Volume 2 — Johnson's New York Cases

<p>Where an agent receives a bill in order to obtain payment, he must send notice of non-acceptance and non-payment, with the protests to the remitter, whose duty it is to give immediate notice to the drawer.</p> <p>If the agent himself undertakes to give notice to the drawer, it will be sufficient, if it be given as soon, as under the circumstances of the case, it could have been received from the holder.</p> <p>The prevalence of a malignant fever in the city of New York, was held a sufficient excuse for not giving notice until November of a protest of nonpayment made in September. '</p>

This was an action of debt, brought by the plaintiff, as late sheriff of the city and county of New York, against the defendant, one of his deputies, on his bond of indemnity, for an escape. The cause was tried at the July circuit, in 1799, before Mr. Justice Benson. At the trial, the following facts appeared in evidence.

This was an action of covenant. By an indenture, made the 12th January, 1774, John Tan Rensselaer granted and demised to Jacob Plainer, his heirs and assigns, a farm in Claverack, in the county of Columbia, to have and to hold, &c. unto the said Jacob Platner, his heirs, executors, administrators and assigns, forever, yielding and paying, &c., and the grantee for himself, his heirs, executors and administrators, covenanted to pay the rent.

<p>Where an estate in fee is granted, reserving annual rent,- the devisees of the grantor cannot maintain covenant against the executors of this grantee of tenant in fee, for rent in arrear.</p>

<p>Where a justice, after a certiorari from this court was delivered to him, proceeded to try the issue of traverse on an indictment under the act to prevent forcible entries and detainers, and the defendant being found guilty, the writ of restitution was issued, and the defendant turned out of possessiou, it was held, that the proceedings of the justice, after the certiorari, were coram non judice, and void, and that the justice was liable to an action of trespass.</p> <p>Where an entry is followed by an ouster, the party oan recover damages only for the mere trespass or entry ; but if he make a re-entry and lays his action with a continuando, he may then recover damages for the mesne profits or subsequent acts, as well as for the trespass.</p>

<p>This was an action of dower. The cause was tried before Mr. Justice RadcliJ) on the 18th of November, 1799, when a verdict was found for the demandant, subject to .the opinion of the court, on a case containing the following facts:</p> <p>The marriage of the demandant, seisin and death of her husband were admitted. The demandant, and her husband, John Kelly, were born in Ireland, where they were married in the year 1750. ■ About the year 1760, John Kelly; came to the city of New York, where he resided at the commencement of‘and during the American revolution, and continued to reside in the state of New York, until his.death, which happened in the autumn of the year 1798. The demandant is a subject of the king of Great Britain having ^continued to reside in Ireland from her birth to the present time.</p>

This was an action on a policy of insurance on the profits of goods laden on board the ship Favorite, on a voyage from New York to Havre. The ship and goods were captured by a British cruiser, and carried into London, and libelled in the court of admiralty there.

This was an action of ejectment. The cause was tried at the last Rensselaer circuit, before Mr. Justice Be - on ' The plaintiff claimed under a patent from the state, dated the 14th of August, 1786, to WilliamjShepherd and Joshua Mercereau, and deduced a regular title by deed to the lessor for one-tenth and one-eighth parts of the lands in the patent.

<p>This was an action of trespass, assault and battery, and false imprisonment. Plea not guilty. The cause was tried before Mr. Justice Kent, at the last sitting in New York.</p> <p>The defendant was a justice of the peace in the county ©f Albany, A suit was commenced before him, in favor of one Chapin against the plaintiff in the present suit, in which a judgment was recovered in favor of Chapin. After the expiration of forty days, an execution was issued by the justice against the goods and chattels of Percival, and in case n© goods or chattels could be found, his body was directed to be taken, which is the usual form of an execution against a freeholder, under the act. He was taken, by virtue of the execution, and imprisoned for thirty days in the jail in the city of Albany. It appeared that Percival, immediately after judgment was so obtained against him by Chapin, declared to the justice that he was not a freeholder, and had a family in Albany, where he was an inhabitant; which facts were proved at the trial. While he was proceeding, in the custody of the constable, to jail, he met the defendant, and again alleged that he was not a freeholder, and was an inhabitant of Albany, and had a family there, but the defendant directed the constable to commit him, according to his precept.</p> <p>The jury found a verdict for the plaintiff. A question» was reserved by the judge, whether if the plaintiff was not a freeholder, and had a family, the justice could he liable to a suit for issuing the execution, and whether the present action was the proper remedy. If the court should be of opinion that the justice was not liable, then a nonsuit was to be entered, otherwise, the verdict was to stand.</p>

