Volume 2 — Johnson's New York Reports

This was an action of covenant. The declaration set forth a deed, made the 30th August, 1792, between the defendant, of the one part, and Carlile Pollock, of the other part, by which the defendant conveyed to Pollock, certain lots of land in the county of Cayuga.

These causes came before the court, on writs of cer-tiorari from a justice’s court. The plaintiff below brought actions against the defendants, for penalties under the 12th section of the act for. establishing a turn-Pike> (Raws of New-York, vol. 2. p. 459.) for forcibly passing one of the gates of the turnpike, without ,, Paymg toll.

. FROM the return to the certiorari in the cause, it appeared, that when the jurors were called, to try the cause, several of them did not appear: for want of a „ . • 1 1 ’ sufficient number, the justice directed the constable to summon some of the. bystanders, but none were found competent to serve on the jury.

This cause came before the court, on a return to a , „ 7 ■ ,writ of error, directed to the court of common pleas, ol the county of Ontario. The defendant in. error brought his action of slander, against the plaintiff in error, -in the court below. The declaration contained two counts. In the first, the words charged to have been spoken, are, “ }ie has sworn falsely ; Tie has taken a false oath agamsi . , . J V , ,, rni j 7 we m squire Jamison s court.

This was an action of ejectment, for the recovery of ]and Jq the township of Marcellus, in Onondaga county, , ~ ~ and was tried at the circuit in that county, thebthot June, 1806, The lot of land comprehending the premises *n question, was granted to Ephraim Blowers, the 7th of July, 1790.

This was an action on the case, for a breach of contract, m not delivering to the plaintiffs, in agoodand marchantable condition, a certain quantity of beef, purchased by them, of the defendants. The cause was tried, at the Rensselaer circuit, in 1806, before Mr. Chief Justice 'Kent. On the trial, a bill of parcels of the beef, and a receipt of payment in full given by- the defendant the 5th January, 1805, was -proved.

This was an action of ejectment, brought to recover a piece of land, in lot No. 24, in Hassenclsaver’s patent, in Ilerlcimer county, and was tried at the Circuit Court in that county on the 28th June, 1806, before Mr. Justice Spencer.

<p>. This was an action of debt on a bond ; the cause was tried, at the circuit, in the county of Saratoga, on the 28th of April, before Mr. Chief Justice Kent. The bond was dated the 25th of May, 1800, and recited, that wjjerea-s Harris, by virtue of an agreement made with . J . ° Manny, was in possession of 112 acres of land, situated, &c* which lot was leased to Manny by Dirriclc, Lefferts, 0f cjty 0f JVcw- York, deceased, with a reservation of J . . . a yearly rent of 10/. 3s. 10d. and the lease contained a covenant, that if, at the expiration thereof, Manny, his heirs or assigns, should pay the lessor ' 143Z. 12s. that the lessor would convey the land to Manny, by a gufficient warranty deed. The condition of the bond was, J that if Harris paid . Manny the yearly rent specified in lease according to the conditions thereof, and also the sum of 145Z. 12s. by'the 1st day of September, 1802, then the bond was to be void. The defendant pleaded non est fac¿um i and gave notice of a set-off; and that he should offer in evidence under that plea, that, at the trial a c.ause between him and the plaintiff, before the commencement of the.present suit, at the Saratoga circuit, in which Harris was plaintiff, the said bond and the monies due thereon were necessarily drawn in question, and that the jurors in the said cause, took into consideration, in making up their verdict, and did allow and deduct from the demand of Harris, all the monies due, or now claimed by Manny on the said bond ; and further, that, the said bond was given on the condition, that Manny should procure by the first day of October, 1802, a good and sufficient deed of the said land to Harris, from the representatives of Lefferts; but that no such deed had been procured by Manny; and further, that on tjíé 28th of May, 1801, the defendant paid to the plaintiff, at Albany, the interest due on 1457. 12s. being 25 dollars and fifty cents, and that on the 26th of May, 1802, before the commencement of the suit, he tendered, and offered'to pay to the plaintiff, $25 50 cts. further interest on the said sum, which the plaintiff refused; and that on the 1st of September, 1802, the defendant tendered and offered to.pay the plaintiff the said sum of 1457. 12s. aud also $6 88 cts, interest, according to the condition of the bond, which the defendant refused to accept.</p> <p>The defendant proved, that on the 6th of May, 1802, he went to the plaintiff’s house, and was informed by the family, that the plaintiff was gone to New-Yorlc; that after waiting some time, and counting out the sum of 107. 3s. 10x7. due on the bond, he went away, finding no person ready, to receive the money. He also proved, that on the first of September, 1802, he tendered to the plaintiff, the sum of 1457. 12s.- and the interest which-the plaintiff refused, saying, the defendant should not have the land, as a Mr. Barton hadgot .it. The. defendant then offered in evidence, the récord of the former suit of Harris against Manny, and one of the jurors on-that trial as a witness, that the monies claimed by the plaintiff had been allowed in that suit. This evidence was objected to, on the part of the plaintiff, but admitted by the judge. It appeared from this recox-d, that the suit was on a bond, dated the 26th of May, 1800, from Manny.to Harris, in the penal sum of $2,500 with a condition, that if Manny should procure a' good and sufficient deed to Harris, from the representatives of Lefferts, for the lot of land above mentioned, on or before the 1st of October, 1802, provided Harris paid the sum of 1457. 12s. with interest annually, before the 1st of September, 1802, then the bond to be void, &c. Man„ ny pleaded that Harris did not pay, &c. Harris replied, t^at he Pai<i Manny one year’s interest, and tendere d him the principal with the interest due, according to the condition of the bond, which Manny refused, in the manner above stated. To this replication there was a rejoinder and issue.</p> <p>One of the jurors on the former trial, being sworn as witness, testified that the jury, in making up their verdict in that cause, allowed the present plaintiff all the money he now claims in the present suit. The verdict, in the former suit, was for $662 50 cts. for which judgment was rendered, and the-execution thereon satisfied.</p> <p>On the trial of this suit, the plaintiff proved', that his brother was his authorised agent to transact his business ; and had the custody of his papers, and the bond in question, and was at his house the day the defendant came there; but that no money was tendered to him by the defendant; and that prior to the commencement of this suit, a demand of money had been made of the defendant, who refused, alleging that the amount had been allowed to the plaintiff in the former suit. The jury found a verdict for the defendant.</p> <p>A motion was now made to set aside the verdict. 1st. Because the record of the trial in the former suit, .and the evidence of the juror, were improperly admitted. 2d. Because the tender of the interest, on the 26th of May, 1802, and the tender of the same on the second of September, 1802, were not sufficiently proved. 3d. That the subsequent demand and refusal entitled the plaintiff to recover, notwithstanding the tender.</p> <p>The point put in issue by the pleadings in the former suit was the tender. There was no pretence of a set-off, nor had the jury any right to take a set-off into consideration. In the case of Sint-v, Lucas* Lord Kenyon observed, “ that in order to make a record évidence to conclude any matter, it should appear that the matter was in issue, which should appear from the record itself; nor should evidence 1 r be admitted, that under such a record, any páiticular matter came in question.”’ Here the payment or set-off was not in issue, and the record could conclude nothing on that point. The juror, therefore, ought not to have been admitted to testify, what was taken into consideration by the jury. The only measure ■ of the damages, was the value of the lands covenanted to be conveyed. It is true that nemo debet bis vexari : but then it must ... for the same cause of action,† or the same point in issue. The tender on the 26th of May, 1802, was not made according to law. Harris should have staid at the plaintiff’s house until-sun-set,‡ but he went away about noon. A tender does not disharge thedebt.§ Besides, it ought ° * a to have been as fully proved, as on a plea of tender. The defendant should have shown not only that he was . , , , , , • then ready, but was now ready to pay the money, which should be brought into court.¶ If the money be not brought into court, the plaintiff is entitled to sign judgment.</p> <p>The measure of damages was, no doubt estimated according to the value of the land, and allowing for the money paid. The general rule, as to tender, is not questioned. Biit if it be shown that, by the plaintiff’s default, it was impossible to make the tender, the. defendant is excused. The plaintiff ought to have been at home on the day of payment.</p> <p>Where the same subject matter has been once tried, it cannot be again litigated. The bond here relates to the same subject matter. The tender is made out by the default of the plaintiff, to get rid of the penaly, or by the •finding of the jury. The remedy on the penalty of the bond is then-gone, though the debt exists, to recover which, the plaintiff should have resorted to a different action. The plea of tout temps prist with uncore prist, regards only the debt, not the penalty or forfeiture, it is only necessary to show a performance of the condition, or, what is tantamount to a performance, a tender and refusal. A tender to a bond with a penalty is in bar of the action.*</p> <p>But a more substantial ground of defence is, that the. plaintiff had already recieved what he is attempting to recover by the suit. The jury, in assessing the damages in the former suit, deducted the consideration money from the value of the land, and gave a verdict for the residue. This must be intended from the record ; and the fact is proved by the evidence of the juror. In the present action, there is a plea of set off for so much money paid to the plaintiff’s use. Now, if the jury in the former suit did make a deduction of the consideration money, it must be considered as so much money-had and received to the use of the plaintiff. If a court of equity would interfere to prevent the plaintiff from proceeding to recover this money a second time, there is no reason why this Court should allow him to recover it again in this action. In the case of Bedient v. Church,† though no set-off was pleaded, the court of errors decided that the amount of sales might, be deducted, and that the residue was the proper measure of damages.</p> <p>We are not to intend» that the jury in the former suit took into consideration what was not in issue before them, or competently proved. The plea of tender presumes, that there was no payment, for if the money was paid, why plead tender ? Tender was the only point in the pleadings. The tender did not save the penalty of the other bond; its only effect was to give the defendant a remedy on the contract for the conveyance of the land. A mere .naked tender will never destroy the remedy on the penalty of a bond. The jury, therefore, had no right to consider the payment, or to take the money into their calculation. The only rule for them was, the value of the land to be conveyed. The court cannot intend that the jury did more than they were authorised to do, by the pleadings in the cause.</p>

This was an action of ejectment, for land, in New-burgh, in the county of Orange. The cause was tried at the Orange circuit, in May, 1805,'before Mr. Justice Thompson. The lessors of the plaintiff claimed title to the premises in question, as heirs at law, and by conveyance from the heirs at law, of David Kniffen, who died in January, 1804. The plaintiff proved title, prima facie. The defendant then offered the will of David Kniffen, in evidence.

