty, &c.; wherefore judgment was thereupon rendered in said suit in favor of the said sheriff, &c. To this plea the plaintiff demurred, and the defendant Hunt joined in demurrer.</p>