This cause came before tbe court, on a writ of error, from the West Chester common pleas. The declaration contained four counts.

<p>Buying and selling lands out of the possession of the vendor, and held adversely at the time, is buying and selling a pretended title, and is not a valid consideration for a promise. It is a species of maintenance and void on general principles of law and public policy.</p> <p>A sale by one state of lands within the jurisdiction and under the adverse claim of another state, must he judged by the same principles of law as a sale by an individual.</p> <p>Therefore where notes were given for the purchase money, on a contract for the purchase and sale of Susquehaimah lands, within the jurisdiction of Pennsylvania, under the Connecticut claim to those lands; it was held that the sale was illegal, and the consideration void.</p>

<p>This was an aeiion of assumpsit, on a promissory note drawn by Charles Watkins in favor of the defendant, indorsed by him, Barber and Griffin, and Peter A. Schenek, and which note, afterwards, came into the hands of the plaintiff.</p> <p>The cause was tried at the last sittings in New York, before the Chief Justice. The defence set up was, that the note was usurious, and therefore void.</p> <p>it was proved by a witness for the defendant, that Watkins, the maker of the note, in order to raise money, sent it to one Haskin, a money broker, who had often ' obtained money for him before.</p> <p>When the witness first took the note to Haskin, it had not been indorsed by Peter A. Schenck. Haskin kept it a few days, and then returned it to the witness, telling him that he'could not get the money on the note as it then was, but that if Watkins would procure the endorsement of Peter A. Sckenck, he (Haskin) could get him the money, at the rate of two per cent, per month. The name of Schenck was obtained, and the note again taken to Haskin, who then advanced a part of the money, and, shorlly afterwards, the residue, deducting at and after the rate of two per cent, per month, as the interest thereof. It further appeared in evidence, that at the time of delivering the note to Haskin, the witness knew not whether Haskin was the owner of the money, or.acted as an agent for another, but he knew no other person as the lender of the money. The terms were adjusted solely with Haskin.</p> <p>The counsel for the plaintiff offered Haskin as a witness, to prove that he, as the broker of Watkins, had sold the note in question to one Herriman, at a discount, not exceeding legal interest; and also offered Herriman, who had no interest in the note, and was released by the plaintiff, to prove that he had given a full consideration for it; but they were both rejected by the judge.</p> <p>The counsel for the plaintiff contended, that as Haskin was proved to be a money broker, the jury might consider him as the broker of Watkins, for the purpose of selling the note, and that at any rate it was a sale of a note, and not a usurious contract.</p> <p>But the judge charged the jury, that under the evidence before them,, they must consider it as a loan, and Haskin as .the principal; that the terms of the loan were made by him, and he only was known as the lender; that as more than seven per cent, per annum, had been taken, the note was void, and they must find for the defendant.</p> <p>The jury, nevertheless, found a verdict for the plaintiff, for the full amount of the note, with interest.</p> <p>*A motion was made to set aside the verdict, and for a new trial.</p>

This was action of ejectment. The cause was tried at the Albany sittings, in April, 1800, and a verdict taken for the plaintiff, by consent, subject to the opinion of the court, on the following case: The plaintiff claimed under a patent to Salisbury and others, dated the 20lh of April, 1749, and the defendant under a patent to Coeyman, dated the 26th of August, 1714, the south boundary of which is described as “ beginning at the mouth of Peter Bronck his creek, and thence…

This cause came before the court, on a writ of error, from the Mayor’s Court of Albany. By the record it appeared, that the action in the court below had been referred to referees, who had reported a sum due to the plaintiff below, who is the defendant here, and that the judgment in the court below, was given for ninty-nine cents more than the amount reported to be due by the referees.