This was an action of debt on a bond. The cause was tried at the Onondaga circuit, the 1st of July, 1805, before Mr. Justice Tompkins.

This was an action for trespass against the defendant, for taking the goods and chattels of the plaintiff. Plea, not guilty. The cause was tried at the Washington cir-0,7 ° cuit, the 4th of June, 1806, before Mr. Chief Justice ixent.

. , jt His was an action or assumpsit, on a promissory note, alleged to have been made by the defendants. The note was dated the 23d of October, 1801, for the payment of $250, in 60 days. Plea non assumpsit. The cause was tried at the Washington circuit, on the 18th of June, 1806, before Mr. Chief Justice Kent.

This was an action of assumpsit, brought by the plaintiff as indorsee, of a promissory note, against the makersr The cause was tried before Mr. Justice Tompkins, at the Columbia circuit, in July, 1806. On the trial, the making of the note was proved. The note was dated the 16th oí September, 1796, and payable the 3d of October, 1798, to Booth, or,order.

'This was an action of trespass, for breaking and entering the close of the plaintiff, cutting down, taking and carrying away the wheat in the straw, which was there standing, and converting the same to his own use. The cause was tried at the Jtensselaer circuit in May, 1806, before Mr. Chief Justice Kent.

certain distillery and brewery, carried on at Cornivall, under the firm of Solomons & Co.; that differences had arisen, and were depending between the plaintiff and the defendant, concerning the accounts and final settlement of the late co-partnership of Solomons & Co. and for putting an end thereto, the plaintiff and defendant, on the This was an action on an award.

A motion was made on the part of the defendant, to set aside the inquisition, taken on the writ of inquiry in this case. The writ was executed before a deputy slier-» iff in the city of Albany, and the damages assessed at $1400. The grounds of application were, for irregularity ¡ and for excessive damages; a motion was also made that an inquest should be taken before one of the judges of this court.

<p>This was an action of assumpsit. The intestate and defendant had submitted their accounts and controversies to five arbitrators who awarded $1 50 cts. in favour of the intestate, which was paid to him by the defendant, mi • -i t • A-, a/» i * I he present suit was brought to recover frlyo 1 ct. being the amount of a mistake made by the arbitrators in the subtraction of figures in making up the award. To . , „ . . . „ , , prove the mistake, two of the arbitrators were called and sworn upon the trial. The judge ruled .that the proof ivas inadmissible, and a verdict was accordingly taken for ° ■ the defendant.</p> <p>The case was submitted without argument, and the only question was as to the competency of the proof.</p>

<p>This was an action of ejectment, brought to recover land in Vernon, in the county of Ontario. The cause was tried before Mr. Justice Livingston, at the Ontario circuit, the 20th of June, 1806. The lessor of the plain- ^ was ^ mortgagee, and the defendant the mortgagor, Gf j}je premises in question, who had continued in pos-1 , . session since the mortgage was given. It was insisted, on the part of the defendant, that he was entitled to no-to TT¡t, and some evidence of a notice was offered ; but a verdict was taken for the plaintiff, subject to the opinion of the court on the question, whether the defendant was entitled to a notice from the plaintiff, to quit the premises previous to the action.</p> <p>The case was submitted to the court without argument.</p>

This was an action of ejectment, for lot number 17, in the, town of Sem/pronius, in the county of Cayuga, and was tried at the circuit in that county, before Mr. Justice TompJdns, the 28th June, 1805. suPPort of his title, the plaintiff produced an exemplification ofthe letters patent from the people of the state ofNew-York, forthe premises in question to Ramson, one ofthe lessors ofthe plaintiff, dated the 8th July, 1790, and a deed from Ratnson to Roe, the other lessor…

<p>This was an action of ejectment, to recover part of lot No. 57, in the town of Scipio, in the county of Cayuga. The cause was tried at the Cayuga circuit, before Mr. Justice Livingston, on the 9th of June, 1806.</p> <p>The plaintiff produced, and read in evidence an exemplification of the letters patent, for the land in question, dated the 13th of September, 1798, to David Miller, who was a soldier, serving in the New-York line of the American army, during the war with Great Britain, and died in 1778. Peter Miller, one of the lessors of the plaintiff, was the eldest brother of David Miller. The plaintiff then offered in evidence -of a deed, dated the 24th of October, 1801, from Peter Miller to Philip Hoaghtiling, and another deed from Hoaghtiling to James Knapp, for one third part of the premises in question. The reading of these deeds was objected to on the part of the defendant, who offered in evidence, a deed of the premises, from Z ocharía Tomlinson to Walter Wood, dated the 2d of December, 1796, and another deed from Walter Wood to Albert Crouse, dated 29th October, 1796, a'deed from Crouse to Elias Avery, dated the 26th July, 1803, and a deed from Avery to the defendant in possession, for the consideration of $2985, dated the 22d November, 1804; all which deeds were duly acknowledged and recorded. The defendant further offered to prove, that he was in the actual possession of the land in question, at the time of the date of the deed from Philip Hoaghtiling to James Knapp, and that Philip Miller, the father of David Miller, died the 5th of April, 1803, leaving issue, five sons, the said Peter Miller, and John, Samuel Philip, and Nicholas, and three daughters who were married. It was contended, on the part of the plaintiff, that the fee of the land, on the 24th of October, 1801, at the date of the deed from Peter Miller to Philip Hoaghtiling was vested in the people of the state of New-York, and that Crouse, and those under whom he claimcd, could not have held possession of the land long enough to have it considered as adverse to the title of the peopie. — “This objection, as well as the deeds offered on the part of the defendant, were overruled by the judge, and the deeds' offered on the part of the plaintiff were read in evidence. It was also proved, that Philip Hoaghtiling had died since the execution of the deed, leaving issue, the other lessors of the plaintiff. • A verdict was, theret upon found for the plaintiff.</p> <p>A motion was made to set aside the verdict, and the same was submitted to the court, without argument, on a case containing the facts above stated.</p>

This was an action of ejectment, to recover land in Westfield, in the county of Washington. The cause was tried on the 16th of June, 1806, at the circuit, held in that county, before Mr. Chief Justice Kent.

This was an action of debt, on a judgment rendered in the mayor’s court of the city of Ntw-York for $515- and 16 cts. in a suit on a bail bond. Judgment by default was entered againt Tremper, one of the defendants.— Doll, the other defendant, pleaded nul tiel record. In the original suit in the mayor’s court Doll alone was the defendant, and Tremper his bail. A writ was after-wards issued on the bail bond, agaiust Doll and Tremper jointly.

This was an action on a policy of insurance, on the schooner SuJcey and Polly, on a voyage “from New-Or-jeans ¡;0 Cape Nichola Mole, and from thence to one other port, say Port Republican, Cape Francois, or the island of St. Thomas, against sea-risks only.” The policy was in t^ie usua' printed form. The plaintiff declared for a total loss by sea-riskr. The interest, loss, and abandonment were proved.

<p>To a plea of a discharge under the., insolvent act the plaintiff replied, setting forth all the grounds on which the discharge ismade void by the act, in the On words of the act. demurrer the replica** ion was held to be ba¡d» The plaintiff must specify the particular frairl on which he means to reset aside^tli **0 discharge.-</p>

. # This was an action on a policy of insurance, on the ship Mary, on a voyage from Charleston to Glasgow, and ^rom thence to Philadelphia. The cause was tried at the New-Yorlc sittings, on the 13th of June, 1806, before Mr. . J UStlCG 1 hompsOU.

The defendant obtained a'n order from a judge, at his chambers, for the plaintiff to show cause why the defendant should not be discharged on filing common bail. — - The plaintiff resided at Havanna.

The? judgment in this cause having been arrested,* at the last term, Benson now suggested that the plaintiff had elected to bring a writ of error, and it became necessary for the court to render a judgment, as no writ of error would lie on an order arresting judgment. F°r that purpose, he prayed, that the rule of the last term might be vacated, and a judgment entered for the defendants, for the insufficiency of the declaration.

<p>Woodworth, attorney-general, in behalf of the defendants, moved that the default and judgment entered against the bail in this cause, should be set aside for irregularity, and that an exoneretur. be entered on the bail-piece. The same motion was made at the last term, when the court directed the proceedings to stay, and the application to be renewed at this term.</p> <p>The capias ad respondendum, issued against the bail, was returnable on the 17th May, the last day of that term ; and on the first day of August, and previous to the commencement of the last term, the principal was duly surrendered by his bail, into the custody of the sheriff of the city and county of New- York ; and the rule to show cause why an exoneretur should not be entered on the bail-piece, before the Recorder, on the 6th day of August, was duly served on the plaintiff’s attorney; but the defendant’s attorney not attending at the day, the rule was not granted.</p> <p>that it was now the settled practice, that the bail had eight days, in full term, after the return of the capias against them, to surrender their principal ; that the surrender in this case, having been made before the expiration of the eight days, the bail were entitléd to be exonerated.</p> <p>read affidavits, by which it appeared that Fitzgerald, having been arrested in several suits, put in bail, which was excepted to by the plaintiffs as insufficient; that Fitzgerald then agreed to deposit $10,000 with Forbes, who consented to become additional bail. An agreement was then entered into between Forbes and the attorney of the plaintiff, by which it was stipulated that Forbes was in no event to be liable for any damages or costs beyond the amount of $10,000 to be applied by the attorney of the plaintiff rateably towards the payment of the judgments to be recovered in the several suits. It appeared also, that Forbes still retained the sum of $10,000 in his hands, and that Fitzgerald had voluntarily surrendered himself in discharge of his bail. It was contended, that the rule of practice, allowing a surrender after the return of the ca. sa. was a privilege of the bail, not of the principal. Here the bail did not surrender the principal, but the latter voluntarily surrendered himself. On the return of the ca. sa. against the principal, the bail are legally fixed.* Allowing the bail to surrender, afterwards, is matter of indulgence and favour, and in the sound discretion of the court. It is intended for the relief of bail, and the court, will look into the circumstances of the case to discover whether the bail will suffer. If bail be indemnified by their principal, there is no reason for the court to interfere;† for they can suffer no injury. Here the money was deposited with the bail, for the express purpose of indemnifying them in this suit.</p> <p>In an application of this nature, the merits of the original suit are not to be taken into consideration. The rule of practice in regard to hail is, that where the plaintiff proceeds by an action of debt on the recognizance, the bail have eight entire days in full term, next after the return of the process against them, in which-to make a surrender.* The object of bail is not to indemnify the plaintiff, but merely for the forthcoming of the body of the defendant. The condition of the recognizance is, that the defendant shall pay the condemnation money, or surrender himself into the custody of the sheriff. If the condition be fulfilled by a surrender, there is no ground for an action on the recognizance, and the court must relieve. The practice of relieving, within the eight days next after the return of the process against bail, has been so long established that it has now grown into a matter of right; though strictly speaking, it is sai¿ to be matter of fanout. A favour which the court cannot, consistently or justly refuse, is tantamount to aright. In the eases cited on the other side, the bail were, from peculiar circumstances, unable to surrender the principal; their application was, therefore, addressed to the indulgence and favour of the court. Not a case can be found, where bail have been denied relief, when the body of the defendant had been surrendered within the time allowed by the rules of the court.</p> <p>Where the body of the principal is surrendered in due time, the court caunot go aside to inquire as to any indemnity. The only question is, has the condition of the recognizance been fulfilled, .according to the established practice of the court ?</p> <p>The notion ,to set aside the default and subsequent judgment, is substantially an application for the relief of the bail : and if the court order an exoneretur, the other will follow of course.</p>