<p>Where there were two plaintiffs in a cause, one of whom resided out of the state, and the other within the state, and the plaintiff within the state, died pending the suit, and the defendant obtained judgment, it was held that the attorney of the plaintiffs was not bound to pay the costs.</p>

Mumford, on an affidavit, stating that a verdict had been obtained, in an action depending in the common pleas of Cayuga county, on which the court refused or delayed to give judgment, moved for a mandamus to the judges of that court, commanding them to pronounce judgment on the verdict.

Troup, for the defendants, moved for a commission to examine witnesses, at Porto Bello, on a general affidavit, that it was supposed sufficient evidence might there be obtained.

<p>An affidavit, on which a motion is made for a commission to examine a witness, may be made by a third person, not a party to the writ.</p>

In error, on certiorari, from a justice’s court. A rule was long since obtained, by the plaintiff in error, that the defendant join in error in twenty days after service of notice of the rule, or that the plaintiff be heard, ex parte. The notice of the rule was served in July, 1798, and the defendant had not joined in error. *Emott now moved for a reversal of the judgment below.

<p>A commission to examine witnesses in Philadelphia was issued on the application of the defendant, and returned, but the return was stated to be irregular.</p> <p>moved for leave to proceed to trial, at the next circuit, and offered to waive the irregularity in the return of the commission, and that the same might be opened, and the defendan t have the benefit of the testimony taken under it.</p>

After the trial of this cause, and within the time allowed fox making a case, the defendant’s attorney applied to the attorney for the plaintiff for the inspection of certain papers, which had been read in evidence, to enable him to make the case, and which were necessary for that purpose. These were refused, and the ■ defendant’s attorney for that reason could not make the case.

An attachment was issued against the sheriff of Delaware for not bringing in the body of the defendant. The rule for the attachment was entered in less than twenty days after service of a notice on the sheriff of the previous rule to bring in the body.

A recovery was obtained in the common pleas of Ulster, in favor of the plaintiffs, in the capacity of administrators, for a sum less than 25 dollars. The court below gave judgment for the damages, but considering the plaintiffs not entitled to costs, refused to give judgment for costs.

<p>Where a person had been convicted on an indictment for an assault and bgt, tery, and the attorney general moved for judgment, hut showed no eirpunjptances attending the offence, by which the court could judge of the degree pf punishment which ought to be inflicted, a njere nominal fine was imposed.</p>

The defendants were sued as the special bail of A. B. In January term last, judgment was obtained against them, and in March, an execution issued thereon. The proceedings against them were by writs of scire facias, which were returned nihil; and it appeared, that the second scire facias had not been four days in the sheriff’s office. On this ground,

On a writ of right. The tenant having vouched one Hunter, a writ of summons was issued, the service of which was irregular, or its return by the sheriff was defective, no proclamation appearing to have been made.

This was an action of indebitatus assumpsit, for money paid, laid out and expended for the defendant, and for money had and received by him to the use of the plaintiff. At the trial, in support of his action, the plaintiff gave in evidence .a bill of exchange, dated the 27th of April, 1797, drawn by .the defendant on David Easton, of Philadelphia, directing him to pay, four months after date, to the plaintiffs, or their order, 750 dollars.

<p>This was an action on a policy of insurance, upon “ all lawful goods and merchandizes,” on board of the schooner Fox, from New York to New Orleans, “against all risks," &c. Premium,, 13 per cent. Plea, the general issue.</p> <p>The plaintiffs were British subjects, and partners in trade, residing in the city of New York, and on the 31st of January, 1799, put on board the Fox, at New York, a hale of Russia sheeting, of the value of 475 dollars. The vessel sailed on her voyage and was captured by a British cruiser, and carried into New Providence, ivhere the goods in question were condemned, under the name of ticklenburghs, as contraband of war, and enemy’s property. The plaintiffs, on hearing of the condemnation, abandoned for a total loss.</p> <p>It appeared that the premium for underwriting contraband goods was 17¿ per cent.</p> <p>The jury found a verdict for the plaintiff.</p> <p>*A motion was made to set aside the verdict, and for a new trial, which was argued by Riggs, for the plaintiffs, and Pendleton and Troup, for the defendant.</p>

In homine replegiando. The declaration was as follows : “City and county of New York, to wit: Joseph Hitchcock was attached to answer unto one Effy Sable, of a plea wherefore he took, and taken, kept the said Effy, and whereupon the said Effy, by Peter Jay Munro, her attorney, complains that the said Joseph, on the first day of November, in the year of our Lord, 1796, at the city and county of New York,Yand at the first ward of the said city, took the said Effy, and her…

In homine replegiando. This cause came before the court on a special verdict. The material facts it contained are as follows: The plaintiff was the slave of one Van Voorst, who resided at Bergen, in the state of New Jersey.

This was an action of assumpsit. The declaration contained six counts, upon an agreement made by the defendant to return a certain bill of exchange, delivered to him by the plaintiffs, and which they alleged was not returned. The cause was tried before the Chief Justice, at the last March circuit, in New York.

<p>In an action brought by A. against an executor for a legacy, the defendant offered in evidence an account, and certain bonds which had been paid and cancelled by the testator, on which there was an indorsement by the testator, that by agreement between A. and B. they were to be charged to the account of A. and the bonds were for that reason cancelled. The indorsement was prior to the date of the will. It was held that the account, and indorsement made on the bonds, were not sufficient evidence to support the debt set up against A. by the executor. And that if the debt had been proved, it would not have been released or exlinguished by the legacy.</p>

This was an action of assumpsit. The declaration was on a promissory note made by the defendant. The defendant pleaded, that at the time of exhibiting the bill, he was one of the attorneys of thi cour, and is still an acting attorney, and lhat attorneys are not, by custom, to answer any bill exhibited against them, as in custody of the sheriff, but only to bills exhibited against them, as attorneys, and concluded by praying judgment, if he ought to answer.

This was an action on a writ of right. The tenant moved the usual rule against the demandant, for judgment as in cases of nonsuit, for not proceeding to trial, at the last circuit. The demandant entered into the usual stipulation, and the question was, whether he. should pay the costs of the circuit.

Ten Broece moved to set aside the proceedings on the bail-bond in. this cause, on the ground that the plaintiff had settled with the defendant in the original cause, before the commencement of this suit, and had directed the attorney to slay proceedings, but who had, notwithstanding, proceeded.

Ten Broeck moved to set aside a default entered against the tenant for not pleading. It appeared that the consent rules were entered into, and a new declaration delivered, but no plea having been filed, a judgment was entered by default against the tenant.

<p>The trustees otan absent or absconding debtor, may be compelled to account on the motion of the debtor, as well as of the creditors.</p>

Ten. Broeck moved for an attachment absolute against a witness, on an affidavit that he was regftíarly summoned, and money tendered him for his expenses, which he did not object to for its insufficiency, tut positively refused to attend.

<p>The attorney is not bound to file security for costs, where one of the plaintiffs resides in the state, though he may be insolvent.</p>

<p>The tenant in a writ of right, may be called on the first day of the term, and his default entered for his non-appearance, and if he does not appear, on the quarto die post, and excuse his default, he will be nonsuited.</p>

<p>On a motion to set aside the default, and that the defendant have leave to plead, on the sole ground that he had merits, the plaintiff not having lost a trial.</p>

<p>Bowman moved to vacate a certificate of a judge, giving further time to make up a case.</p>

<p>An affidavit to change the venue made by the defendant’s attorney, stating that the plaintiff confessed that the cause of action arose in another county, is sufficient.</p> <p>A counter affidavit of the plaintiff, that he believed he could not have a fair trial &c. is not enough ; it ought to state the facts on which the belief is founded.</p>

This was an action of debt, brought upon a judgment rendered in the circuit court of the United States, for the district of Massachusetts.