Slosson moved to set aside the default and subsequent proceedings in this cause. The bill was served on the defendant the 12th day of September, and on the same day he obtained a judge’s order for enlarging the time' . . .. tor pleading. A written notice of the order was duly served on the agent of the plaintiff’s attorney.

The defendant was convicted at the last Oyer and Terminer, in Dutchess county, of 'arson, in burning the county court-house and gaol. It was described in the indictment, as the dwelling-house of John Forbes, who was the gaoler, and who, by permission of the sheriff lived with his family in a part of that building, and under the roof with the court-house and gaol. A motion was made, in arrest of judgment, on the ground that this was not the dwelling-house of Forbes.

t # On the return to- a certiorari to the general sessions of the.peace in Orange county, the following facts appeared, A pauper was removed from Bloomingrove to the town of Southfield, by an order of removal, under the hands and J * , ' _ seals or two justices of the peace, dated 20th of June, 1805. On an appeal from this order, it was confirmed ^y the general sessions of the peace, in Orange county.

<p>If it appear that important questions of law • ill arise mi the execution of a writ of inquiry of damages in a* action for a li** bel, the court will order it ta be executed by a judge at a circuit.</p>

On an appeal from the taxation of the costs in this cause, by the clerk, Pendleton, for the defendants, contended, that the expenses of certain commissions taken out to examine witnesses, on the part of the plaintiff, and not réturned, ought not to be allowed.

This was an action on a policy of insurance on the brigantine Elgalgo, from Wilmington, N. C. to Guadalo-upe or St. Thomas. The cause ivas tried at the New-York sittings, the 24th April, 1806, before Mr. Justice Spencer. The jury found a verdict for the plaintiff, sub- . » . . « , it . , . ject to the opinion of the court, whether the plaintiff was entitled to recover for a total or a partial loss.

This was an action for slander. ■ The declaration contained seven counts. The words spoken by the defendant, charged the wite of the plaintiff with adultery. The words were variously laid in the several counts; but no special damages were alleged. On a motion in arrest of judgment, the only question was, whether the words spoken by the defendant, and amounting to a charge of adultery, were in themselves actionable.

This was an action to recover, dower, in lands, in the county of Westchester. The cause was tried before Mr. Justice Livingston, at the circuit in Westchester, the 23d May, 1805. The demandant’s count was in the usual ■form. The defendant pleaded that the husband of the demandant was never seized of such an estate, as he could endow the demandant of, on the day of their marriage, nor at any time since.

This was an action on a policy of insurance, on the cargo of the brig Hunter, on a voyage at and from Middletown, in Connecticut, to Martinique, and at and from thence to New-York, with liberty to touch at two other ports in the West-Indies, against sea-risks only — cargo out and proceeds home valued at 1,600 dollars.

This was an action on a policy of Insurance on the brig IIwriter, on a voyage “ át and from New-Haven to Middhtown ; at and from thence to Martinique ; and at and from thence to New-Yorlc” ■ The vessel was valued at the sum insured. The policy contained a printed clause, that “ in case of loss, the insured were to abate two per cent, and the loss to be paid thirty days after proof thereof.” The declaration contained three counts on the policy.

On a former argument of this cause, in May Term last, the Court were of opinion that the plaintiffs were not entitled to recover for a total loss, and-awarded a new trial..

<p>M covenanted to provide ves* seis and funds for certain mercantile expeditions, and B covenanted to select the goods, or send samples it’ necessary; and it was agreed between then), that if the first expeditionwas notsbntoutby M in 1 month after the date of the contract, it was to be ipso facto void; and the party in default, to pay all costs, da¿ mages, he, In an action of covenant, on this agreement, brought by B‘ against M, the declaration alleged, that the de~ fendantdid not provide vessels and funds, &c. but made default, &tc. The defendant pleadedamong other pleas, that the plain* tiff did not, within one month from the date of-the contract, choose or designate the goods requisite for the expedition, he. and that after the expiration month, and before he had chosen or desighated-the goods, the plaintiff declared the contract void, so that the expedition could not proceed. On demurrer to these pleas, it was held, that the covenants were independant, and that 3 was not bound to select the goods before the vessel was provided by M, and that B was entitled to damages for the nonperformance of the contract on the part of M*</p>

This was an action of assumpsit on an open policy of insurance, on the cargo of the schooner Alice, from Washington in North-Caro lina, to New-Yorlc. The declaration was of the term of Nov., 1803, and for a total loss by the perils of the sea. There was a-count for money had and received to the use of the plaintiff. Plea, non-asumpsit, and notice of a set-off.

This was an action of assumpsit for money had and received to the use of the plaintiff. The cause was tried before Mr. Justice Spencer at the New- York sittings, the 16th April, 1806. On the 30th December, 1797, the p]ajnt¡¿fs underwrote a policy of insurance, effected in the name of the defendants, “ for themselves, or whom-a verdict was found in their favour in 1799; and in 1801 a final judgment was .given on the verdict.

This cause came before the' court, on a writ of error, from the Mayor’s Court, of the city of New-Yorlc. From the record it appeared that Robert Stewart and Hamilton Stewart were partners in trade, and that the defendant below on the second--day of December, 1803, made a • J .■ promissory note, payable to them or to their order, 45 days after date, for 200 dollars, whicli they indorsed to Winton, the intestate. .