This was an action on a policy of insurance, dated the 24th November, 1796, on the brig Jenny, at' and from New York to Cayenne, and at and from thence back to New York, with liberty to touch at Jacquemel. The policy was in the usual form without any warranty. The cause was tried at the circuit in New York, in November, 1799, when the jury found a special verdict.

This was an action on a policy of insurance, on the freight of the “American ship, called the Astrea, from New York to Corunna.” The cause was tried at the last March circuit, in the city of New York, when a verdict was taken for the plaintiff, for 4365 dollars and 6 cents, subject to the opinion of the court, on the following case, which it was agreed either party might turn into a special verdict.

This was an action on a policy of insurance, on the “American brig, called the Mary,” from New York to a port in Jamaica. The cause was tried, at the last March circuit in New York, before Mr. Justice Radcliff, when the jury found a special verdict. The material facts are the following : John Bazing, a citizen of the United States, was sole owner of the brig, which was duly registered as an American vessel.

These were actions on three different policies of insurance : one on the vessel, another on the cargo, and the other on the freight. The first cause was tried at the December circuit, before Mr. Justice Radcliff, and a verdict was found for the plaintiff for a total loss, subject to the opinion of the court on a case, the principal facts of which apply equally to all the i am es.

This was an action on a policy of insurance on goods, on board of the American brig, the Columbia, from New York to Amsterdam, dated the 21st of June, 1798, at a premium of 17^ per cent. The cause was tried on the 26th of March, 1800, at the New York circuit; and a verdict was taken for the plaintiffs, subject to the opinion of the court, on the following case, which it was agreed might he changed into a special verdict, by either party. The property was warranted American.

<p>This was an action on a policy of insurance, on the ship Oneida, from New York to London, warranted American property, proof of which, if required, to be made in New York. The policy was dated the 1st of November, 1796, when the ship was owned by the plaintiff, a natural bom citizen of the United States. Afterwards, on the 29th of April, 1797, and before the vessel sailed on the voyage insured, the plaintiff sold and transferred her to James Jackson, a British subject; but who became a naturalized citizen of the United States on the 6th of April, 1797. The Oneida set sail from New York on the 3d of May, 1797, and was captured on the 25th of the same month, by a French privateer, and carried into Nantz, and there condemned. The grounds of *the condemnation as they appeared from the proces verbal, were ¡</p> <p>1. The want of a role d) equipage, as required by the French regulations of 1704, 1744 and 1778 :</p> <p>2. That the manifest was not signed by a public officer:</p> <p>3. That James Jackson confessed himself to have been born in England, and did prove his naturalization in the United States.</p> <p>The principal reason, however, was the want of a role d’ equipage, and the court adjudged “ the ship good prize, as belonging to the enemies of the republic, for want of regularity in the sea papers.”</p> <p>The sentence of condemnation was confirmed on an appeal. The ship was duly abandoned to the defendants.</p> <p>At the trial, at the November circuit, 1799, in New York, a verdict was taken for the plaintiff, subject to the opinion of the court on a case containing the above facts.</p>

This was an action of debt. The declaration was on a single bill, for 1785 dollars and 85 cents, dated the 18th of July, 1793. The defendant pleaded, 1, Non est factum. 2. Payment. 3.

<p>This was an action of assumpsit. The plaintiff declared on a promissory note, drawn by Blackwell and Hallett, in favor of Arnold and Ramsay, and indorsed by them to the plaintiff. The cause was tried at the last March sittings, in New York, before the chief justice.</p> <p>The signature of Blackwell and Hallett was proved to be in the hand-writing of Hallett. The defence set up, was, that the note, after it had been made and issued, had been altered, in the date, and by changing three hundred into thirteen hundred dollars. To support this defence, the defendant offered to prove, 1. That former notes drawn and indorsed by the parties, “and to take up one of which the present note was made, had been altered; 2. A written memorandum made by his deceased partner, of the amount of the note, as actually made; 3. The alterations apparent on the note itself, from which the jury might decide whether the note had been altered or not; but the judge overruled the evidence offered, and charged the jury, lhat the mere appearance of alterations on the face of the note, unaided by any proof as to the character of the persons through whose hands it had passed, was not sufficient to support the defence set up, The jury, accordingly, found a verdict for the plaintiff, for the full amount on the face of the note, with interest.</p> <p>A motion was made to set aside the verdict, and fora new trial.</p>

This was a suit for a legacy. At the last Columbia circuit, a verdict was. taken for the plaintiff, subject to the opinion of the court on the following case: Anthony Hoffman, by his last will, dated the 6th of February, 1784, devised to his son, Nicholas, all his lands lying in the county of Dutchess, and to his heirs forever; and after giving an annuity to his wife, the testator added, “ it is my will and desire, that my said son, Nicholas, his heirs or assigns, should…

This was an action of covenant, brought on the covenant of seisin, contained in a deed of bargain and sale, executed by the defendant to the plaintiff, for certain lands in the county of Columbia.

This was an action of debt, on a bond. The defendant craved oyer of the condition of the bond, which was, that if Moulton, then confined in the jail of the county of Rensselaer, in the custody of the plaintiff, as sheriff, on a ca. sa. at the suit of Elisha White, &c. should remain a true and faithful prisoner, within the liberties of the jail, &c. They then pleaded, 1. Non est factum; 2. That the defendant did remain a true and faithful prisoner within the liberties, &c. 3.

This was an action of assumpsit. The defendant pleaded non assumpsit, and payment, with a notice of set-off. The cause was referred, by consent, and the referees reported a balance in favor of the plaintiffs, for eight dollars and forty cents.

This was an action on the case, brought by the plaintiff, as the endorsee of a promissory note, against the defendant, as the maker, and was tried at a circuit court, held in the city of New York, on the 9th day of April, 1800, before Mr. Ch. J. Lansing.

Foot, for the plaintiff, moved for a rule on the judges of the court of common pleas of the county of Rensselaer, to show cause why a mandamus should not issue, to compel them to give judgment in this cause. It appeared that a verdict had been found for the plaintiff, and that the common pleas had arrested the judgment for the insufficiency of the declaration.

Issue was joined in this cause, in February term last, and in April term the plaintiff stipulated to try the cause at the next circuit, which was held in July last: but did not bring on the cause to trial, though younger issues were tried.

<p>Where a material witness for the plaintiff unexpectedly went abroad, so that he could not be subpoenaed at the trial, it was held a sufficient excuse for the plaintiff, for not proceeding to trial pursuant to his stipulation.</p>

A verdict having been taken for the plaintiff in this cause, subject to the opinion of the court, on a case made ; a question was raised by the counsel, which of them was to open the argument, on the molion for a new trial.

In the writ and declaration in this cause, the damages were laid at 600 dollars. The defendant was in custody, and filed a cognovit for 600 dollars.

<p>If the principal be surrendered, pending the suit by scire facias, against the bail, an exoneretur will not be allowed, until the costs of the proceedings against bail are paid.</p>

<p>A rule regularly obtained, in absence of the counsel for the other party, will not be vacated at a subsequent term.</p>

Tan Techten, in behalf of the defendant, moved for his discharge from the arrest in this cause. The defendant is a member of congress, and was arrested, while travelling, about ten days after he had left home.