<p>This was an action of trespass. The cause was tried at the Richmond Circuit, the first day of June, 1804,'be-fore Justice Livingston. o</p> <p>The declaration contained two counts. The defen- . . dants pleaded the general issue, and gave notice, that they should give in evidence under that plea, 1st. A patent frolli Queen Anne to Lancaster Symcs, dated the 27th ^ ^ October, 1708, for all the vacant and unappropriated lands upon Staten-Island, together with the meadows, marshes, fishing, fowling, &c. &c. 2d. A patent from William and Mary, to Thomas Carhart, dated the 16tlf April, 1692, for one hundred and sixty-five acres of land, on the S. side of the Island, bounded, &c.andon thesoutheast side by the Bay. 3d. A deed from James Smith to the defendants and others, dated the 22d March, 1771. 4th. A. deed from Fountain and II. Harrison, to the inhabitants of Staten-Island, and their successors, of then-interests in two certain .fisheries, opposite the land , of John Jacobson, dated the 12th April, 1802. 5th. A return of a certain road running from the high road, at the house of Isaac Johnson, and so along several places to Sand-Bay, registered the 11th October, 1708. And 6th. That the defendants would insist and give in evidence that the locus in quo was, and had been for sixty years past used by the inhabitants of Siaten Island as a free and common fishery; and that it had for that time been a public road and landing place for the public.</p> <p>On the trial, one M‘Clean, a witness for the plaintiff, testified, that he had lived on and near the locus in quo, for 17 or 18 years; that it consists of a beach' adjoining Hudson-River, near the Harrows. The premises in question, including the beach, and the right of fishing, were hired by him about 16 or 17 years ago, of C. Vandewinter, and A. Jacobson, through whom the plaintiff derived title. All who fished there paid a consideration to M‘ Clean, for the privilege of fishing and drawing their seines, during thirteen years; and two of the defendants did the same. The first lease to 31‘Clean was for three years, and the second for the residue of the time he had occupied. During the last three years he hired theupland of the plaintiff, but not the beach, or a right in the fishing. By an agreement with the plaintiff, he was to pay to him one fourth of the fish caught for the privilege of fishing. Four or five years ago the plaintiff built a house under the bank, on the road near the bank, which M‘,Clean occupied as a tavern ; and before 1802, the plaintiff had put up advertisements, foi-bidding persons to fish there without license. In 1802 and 1803, the defendants built fishing huts on the premises above high-water mark, and fished there during the season. This witness was objected to on the ground of interest, but the objection was overruled by the judge.</p> <p>The defendants then offered the patent under which the plaintiff claimed, dated in 1691, to show that its boundaries did not include the locus in quo, which was admitted and read in evidence. The jury had a view of the premises. The plaintiff then produced in evidence a deed from Catharine Vandewinter and Anne Jacobson, dated the 28th August, 1799, by which the premises, as far as low-water mark, were conveyed to him. A motion was then made by the defendants’ counsel for a non-suit, which the Judge overruled. The defendants then produced the record of a road laid out in 1707, which they contended lay between the premises granted by the patent, and the water. They then claimed a right to fish on the premises, in common with all the inhabitants of Staten Island, and they offered one Anoto, .as a witness^ to prove that the locus in quo liad been for, many years used in common as a fishery by the inhabitants of the island; and that the road, as laid out in 1707, had been used as a common highway, without interruption, time out of mind. It was objected that the witness, being an inhabitant of the island, was incompetent, on the ground of interest, and he was rejected by the judge. The witness then offered to the plaintiff a release of all his right, which the plaintiff refused to accept. He then offered a release to an inhabitant ofthe island, for the use of all the others, except himself. But the judge was of opinion that he was still an incompetent witness. Another witness for the defendants testified, that many persons had fished indiscriminately on the premises, daring the American war, and since, and that there was a road along the. bank. The plaintiff further proved that the fishery had been assessed as the property of the Vandewinters, who paid taxes for it. One Gafritson, an inhabitant ofthe island, was offered as a witness, and his release was tendered; but the judge rejected him as incompetent. An agreement, dated 6th April, 1787, and another in 1795, signed by several persons, acknowledging the right of the plaintiff to the fishery, and agreeing to pay him for the privilege of fishing on the premises, were read in evidence on the part of the plaintiff. The judge charged the jury, that they ought to find for the plaintiff, and that in assessing the damages, they should take into consideration, the loss the plaintiff sustained in consequence of the interference of the defendants in taking the fish. The jury accordingly found a verdict for the plaintiff, for four hundred dollars damages.</p> <p>A motion was made, on the part of the defendants, to set aside the verdict, and for a new tria].</p> <p>1. M'Clean, by his lease from the plaintiff, was entitled to a portion of the fish caught, and was, therefore, so far interested as to render him an incompetent witness. If he had not a direct interest in this cause, yet he would be benefitted by the event. If a witness claim under the same title, or under the same right as the party, or if the decision of the cause may prevent a suit against him, he cannot be a witness.* “2. To entitle the plaintiff to recover, it was necessary to Show an exclusive possession. M* Clean's evidence goes to prove a possession in common with others; and tenants in common must join in trespass. 3. But the most important point relates to the competency of Anoiu and Gar-ritson, who were offered as witnesses and rejected. There have been a great variety of opinions, and some confusion of cases on this subject. The settled opinion in England seems to be, that no objection can be made to the competency of a witness, on the ground of interest, unless he be directly interested in the event of the suit, or can avail himself of the verdict in the cause on some future occasion, in support of his interest.† !- The witnesses had no direct interest in the cause, nor could the verdict be given in evidence, in an action brought by them as tenants in common. There is a difference between a witness, an inhabitant of a town, being 'qalled to support a public right, which does not affect his particular interest, and where it concerns his private interest.* When a witness is competent to answer the question put to him, he cannot be rejected altogether.† Anow, was ■a competent witness to prove that the locus in quo was a highway.‡ In many cases, a witness who is interested may be received from necessity. The inhabitants of the-town are the only persons who can prove a highway. Again, if the party who tenders a witness, does all that is in his power to get rid of any objection to his testimony, such witness ought to be received.§ 4. There was an ambiguity in the patent of 1691, and the construction of it, as to the true bounds, ought to have.been left to the jury. 5. The judge’s charge to the jury was incorrect. The plaintiff was not entitled to damages for the fish which were not caught within the premises ; still if they became his property when brought upon his land, he should have brought his action de bonis aspor tails, for carrying them away, otherwise he cannot be allowed to go into evidence of the taking of goods not mentioned in the declaration.**</p> <p>1. Whether M’Cleari^was to be bencfitted or not depended on his taking fish; but, as an inhabitant of the island, he was interested in establishing a free fishery against the right claimed by the defendant. An interest so small, if opposed to the party in whose favor he is produced, would not render the witnsss incompetent. 2. It is sufficient in an action of trespass, to show a possession ip the plaintiff. The plaintiff proved a possession of the beach to high-water mark. AP-Clean's evidence shows an exclusive possession, and from the testimony on the other side, it appears to have been ■coupled with the right to fish. 3. Anow was interested in the event of the suit, as well as in the question put to him, for it related to the question of a free or common fishery, in the advantages of which, as one of the; inhabitants of the island, be would participate. Persons claiming under a common right cannot be witnesses for each other. One commoner cannot be evidence for another; as the record would be evidence in a subsequent action, and the witness must swear in favour of a title iu himself.* The witness would not remove the objection, for a release to an inhabitant could have no operation. His interest was not that of a particular individual, hutas an inhabitant of Staten-Island. It depended on the residence ofthe person, and was not tfansferrable. m • • '•■ii Jbut it is said, that he was a competent witness to prove, that the locus in quo was a highway. He was called merely to show that a certain public road had been laid out, and which was above fifty yards distant from- the place where the trespass was committed. Any evidence, therefore, as to the existence of such a highway, would have been irrelevant. 4. The construction of a patent is matter of Jaw; but the plaintiff rested his title, not on the patent only, but on a possession more extensive than the grant in 1891. It does not appear, however, from the case, but that the judge did leave the construction to the jury. 5. The charge to the jury was correct; it was merely that they were to consider what damages the plaintiff had sustained by the interference of the defendants with his right.</p>

This was an action of covenant. The plaintiff declared on a deed, or sealed instrument, executed by the defendant, by which he covenanted to pay to the plaintiff the sum of 150 dollars, Ac.

. This was an action of ejectment, for lands in Orange county. The cause was tried at the Orange circuit, on ^le 4th June, 1806, before Mr. Justice Tompkins. The plaintiff, in right of his wife, claimed -an undivi- . _ f . ded part of lot No. 33, m a tract of land called the angle Minisinckpatent, being the premises in question, un(]er Henry Van Ball.

The return to certiorari in this, cause stated, that Mulliner in the court below, declared against Felter, for that his horse had killed the plaintiff’s mare, through the negligence of the defendant s servant. The defendant pleaded a former judgmént in his favour, in the same cause of action, before another justice.

EMOTT moved for a rule requiring the justice tp amend; his return to the certiorari in this cause. He read affidavits stating a number of facts to which the plaintiffs in error wished the justice to answer, but which were no.t stated in the affidavit on which the certiorari was allowed.

moved in arrest of judgment in this cause, on the ground, that the plea of nil debet to an action of debt on a judgment was a nullity. He contended, that by going to trial, the defendant had not affirmed the plea; that -mil tiel record was the only general issue, and the statute expressly required the general issue to be pleaded. The statute allowing special matter to be given in evidence under the general issue, was for the purpose of avoiding special pleading.

Woodworth, attorney-general, moved for leave to file an information in the nature of a quo warranto against Siveeting, acting supervisor of the town of Manlius, in the county of Onondago, He read several affidavits, from which it appeared, that at the annual town-meeting of the freeholders and inhabitants of the town of Manlius, in the county of Onondago, on thefirst Tuesday of April last, Timothy Teel was elected by a majority of the ballots given by the freeholders, &c. a…

This cause was brought before this court, by a writ of error, from the court of common pleas in the eounty of Ulster. now moved to amend the record below by suggesting thereon the death of Van Gaasbeck, one of the defendants below.— One of the errors assigned was, that this defendant had died before the interlocutory judgment had been entered. He cited 5 Term, 577. Coleman's Cases, 41. 61.

moved for an attachment against the defendant, forirot performing an award pursuant to the submission, which had been made a rule of the court. objected that the notice of the motion had been given for the first Wednesday in term, and not for the first day, or a day on which non-enumerated motions were to be heard. stating an excuse for not giving the notice for a different day.

<p>This was a special action on the case brought by the plaintiff', to recover damages of the defendant for overflowing the lands of the plaintiff, in consequence of the defendant’s erecting a dam across the Oilerlcill, in the town of WallMU, in Oranxe county. The defendant pleaded the general issue, but'by an agreement with the plaintiff’s attorney, he gave in evidence a right by prescription to overflow the lands mentioned in the plaintiff’s declaration, at his pleasure.’ The jury found a verdict for the plaintiff, for fifteen dollars damages, and six cents costs*</p> <p>It was submitted to the court, whether the title to land carne in question, so as to entitle the plain tiff to full costs under the statute.</p>

This was an action of assumpsit, tried at the circuit in Montgomery county, the 30th September, 1806, before Mr. Chief Justice Kent. The plaintiff declared on a promissory note, dated the I3th May, 1803, made by the defendant, and payable to the plaintiff nine months after date. The note had been indorsed by the plaintiff, and delivered to one Smith as security for a debt due to him from the defendant; and the plaintiff, as indorser, paid the note to Smith.

Weston, moved to set aside the report of the referees in this cause, on the ground that the referees met and decided the cause after hearing the parties, in Saratoga county, where the referees lived, instead of Albany county, where the venue in the action was laid. The defendant lived in Washington county, and nearer the place where the referees met, than the county of Albany.

FROM the return to the certiorari in this cause, it appeared that the plaintiff below brought his action for a certain quantity of lead delivered according toa written order addresséd to the plaintiff below, and signed by the r • T , defendant, as follows, “ Sir, please to let Mr. E. Knight have that lead, and I will be accountable for the same.” On the order was indorsed a receipt by Knight, that he had received “twenty-three pounds of white lead, on the order at one…

moved to set aside the wr't ail(^ subsequent proceedings in this cause, for irregularity. The writ was issued in May last, tested the 12th day of May, 1808, and returnable on the 17th day of May next. The defendants indorsed their appearance. It was contended that as the writ was returnable in May, 1807, it was absolutely void. prayed leave to amend the writ.

moved for a rule, that the defendants show cause, by the next term, why an information in the nature of a quo warranto, should not be filed against them. He read affidavits, stating, that the road had been opened through the land of the complainants, and used, without any, offer having been made to them to agree, upon the compensation, and without having the damages ascertained according to law.

The error assigned on the return to the certiorari in this cause was, that the defendant below was an infant, and appeared by attorney, not by guardian.

In error on certiorari. After the return ofthe process, and the parties had appeared and pleaded in the court below, the defendant obtained an adjournment of the cause for three months, at the hour of two, on a day certain. At 9 o’clock in the afternoon of that day, the parties were called, and the plaintiff appeared, but the defendant made default. The justice then adjourned the cause to the next day, when he gave judgment for the plaintiff below.