This was an action of ejectment. The cause was tried at the Montgomery circuit, in June, 1800, before Mr. Justice Radcliff. A verdict was taken for the plaintiffs, subject to the opinion of the court, on the following case. The heirs of Sir Peter Warren, were three daughters, to wit, Ann, married to Lord Southampton, the lessors, Charlotte, married to Lord Abingdon, and Susanna, married to General Skinner. All the heirs resided in Great Britain during the American war.

Wood, for the plaintiff, moved to set aside the report of the referees in this cause. From the affidavits, it appeared, that the cause was referred, at the instance of the defendants, who agreed to admit certain items in the plaintiff’s account, which, at the hearing before the referees, they refused to admit. The plaintiff’s attorney then requested an adjournment until the next day, in order that he might produce witnesses to prove the items.

<p>Woods, for the defendant, moved to set aside the verdict in this cause. At the last circuit in New York, an inquest was taken by default, in the absence of the defendant’s attorney. The plaintiff, by his affidavit, staled that the debt was not due when the suit was commenced ; though it was now due.</p>

<p>Where a judge’s order was obtained to enlarge the time for pleading until the second day of the term, the defendant had until the next day to plead, and a default entered on the second day was irregular.</p> <p>After a rule to change the venue, the plaintiff entered a default for want of a plea, without altering the declaration filed, or filing a new declaration and delivering a copy ; and it was held irregular.</p>

The defendant obtained a judgment against White and Stout, on a policy of insurance, subscribed by them as partners. They became partners, as insurers, on the 29th February, 1796, and the partnership was dissolved on the 9th December following.

This was an action on a policy of insurance on goods shipped on board the schooner Mary, on a voyage from New York to the island of St. Thomas. The schooner sailed from New York on the voyage insured, the 12th May, 1799. On the 14th May, the wind blowing fresh, she sprang a leak, in consequence of which the master, for the preservation of the lives of the crew, was obliged to put into Bermuda, which was the nearest port, where the vessel arrived on the 26lh May.

<p>An adjustment of loss endorsed on a policy of insurance, and signed by the insurer, is not conclusive ; and the party may show, that it was made on the misrepresentation of the insured ; and whether such misrepresentation proceeded from design or mistake, makes no difference.</p> <p>If a person proceeds upon the information of another to do an act in his favor, the person in whose favor the act is to be done, is bound, at his peril, to see that the information given is correct.</p>

This was an action of assumpsit, on a promissory note, made by the defendant, to the intestate, dated the 17th December, 1777, for 100 pounds, payable on demand. The defendant pleaded, 1. Non assumpsit; 2. Non assumpsit infra sex annos ; 3.

• This was an action of debt, on a bond for 900 dollars, dated 17th May, 1798, given to the plaintiff, as sheriff of the county of Rensselaer. The declaration was in the usual form. The defendants pleaded, 1. Non est factum; 2.

This was an action on a policy of insurance on goods, from New Orleans to New York. The vessel, during the voyage, was captured and carried into New Providence, and, after having been detained 56 days, was acquitted.

This was an action on a policy of insurance, on the cargo of the schooner Venelia, from New York to Port au Prince, French risks excepted. The vessel was captured the 10th July, 1798, by a French privateer, in whose possession she remained until the 14th July, when she was recaptured by a British frigate. She was libelled in the vice-admiralty court of Jamaica, as the property of French subjects.

<p>An insurance on the vessel will not cover a bottomry interest, unless it is expressly mentioned in the policy.</p> <p>Where a bottomry bond executed by the master, after the usual recital and clause hypothecating the vessel for the payment of the money advanced, contained the following clause: “ And for the better performance of all the covenants and agreements herein contained, I, the said N. B.” (the obligor) “ for the consideration aforesaid do grant, bargain and sell the said ship, John, and premises to the said G. R.” (the obligee) “ his executors,” &c. with the usual proviso, that on payment, &c., the whole was to be void : it was held, that these words did not destroy the character or operation of the bond.</p>

This was a special action on the case, brought to recover back the purchase-money of a negro slave, sold by the defendant’s testator to the plaintiff. A verdict was found for the plaintiff, subject to the opinion of the court, on the following case.