■ FROM the return to the certiorari in this cause, it appeared that the plaintiff in the court below declared against the defendant below, upon a promise made to him by the defendant, who was a constable, that if the plaintiff, against whom he had several executions issued from a justice’s court, would deliver property to the defendant, as security for the payment of the executions, the defendant would wait thirty days before he sold the property; but the defendant, in…

' It appeared from the return to the certiorari in this cause, that the note on which the suit was brought in court below, was given for a gaming bet relative to a horse-race. The testimony on both sides went to establish this fact, but the jury found a verdict for the plaintiff. contended that as it appeared from the evidence on both sides, that the consideration of the note was illegal and void, the judgment below was erroneous, and ought to be reversed.

moved, that the rule for a commission, obtained by the defendant in May term, 1805, for the examination of certain witnesses in France, should be vacated, the same ' not having been returned, and that the plaintiff have leave to proceed to trial at the next sittings in NewYorTc. read an affidavit, stating that the . , , , , action was brought to recover money alleged to be due on a certain contract ¿nade in France, in February, 1791, both parties being citizens of that…

<p>If a porlufo b^l in this tl°e a creditor reddrlf on^" contract deira 'a cobny of Portagal, and subject to its</p> <p>-*aws>t,ie court will not discharge hiai0?his common ap~ order arfes-oneretur to be entered pn the bail piece, tj'oog'hit f shown (hat by the laws of body1 of’the0 debtor could ”d, either b&-íor,e or aft?r judgment, & that his pro-was^iaMef</p>

This was an action on a promissory note, dated at Calcutta, the 23d November, 1797, by the defendant to plaintiff, a native of India, and inhabitant of Calcutta, for four thousand and forty rupees, payable twelve months after date, with interest, at the rate of twenty per cent, per annum. The defendant pleaded non assumpsit and non assumpsit infra sex amos.

This cause came before the court on a writ of error from the court of common pleas of Orange county. The defendant in error brought his action against the plaintiff in error, in the court below, for a malicious prosecution.

This was an action on the case to recover the amount of a promissory note paid by the plaintiff. Held: when it became due* When the note was due, Atkinson delivered it to the. defendant, who is a public notary, and requested him to demand payment °f the note of the maker, and, in case of non-payment, to it, so as to charge the several indorsers. Payment was accordingly demanded by the defendant, and . ° , ^ , was refused.

<p>T. A. Emmet, in behalf of the plaintiff, moved for leave to amend the declaration in this cause, by striking out all that part contained between the words, “ in custody, &c.” and the words “ damage in three thousand dollars,” and inserting instead thereof, a new count, or if such count was not thought proper, to add two other . D r 1 COUntS-</p> <p>From the affidavits read on the part of the defendant, 1 7 it appeared that a suit was commenced in March, 1802, * 1 _ by the plaintiff against the defendant, and was brought onto trial in January, 1803, and evidence given to the jury on both sides; but the plaintiff, when the jury were about to give their verdict, suffered himself to be non-suited. ' The present suit was instituted for the same cause of action, in May term, 1805. The cause had been four several times noticed for trial by the plaintiff. Emmet cited 3 Levins, 347. Fitzgihbon, 193. Barna-dision, 408. 4 Burrow, 2,447. Style's Practical Regis•-ter, 46. 7 Mod. 156.</p> <p>cited 2 Term, 708. 8 Term, 30 W* Blades. 920.</p>

This was an action of covenant. By articles of agreement entered into between the parties, the plaintiff for the consideration therein after mentioned, covenanted to execute and deliver to the defendant a good and sufficient deed for eighty-four acres of land, in Pittstown in the county of Rensselaer, on the first day of May, 1806.

On the return to the certiorari in this cause, it appeared that the plaintiff in the court below, declared for work and labour,.in burning 300 bushels of limé. The defen- , , , ,11 , , dant below pleaded non assumpsit,- and gave notice, that he should prove that the plaintiff had before sued him for 1 1 the same matter, and recovered.

This was an action of assumpsit. The declaration contained three counts ; 1st. For money paid, laid out and expended by the plaintiff for the use of O. Barber, O. Goodrich, A. Hosford. A. Hosford, jun. and G. W. Bar-her, in the life-time of the deceased partners. 2d. For money had and received by the same persons to the use of the plaintiff. 3d. For money lent and advanced.

This was an action of ejectment, for a lot of land in Whitestoivn. The cause was tried before Mr. Justice Spencer, at the Oneida. circuit, the JOth June, 1806, when a verdict was taken for the plaintiff, subject to the opinion of the court on a case, in which tl^e following facts were stated : • Samuel Rust, (under whom both parties claim) by his deed, dated the 12th June, 1795, conveyed to the plaintiff, fifty acres of land, including the premises in question.

This was an action of trespass. The plaintiffs declared that tfie defendant, on the 1st of June, 1804, at Ho-sick, with force and arms, did tie and fasten certain boards and billets of wood to the tail of a bay mare, the property of the testator, in his life-time, and of the value of one huudred dollars, by means whereof the mare died, &c. The defendant pleaded a former recovery in the court of common pleas, of the county of Rensselaer, by the testator himself, for the same…

This was an action of ejectment for land, in the town of Rochester, in the county of Ulster. The cause was tried before Mr. Justice Tompkins, at the Ulster circuit, the 18th of June, 1806. At the trial, the plaintiff produced a deed from Leonard Cole to Josaphat Dubois, dated the 30th of October, 1751, for certain lands therein described in fee.

<p>A residing1 in Rhode Island, mlssor^note dated in Massachusetts, to b, residing in ^ích be'pro mised to pay !n™ertahiUaclS atnioe shillings per acre. Aaftar-charge under act of the removed into Yo^Bdied* and A admitted to his re-presentares t!iat he could the land, and sett™ the note. In an ac-by'timad?*11 “j>“«tra(°rs A formoney len* a°<l «*■ vanced to him, and mo-ouf, &c!lti\he life time of the intestate, was held, ^^admissa-ble evidence under the money counts, and connected with the acknowledgment, sufficient evidence of the considcration; that the discharge under the act of the legislature of Rhode-Island,was no bar to an action brought here on a note made in the state of Massachusetts.</p>

This was an action of. debt,, brought to recover a legacy of seven hundred and-fifty dollars, bequeathed by the testator to his daughter Greetje, one of the plaintiffs. The declaration stated, that the widow of the testator died in February, 1804, and that there was' personal estate sufficient to discharge the legacy. The defendants pleaded nil debet.

This was an action of ejectment for lands, in the conn? ty of Otsego. The cause was tried before Mr. Justice Spencer, at the Otsego circuit, the 3d June, 1806.

These were actions on two policies of insurance, one * 3 on the schooner Mariner, the other on her cargo, on a „ , . ° voyage, “at and… Held: liable. Though the vessel might have sailed direct from Lisbon to Safi, in the first instance, yet, after she was forced back to the former place, she must be considered as sailing from a port of necessity to the ultimate port, dropping the intermediate port of Maderia,. precisely as, in the present case, the Mariner proceeded from…

<p>This was an action of covenant. The plaintiff, in consideration of 1,555 dollars, covenanted to build a house for the defendant, in the manner described in the articles of agreement, dated the 5th February, 3 805. The house was to be completed by the first day of November, 1805. The defendant, on his part, covenanted to pay the plaintiff 750 dollars, on or before the first day of May, then next, and the residue of the said sum of 1,555 dollars, as soon as the house should be completed. The declaration contained two counts. The first count set forth the articles of agreement, and averred a performanee of them on the part of the plaintiff. The second count, after stating the agreement, averred a performance as to part of the building before the first of November, 1805, and a completion of the whole on the first day of December, 1805, and alleged, that the whole would have been completed in the manner agreed, and at the time stipulated, but that divers alterations in the plan and execution of the work were made, by the request and at the direction of the defendant, in consequence of which, and without any neglect or default of the plaintiff, he was hindered and prevented from finishing the said building, according to the agreement at the time fixed, <fcc.</p> <p>To the first count the defendant pleaded non est factum. To the second count there was a demurrer, and joinder in demurrer. . .</p> <p>He cited 3 Term, 590. 1 Saunders, 320, Pordage v. Cole, and the note of sergeant Williams, n. 4. in which the cases relative to dependent and independent covenants are collected.</p> <p>cited 2 H. Blk. 389, Terry v. Duntze. 1 Hen. Bile. 275. n.</p>

. , . , , , . I His was an action of assumpsit, brought by tne platn-tiffs, assi The cause was tried before Mr. Justice Livingston, at the New York sittings, the 27th December. 1800.

This was an action of assumpsit., against the defendant, Cooper, and one Thomas Van Bramer, for one thousand dollars Tent by the intestate, and for which Cooper and the other defendant gave an accountable receipt for the re-payment of the money in one year.

This was an action of trover for a quantity of rum.— Ulea not guilty.

<p>,In an act*011 brought a-gainsttliepre. tors andcom-Pany °f the landLockNa-vigation, by the owner of land through whlcl*acanal was cut, the the declara-contalnedbut ?ne counl‘>al-leged,that the plaintiff’slatd the camdThad been over-damaged'by reason of the through*^©5 of^th^canal* in donse-neglect of the defendants, & quenceofthe by thexansa’ of the natural drains & water courses for carrying off the water. After a verdict for the plaintiff, it was held, that the defendants having proceeded according to the directions of the act of the legislature, in opening the canals, were not liable for any damages occasioned by cutting the canal through the plaintiff’s land, but only for such damage as resulted from their neglect in keeping the canals and embankments in repair; after verdict, the court will intend, that the jury gave damages only for the actionable part of the declaration.</p>

This was an action of debt brought against the defendants, as heirs and devisees of Henry V. Fonda, deceased. Jellis Fonda, the father of Henry V. Fonda, deceased, by his last will devised certain lands to his wife for life, and- after her decease, to his son, the said Henry V. Fonda, to hold to him and his heirs and assigns for ever, and died in 1791, seized of the lands so devised.

<p>The omission umtelTibe'act for t,ic relief &c. to in-’ sertmthe account of his estate, set petition!* certain debts due to him, will not prevent his discharge, if the omission appear to have arisen from misapprehension, and not from any fraudulent intent; but the court will permit the debts to be inserted in the account, when thc.debtor is brought up for his discharge.</p>

On a former day in this term, Slosson, in behalf of the plaintiff, in the cause of Lewis v. Farmar, moved for a rule against the defendants to show cause why an attachment should not issue against the present defendants, for a contempt.

RlKER moved to discharge the defendant in this cause, on filing common bail,' or to reduce the sum for which he had been held to bail on his arrest. The action brought against the defendant was for a libel. ■ The publication was admitted in the affidavit of the defendant.

This was an action of trover. The cause was noticed for trial at the sittings after last November term, when tt*e did not bring it on ; but stipulated to try it at the April sittings. At the request of his counsel, the . trial was then put on. now moved to amend the de- ... . duration, by inserting the word skin after the word hyson, wherever it occurred, so that it might read hyson-skin tea, instead of hyson tea. He cited, 1 Caines, 153. Coleman’s Cases 59. 92.

<p>W. Morton, in behalf of the plaintiffs, moved for a rule to compel the attorney of the plaintiffs to proceed in the suit. He contended that after an attorney had commenced a suit, he could be compelled to proceed, though he might lose his costs. He cited 1 Bac. Ah. 187. 1 Salk. 87. 6 Mod. 86. 12 Mod. 251.</p> <p>It appeared that considerable costs had accrued in the progress of the suit, and that the attorney for the plaintiff refused to proceed further until he was paid the amount*</p>

This was an action of ejectment for land in Biltstown, in the county of Rensselaer. The cause was tried at the May Circuit, in 1806, before Mr. Chief Justice Kent. The declaration contained three counts, on three demises: 1st. By George Tibbits: 2d. By the sons of Barnardus Bradt, and his daughter Elizabeth, and her husband, John L. Bradt: 3d. By the heirs and legal representatives of Volkert P. Douw, the heir of Petrus, who was the heir of Janas Douw.

_ „ . , This was an action or assumpsit tor money, the payment of which, by one Bonaventure Sire, had .been guaranteed by the defendant. The cause was.tried at the New-Yorlc Sittings, the 12th December, 1806, before Mr. , Justice Livingston, when a verdict was taken, by consent, for the plaintiffs, for 11,973 dollars, subject to the opinion of the court, on the following case.

<p>The inhabs-tants of Gravesend are not the of land, des-agreement between them and one 1670; buuhe sam,e belongs to the persons holding under have" the "inhabitants of r¡ght to^take and cariT a: way sea-weed fromthebeach sóií'neck^of kmd-greemenTre-has'^xisted1'* for more than yeare°andun. interrupted possession under if, by one of the parties, his heirs and assigns, the opposite party is concluded from disputing the title, and the court will not listen to technical objections to the deed for want of apt words, proper parties, or form. Seaweeds, &c. cast on the shore, belongs to the owner of the soil, and not to the first occupant. A right cf egress and regress over the land, or fishing|and fowling, does not give the right o« taking wood, grass, or any thing appurtenant to the ownership of the soil.</p>

THIS was an action on a policy of insurance on the freight of the schooner Sukey and Polly, on a voyage, at and from New-Orleans to Cape-Nicolas-Mole, and at aa , . -a. , , „ , , I he plaintiffs were th» sole owners of the schooner, and chartered her at New-Orleans, for the voyage, to on® Benjamin Morgan, who had put on board a full car- §°> fright of which, if the voyage had been performed, would have amounted to the sum insured.

Tins was an action of assumpsit, for the freight of 190 hogsheads of sugar, in the ship Esther Lindo, of which the piaiutiff was master, from Surinam to Neio-YorJc. The * ’ _ cause was tried, at the New-York Sittings, the 6th June, 1806, before Mr. Justice Thompson. The goods were shipped at Surinam according to the of landing, to be delivered to I. S. at N. Y. or his assigns; the freight was stated to be at the rate of $7 per hogshead.

This was an action of trover, brought to recover the value of 216 doubloons, equal to 3,280 dollars and 27 cents. At the New-YorJc Sittings, held before Mr. Justice Thompson, the llth June, 1806, a verdict was taken for the plaintiff, subject to the opinion of the court on the following case.

Tuts was an action of assumpsit. The declaration stated, that on the if 1st December, 1801, and before the bankruptcy of Robert Bird, the said Bird, Savage &f Bird, were copartners in trade, and that the defendant was indebted to them before the bankruptcy of the said Robert, in $2,500 for money laid out and expended, and the like , sum for money lent, and the like sum for money had and received, and the like sutn on an insimulcomputassent, &c. The defendant pleaded four…

• . 1 His was an action on a policy of insurance on freight. Resides the count on the policy, the declaration containcd the usual money counts, and it was agreed, that if the plaintiff ought to recover on the policy, in any form of declaring, the present declaration should be deemed sufficient. The cause was tried at the New-Yorlt Sittings, December, 1806, before Mr. Justice Livingston.

This was an action of assumpsit. The cause was tried at the New-Yorlc Sittings, on the' 31st December, 1806, _ . T . r . f . before Mr. Justice Livingston.

<p>A rig-ht. oi ^^gives^ no power over „,¡n prescrip-right toprecta anoth'eHsland, The patent-granted the! 23dofFebru-j^’ngS67¿0^ telyou, extends on the S.‘ *W. side to the ordinary high-water mark. The tight of fishing in the waters of the bay, or in the limits of the patent of 1668 and 1686, to New-Utreoht, does not give' any right to erect huts on the shore for that purpose. Evidence of usage inadmissible to explain the language of a' deed not ambiguous or equivocal, if, to an action of trespass, the defendant plead the general issue, and give notice that-he will offer in evidence a prescriptive right of fishing, in the sea adjoining the locus irt quo, and of usin0, and occupying the-shore for that purpose, he cannot give evidence of any prescriptive right to erect huts on the shore for the purpose of fishing; but such a custom or usage should be pleaded or mentioned in the notice. . The grant or laying out of a highway, gives only a right of way to the public ; but the fee or rignt of soil remains in the original owner, and an action of trespass will lie for any exclusive appropriation of the soil.</p>

<p>In selling; forth ina plea, the proceed. fefior court?" after giving-itis sufficient to say, that such proceed • ings were . thaif such ^an act was done üiauhe defendantwas discharged from hisdebts ^ vent, with-fbiV^ilhfhe proceedings aPprlsoner in execution, on ajudgment'in a court of. Common Fleas, be duly discharged by such court, under the actforrelief of debtors, as to the imprisonment of their persons, and he afterwards remove into another county, no action can be brought against him for-the same debt, or on the judgment, unless he be convicted ofwilful purjnry in obtaining his discharge, though he has no property in the county in which the judgment was rendered, but has-sufficient in the county into which he has removed.</p>

<p>against three twenyereta-ken, and the other return-e[j not f0Und. fhe plaintiff declared against thetwo defendants in court, sitnul cum, tíre other; the two defendants pleaded the general issue, not fhwjuryfound a general guilty.1 The defendants rest of’judg^" ment> °n,tlle the plainiffs cee^untifali the-defendants were brought into ?ourt- But that torts be< ggferaMhe plaintiff Section,1 pro-csecl aSainst one or more of the defend. ^e^eclara-^ bon, though informal, was fipred by t}ie yerdict.</p>

This was an action for mesne profits, tried at the last June circuit, in Dutchess county, when a verdict was taken for the plaintiff for 150 dollars damages, Subject to the opinion of the court on the following case. ' The defendant, and those under whom she claims, had been in possession of the premises in question for above thirty years past.

PlSK, in behalf of the defendant, moved for a mandamus to be directed to the judges of the court of common pleas of the«county of Orange, commanding them to give judgment in this effuse, then pending before them. He offered affidavits of the facts on which his motion was founded, and which were entitled Reuben Turner adsm.

HENRY, in behalf of the plaintiff, moved for a struck ^ - jury in this cause. He read an affidavit, which stated, that at the time of the publishing the libel for which the present action was brought, the plaintiff was,, and now is recorder of the city of Albany, and is also a member of the-assembly, and was a member in 1806, the period referred to in the libeL

movedlo change the venue in this cause from the city and county of ° New-Yorlc to the. county of Washington.

<p>AN habeas corpus had been issued, directed to the defendant, commanding him to bring up the body, of a female child, name Cornetie Harder. The child was now , ■ . . • nr, , • , , brought into court. From-the return it appeared, that it was the illegitimate, daughter of Maria Brower, now the wife of the defendant: that in 17,99 one Harder, the father of the putative father, then an infant, entered into an agreement with one 'Brower the father of the child’s , , - . . mother, by which it was agreed, that all suits concerning the child and its maintenance should cease, and that Brower should take care that the child should be suitably maintained during the first year from its birth : Harder, on his part, engaged to maintain and educate the child after the first year, until it attained the age of seven years; after which period Brower was to save harmless, and indemnify Harder from .any further expense. The child was about nine years old, and had been supported, pursuant to the agreement, until it attained the age of seven years, when it was returned to Brower, who in 1800, at the request ot the mother, the wife of the defendant, permitted the child to live with the defendant, and his wife.</p> <p>E. Williams moved to have the child delivered into the custody of the putative father. He read several affidavits, to show that the child had been ill treated, and severely abused by the defendant. He observed, that whether the mother or the putative father of a bastard child was entitled to its custody, was a question not clear-, ly settled. There was some contrariety in the decisions on the subject. That while the .child required a nurse, the mother was entitled to the custody, but, afterwards, the father..* As between the putative father and the parish, the right of the father must prevail.† The agreement between the parents of the putative father and mother of the child, cannot affect or take away the rights of the father.</p> <p>By the common law, the putative father stands in no relation to a bastard child, nor can he claim any of the rights of a father. The child is considered as fdius nullius.‡ It has been decided in the English courts, that the putative father has no right to the custody of the child.|| Admitting, however, the right of the putative father; that right must be considered as waived by the agreement entered into by the parents, especially after so long an acquiescence by the father.** At least, the court will give the’ child its election, whether to reside with, its mother or the putative father. The court will always interfere to protect the child, and may, at its discretion, place it in the custody of such person as they may think best.††</p>

A JUDGMENT was given for the defendant, at the v last November term, on a demurrer to the declaiation of the plaintiffs. A question was now submitted to the court, whether the plaintiffs were liable to pay costs.

ON a return to the certiorari in this cause, it appeared, that the defendant in error brought an action of debt against the plaintiffin error, before the justice, on ajudgmeht recovered before another justice. The defendant below denied the existence of any such judgment. The plaintiff below thereupon produced a certificate, under the hand and seal of the other justice, of the judgment obtained before him.

ON the return io the certiorari in this causé, it appeared, that the defendant below pleaded in bar to the plaintiff’s demand, a receipt in full, and the plaintiff below replied, that it was given on a condition, which had never been performed by the defendant below, and issue was joined on that fact. Several witnesses were examined, hut the justice, in his return, did not state that they were sworn, but that the facts were’ proved by them. objected, 1.

<p>The act for establishing a turnpike road from Cherry Valley to the Chenango River, gives no penalty agaiust the toll gatherer, for taking toll from persons exempted by the act from the payment of toll A penalty must oe created by express words, and cannot be raised by implication i</p>

AT the last oyer and terminer, in the county of-, J held before Mr. Justice Tompkins, the prisoner was convicted of murder. On his arraignment, he suggested his alienism, which was admitted. He then moved to put off his trial until the next court, so that a panel of jurois de medietaie linsruce, might foe made out and returned; but 6 0 the court ordered the sheriff to return such a panel m-stanter.

ON the return to the certiorari in this cause, the following facts appeared. The defendant in error brought an action of trespass in the court below, against Lansing and Goeway.

IN error on certiorari. The defendant in error sued ^ie plaintiff in error, in the court below, by a warrant duly obtained on oath. The warrant was returned served, oa the 15th November.

IN error on certiorari* ' The constable who summoned the jury acted as counsel for the plaintiff.

<p>IN error on certiorari* ' The constable who summoned the jury acted as counsel for the plaintiff. The defendant, though he knew that fact, gave the venire to the constable to serve* After the trial, the same constable was sworn to attend the jury, but the 'defendant made no , , . . . . . objection'to his going out with them*</p> <p>qnjie on]„ question raised, on the return to the ccriio-J 1 rari, was, whether the fact of the constable’s being coun^ se^ f°r the plaintiff under the circumstances of the case, rendered the judgment below erroneous.</p>

ON, the return to the certiorari in this cause, it appeá-red that the justice, for want of a sufficient number ofju-rors w|10 were' summoned on the venire, awarded a tales . ‘ de cixcumstantibus: and the only question was, whether, unt*er 1 act> a justice has power to award a tales.

IN|error on certiorari. The defendant in error brought his action against the plaintiff in error, in the court below. The declaration stated that the defendant was indebted to the plaintiff in'the sum of 20 dollars, for costs accrued in a suit brought by Harper against Waite in the court of common pleas; on the settlement of which, the defendant promised to pay the costs; the defendant below pleaded i i • , the general issue; and the jury round a verdict for the plaintiff.

This was an action of debt.- The declaration stated that on the 11th June, 1805# articles of agreement were made between the plaintiff and defendant, by which the plaintiff, in consideration of the covenants therein after mentioned, to be kept and performed by the defendant# covenanted to work, build-, and complete a certain piece of turnpike road, described in the agreement, before the' first day of November next ensiling: and the defendant, on-his-part, covenanted to-pay…

<p>This was an action of ejectment for land in Oswegoi in the county of Broome. The cause was tried at the' Broome Circuit, the 4th of May, 1807, before Mr. Justice Tompkins. Both parties claimed under warranty deeds from one James M1 Master, who, it was admitted, had a good title. The plaintiff deduced his title from M1 Master, under a deed from him to one David Mf Master-, for lots No. 9 and 10, dated the 22d September, 1794. Some years after, James M’Master executed a deed with the usual covenants, for the premises in question, to one Brown, from whom the defendant derived title. The question was, as to the boundaries of the two lots mentioned in the deed to David M'Master. If the southern boundary of them extended to the Susquehannah river, then they included the premises in question, otherwise not. The defendant called James M’Master as a witness to prove that the lots did not extend to the river, but were bounded south by-the highway, or front street. He was objected to by the plaintiff’s counsel, as an interested wituess, but the objection being overruled by the judge, the jury found a verdict for the defendant. A motion for a new trial was made at the last term, on a case containing the above facts, which was submitted to the court without argument.</p>

This was ah action of covenant. The declaration contained four counts.

This was an action of ejectment, for one third of the J premises in possession of the defendant. The cause was tried at the Orange circuit, when a verdict was taken for the plaintiff, subject to the opinion of this court, on the r, ,, . following case. The lessors of the plaintiff claimed in right of Mary _ . . ° * Bush, a daughter of William Watson, deceased.

This was an action of covenant. The declaration was. on a covenant by the defendant, as lessee, on a lease ma(le between him and one Jacob Hallenbeck, now deceased, who bad, before his death, conveyed the rever-&'ion of the demised premises to the wife of Hallenbeck, one the plaintiffs.

<p>N. brought an actionqui tarn, against H. to recover the penalties under the tavern fore pleaded, greed*1 with" the defendant the'suitf'and arulewaseh-tered for that purpose, and paMfivtTdol-lars for costs, brought an action qui lam. against N. on the “act to re-dersV common informers,” S¡c. for sirT'^and”" i pouncüng0™1 popular ao-ti0DV a,n,d(iit, was held, that the discontinuing of a popular action is no offence within the act; the compounding a popular action, means a composition for the offence, and the discontinuance and payment of costs is neither a composition nor receiving* money under the colour of the</p>

On certiorari. The defendant in error brought an action of debt against the plaintiff in error, in the court below, to recover the penalty of 25 dollars, given by the 18th section of the “act to establish a turnpike corpora- “ tion for improving and making a road from the west “ line of the town of Salisbury, in the state of Connecticut, “ to the Snsquehannah river, at or near the town of Jeri- “ c/io.” The act declares, “ that if any toll-gatherer shall “ unreasonably delay…

<p>This was an action of debt, on a bond, given by the defendants and M. Ogden, the 16th November, 1797, to the postmaster general of the United. States. The declaration stated the execution of the bond, and set forth the condition, “that the said Matthias Ogden should well and truly execute the office of deputy postmaster at Fort Edward, and faithfully, once in three months, and oftener if required, account for and pay all moneys that should come to his hands for the postage of letters and newspapers, and. of whatever is by law chargeable with postage, to the postmaster-general.ofthe United States, for the time being, deducting only the allowances made by law for his care and trouble and charges in the said office.” The plaintiff avers, that Joseph Habersham, was then postmaster-general, and that the plaintiff is his successor in office, and that the suit is commenced for the recovery of a debt or balance due to the general post-office — that the said Matthias did not, on the first day of October, 1801, nor at any time between that day and the first day of July, 1800, nor at any time since hath he accounted to the postmaster of the United States for all or any moneys that had cometo his hands, as deputy postmaster aforesaid, during all or any part of that time for postage, «fee. — That the said Matthias did not, on the first day of July, 1803, nor at any time during three months preceding, nor hath he hitherto, accounted to the postmaster-general of the United States, for all or any moneys that had come to his hands for postage, «fee. — That on the first day of October, 1803, there came to his hands 27 dollars 14 cents of moneys for postage, &c. over and above the allowances made him by law, «fee. and that the said Matthias did not, on the 1st October, 1803, or at any time in three months next ensuing or preceding, or any time since, pay the said 27 dollars 14 cents, or any part of it, to the plaintiff, whereby an action hath accrued, «fee.</p> <p>that the said Matthias Ogden had kept and performed all the covenants on his part to be performed, contained in the said condition, ivithout this, that the said Matthias did not, on the first day of October, 1801, nor at anytime between that day and the 1 st July, 1800, nor hitherto account, &c.; — and without this, that the said Matthias did not, on the first day of July, 1803, nor within three months prior or subsequent, nor since account «fee.; — and withput this, that on the first day of October, 1803, there had come to his hands 27'dollars 14 cents, &c., after deducting, &c., and that he did not, on the first day of October, 18.73, nor within three monhts before or after, nor at any time since, pay the same, &c.</p> <p>To this plea the plaintiff demurred specially. 1st. Because the plea traverses matter not traversable, in the manner, &c. Because the plea contains no matter of inducement to the matters traversed. [*]3. Because the plea traverses matter not alleged in the declaration. 4. Because the plea is general where it ought to be special; and is multifarious, argumentative, not issuable, nor does it answer the breaches assigned. The defendant joined in demurrer.</p> <p>that the plea of performance generally was bad, for the defendant ought to show how he had performed. That as the plea of general performance went to the whole declaration, there was no necessity for traversing the particular breaches assigned. He cited Sac. Ab. Pleas and Pleadings, I- 3. Cro. Eliz. 253. 394. Cowper, 47. 575. 578.</p> <p>that the plaintiff ought to have assigned but one breach in his declaration; bat that the defendant might plead performance generally, and then traverse the particular, breaches. The proper and usual way of pleading was for the plaintiff to declare for the penalty, and the defendant to crave oyer of the condition, and plead performance generally, to which the plaintiff may reply, and assign the breaches, and the defendant rejoin, traversiñgthe breaches. Here the plaintiff has, in the first instance, assigned the several breaches in his declaration. [They cited 5 Comyns’ Sig. Pleader, 396. 1 Burrow, 316. 2 Term, 439. 3 Caines, 162. 2 Burrow, 772.]</p>

This case came before the court, upon a writ of error, founded on a bill of exceptions, taken at the court of common pleas, for the county of Washington. The suit below was on a promissory note given by Cochran to Bailis, and for money lent. The defendant pleaded non assumpsit, and the statute of limitations. Upon the trial, Bailis, the plaintiff below, offered in evidence a commission, with the proceedings thereon, issued out of the said court, and duly returned.

<p>corn growing-is a chattel, UJcen h/exewhere a She-of an executions in \tbe cembe 805-seized all the perty^ofThe debtor, and particularly mentionedthe intheground occupied by and ?a\be’ month of Auing-,\vhenThe vesi,cut&car- and soldIt at auction; and executfonwas issued in August against ük; same levied’on the tome wheat wln'e in the sheajfaad be-moved^frota" the-gronnd, it was held that the first execution was not dormant, or within the rule, that where goods taken on execution, are left in the hands of the debtor, the execution is fraudulent and void against a subsequent execution, but that the sheriff might sell the wheat on the first execution, having taken all the possession of which the nature of the chattel was susceptible.</p>

This was an action of assumpsit on a promissory note, dated the 10th day of February, 1802, for forty-four dollars, payable on the first day of June then next. On the trial of the cause, the note produced and proved to the jury was for the same sum and date as mentioned in the declaration, but' was stamped with a stamp offour cents.

This was an action of trespass qutire clausum fregit The cause was tried at the Rensselaer circuit in May, 1807’ before Mr‘ Justice Spencer. The declaration contained three counts, for threé distinct trespasses, on the same day, in Pittstown.

This is the same cause reported ante, p. 227. Thé declaration and plea were the same, but under the leav.e given by the court to the plaintiffs, to amend their repli-catáon, they replied that the trespass mentioned in the ’ , , . , . , - . defendant’s plea, and set forth in the record recited there-an^ trespass alleged in this case, is not the same trespass, but another and different trespass, and they conclude by praying judgment, whether they ought to be barred, &,c. from…

This was an action of ejectment, for lands in.the village of Fort Anne, in the county of Washington. The cause was tried before Mr. Justice Spencer, at the Washington circuit in June, 1807. The plaintiff had occupied the premises as his own, about three years, but had not occupied the same for the last seven years. The defendant was in possession at the commencement of the suit.

This was an action of debt, against the defendant, as sheriff.of the county of Rensselaer for an escape.

Tins was an action of ejectment, for a part of great lot No. 23, in Hassenclewoer's patent in the county of Herki-mer. The cause was tried the 22d day of June, 1807, before Mr. Justice Van Ness. The declaration contained separate demises from each of the lessors. There were five defendants, who appeared and entered into the consent rule jointly, and jointly pleaded not guilty. On the trial, they jointly confessed lease, entry, and ouster.

From the return of the writ of error in this cause, directed to the court of common pleas for the county of Chenango, it. appeared, that the declaration in the court below contained three counts. 1. For money had and received to the plaintiff’s use; 2. For money paid, &e. to the use of the defendant; 3.

Tins was an action of ejectment, for land in the town .of Aurelius, county of Cayuga. The cause was tried be-*ore ^1'- Justiee Livingston, at the Cayuga circuit court, the 9th day of'June, 1806. The defendant confessed , .. l^ase, entry, and ouster 5 and it was proved that he was Possess’lon of tlle premises claimed. The plaintiff gave in evidence, in support of his title, a patent to one of ^le ^essors plaintiff, for the premises in question, and there rested his cause.

The plaintiff brought his action of replevin, for eleven cows, one mare and colt, one cow, a steer, one piece of corn, and six tons of hay, in the court of common pleas, for Washington county, from which it was removed into this .court by certiorari.

This was an action of assumpsit, oil a promissory note, dated the 3d May, 1804, by which the defendants promised jointly and severally, to pay, six months after date, to O. S. or bearer, 71 dollars, with interest.

In error, on certiorari. The defendant in error brought an .action against the plaintiff in error, in the court below, on a promissory note, made by the defendant below, to which there was a subscribing witness. At the trial, the defendant denied that he had given the note ; the plaintiff below called a witness to prove, that the defendant had confessed that he executed the note to the plaintiff.

<p>The plaintiff declared for goods sold and delivered to the son of the defendant, on the guarantee of the father, and laid the venue in the city, and county of New-Yorlc.</p> <p>moved to change the venue to the county of Columbia, on an affidavit, stating that the letter of guarantee was written in that county, and that, therefore, the cause of action arose there, and not elsewhere, out of that county; and, also, that there were . several witnesses material to his defence residing in Columbia.</p> <p>offered to stipulate, if the affidavit was sufficient.</p>

<p>In an action of debt against a sheriffforan escape of a • debtor in custody on a car. sa. no interest is allowed ; the original debt and damages is all that can be recovered. It seems where an ac ion on the case is bro’t, the jury may allow in terest in the assessment oi the damages, so as to give the plaintiff all that he has lost by the escape.</p>

This case came before the court on a writ of error, from the court of common pleas, of Dutchess county, founded upon a bill of exceptions. The suit below was an action of assumpsit. Held: that where a forged bill was excepted and paid, under a belief that it was a true one, that the acceptor, on discovering the forgery, afterwards, could not recover back the money.

This was an action of trespass. The declaration stated, that the defendant, on the 17th November, 1806, at JCinslury, &c. with force and arms, took and carried away from the plaintiff, nine horses, «fee. of the value of, &c. then owned and possessed by the plaintiff, which the defendant kept and detained for six days, by which the horses were much damaged, and made worse, and the plaintiff lost the sale of the horses, &c. to his damage, &c, The defendant pleaded, 1.

In February term last, the court granted new trials in these causes, considering the verdicts as against evidence, as to the fact of seaworthiness. (See ante, p. 124.) The causes having been again tried, verdicts were a second time found for the plaintiff. On the second trial, the only additional evidence, on the part of the plaintiff, was, that the vessel, ingoing down Connecticut river, struck on a bar of sand, so as slightly to impede her course.

This was an action of trover, for the equal half of two . . carding machines. 1 he cause was tried at the Rensse-^oer circuit, in May, 1807, before Mr. Justice Spencer. On the trial, the following facts appeared in evidence.— One Schermerhorn, ontheldth day of March, 1803, demise(j to Smith and Babcocle, a mill, a small house, and a piece of ground for the purpose of erecting the carding machines, for the term of eight years at the yearly rent of 60 dollars.

This was an action of assumpsit. The declaration contained five counts : 1. For goods sold and delivered, &c. 2. Quantum meruit thereon. 3. For money lent, &c. 4. Money paid, laid out, &c. 5. Money had and received, &c,; and the promises were stated to have been made by the intestate in his life-time.

The prisoner was indicted and convicted of felony at the sessions in Washington county, for stealing a horse. On the trial, it appeared, that the original taking of the horse was in the state of Vermont, but that the prisoner was apprehended in Washington county, with the horse in his possession. The question was submitted to the court, whether the prisoner could be tried and punished in this state for the felony.

<p>Where the goods of a tenant who had hired a house for a year, for a sum payable quarterly, are taken in execution, the landlord is not entitled to rent for the current quarter, but only to the rent due on the last quarter day.</p>

VAN WYCK moved for judgment, as in case of non-suit, for not bringing this cause to trial on the usual affidavit. because the copy of the affidavit, which had been served with the notice of the motion had no name signed, nor jurat.

The prisoner was indicted, at a court of General Sessions of tho Peace, in the city of Neio-Yorlc, for felony, in stealing a gun, the property of one Carroll.

HOPKINS, for the plaintiff, moved for judgment, quod partido fiat in this cause, upon the pleadings which, in substance, were as follows: The petition (after stating the rights of the plaintiffs, which were not contested,) set forth, that the defendant, Fitzsimmons, was seised in fee, of an undivided moiety of the premises, subject to two mortgages in foe, granted by him, the first of which was to the defendants, Ashley and Crammond, and the second, to the other defendants,…

<p>•Where the •defendant in a cause is in prison on a chargeoffelony, he may,at the instance of his bail, be bro’t up on a habeas corpus, in order that hemay be surrendered in discharge of his baiL</p>

This was an action of dower, for one-third of a messuage, and one hundred acres of land, in Pittstoivn, in Rensselaer county. The defendant pleaded: 1. Neun-, ques accouple, Scc. 2. That the husband was still living, See. with a verification. 3.

The appellants in this cause presented a petition to the court, praying, that all further proceedings might be stayed, until Alexander Macomb, who had been appointed an assignee of Sands, in the place of Isaac Kibbe, should _ , , . . . . , , be made a party in this suit.

On the 14th October, 1800, the respondent filed his bill in the court of chancery, against Peter W. Livingston, Deter Delabigarre, and Margaret, his wife, certain judgment creditors of Delabigarre, and Andrew Stockholm.

The respondent, on the 17th June, 1803, filed his bill - ,, „ , . in the court or chancery, against the appellants, and one George Shelden, for the sale of certain mortgaged premises, and to… Held: in this court, to take contracts, which otherwise, by the provisions of that statute, must be in writing, out of it. Hence the lease subsequently executed only furnished more certain evidence of the contract.

This cause was brought before this court by a writ of error, on a judgment of the supreme court. The judgment. below was given on a special verdict after a second trial. For the arguments of the counsel and opinion of the court on the first motion for á new trial, see 2 Caines, 224.' The facts, as found by the special verdict are fully stated in the first volume of these Reports, p. 152.

In error from the stfpreme court. This was an action on a policy of insurance,’ on the cargo of the brig Three Friends, on a voyage from Neio-York to New-Orleans'; At the foot of the'… Held: that the ... ... mi • sea-letter was an essential paper. I he inconveniences which might arise from not carrying it, are stated ; and . . , the reasoning on the subject would go a great way to decide this cause, if it required the application of the prin-iciples laid down in that case.

This was an áction on the case, in the nature of a writ of deceit. Held: that, after verdict, the court will do what it can to help a declaration ; that the court will suppose every thing right, unless the contrary appears on the record ;‡ and the general scope of the authorities is, that after verdict, every legal intendment is to be admitted in its support.(a) Though I have not been able to find any…

' t The appellant, in September, 1804, filed his bill in the court of chancery against the respondent, and his father, Abel Belknap, praying, “that the said Abel Belknap and Chauncey Belknap, might set forth and discover what title or claim they, or either of them, had, or pretended to have, to a farm consisting of about two hundred acres of land, situated at Newburgh, in the county of Orange, previously purchased by, and then in the actual possession of the appellant: And…

The respondent filed his bill in the Court of Chancery against the appellant, for the foreclosure of the equity of redemption of a mortgage executed by the… Held: that a condition to malee an assurance did not require that the deed should contain a warranty or covenant, but the rule now seems to be, that it should contain reasonable covenants.† The parol evidence was clearly inadmissible, as there was no latent ambiguity. There is no ground for the suggestion of fraud.