This was an action of debt, on a judgment of the supreme court of the state of Pennsylvania. The defendant, pleaded nil debet, and payment.

<p>Where the plaintiff, after he had assigned a judgment to a third person, and given notice to the defendant of such assignment, entered up satisfaction on the record ; it was held, that the entry of the satisfaction was fraudulent and void, and it was ordered to be vacated.(a)</p> <p>The proper way to try the truth of the allegation of usury, in regard to a judgment, entered upon a bond and warrant of attorney, is to retain the judgment, and award a feigned issue to try the fact: but where the judgment had been assigned to a bona fide purchaser, and notice thereof given ¡ to the defendant, the court refused to award an issue, considering a judgment as not within the words of the statute against usury, and having reason to suspect a collusion between the plaintiff and the defendant, to defeat the claims of the assignee of the judgment.</p> <p>An application for a feigned issue, is to the sound discretion of the court; and it is awarded only for the information of the court, or where the party is otherwise without relief; and where the defendant alleged payment to the plaintiff, made by him, on a judgment which had been assigned to a third person, the court, on motion for that purpose, refused to award an issue,-to try the truth and validity of the payment; but left the party to his remedy by audita querela, as the time when the defendant received notice of the assignment was contested; though the court might, if they had thought proper, have stayed execution on the judgment, until it was revived by scire facias, or by an action of debt, when' the plaintiff might plead the payments.</p>

T-his was an action on a policy of insurance on the cargo of the brig Essex. The vessel was captured upon the voyage insured, which was from Charleston to Surinam, and was carried into Demarara, by a British frigate, where she arrived on the 8th of June, and continued with her cargo, in the hands of the captors, until the 18th of June, when the brig and cargo were released without having been libelled.

This was an action of ejectment. It was proved at the trial, that the lessor of the plaintiff by the name of Joshua Temple De St. Croix, was seised and possessed of the premises in question, from the year 1766 to 1782, having purchased the property in 1766.

This was an action of debt, on a bond, dated the 12th April, 1796, for 70/. The plaintiff, in the declaration, declared the 70Z. to be of the value of 175 dollars, lawful money of this state, which the defendant owes aud detains ; and that the defendant bound himself in the said 70/.

<p>The court of sessions has power to discharge a jury, without the consent of the prisoner, in case of an indictment for a misdemeanor; but the power rests in sound discretion, and ought to be exercised with caution.</p> <p>Where a jury could not agree on a verdict, after being out all night, and part of a day, and the court discharged them, without the consent of the party, the discharge was held to be proper, and the'prisoner was again arraigned, on the indictment, for the same offence.</p>

• An attachment having issued against certain persons, under the description of the American Iron Company, or Ring-wood Company,Peter Goelet, Robert Morris and William Pop-ham, were appointed trustees, pursuant to. the act for relief against absconding or absent debtors. The trustees sold all the right, title and interest of the Company to certain lands at public auction, and three of the lots were conveyed by the trustees to John B. Murray.

The defendant was nonsuited in a cause, at the October circuit, 1799, and a judgment of nonsuit was entered, in January term, 1800, against him as plaintiff. A motion was made, on a case stated, in October term, 1800, to set aside the nonsuit, which was denied. On the 24th Novemher, 1800, Whitaker was discharged, *under the insolvent act, the 14th November, 1800.

Wortman, for the defendants, moved to set aside the judgment in this cause, and the warrant of attorney on which it was entered, on the ground of usury. He read several affidavits to prove the usury. He cited 4 Term Rep. 500. 3 Bro. C. 0. 603, 604. 2 Ves. jun. 154. Plowd. on Usury, 149.

<p>Where the attorney for the defendant suffered an inquest to be taken by default at the sittings, supposing there was no defence, the court refused to set aside the default, to let the defendant in, to show usury ás a defence.</p>

C. I. Bogert moved that an exoneretur be entered on the bail-piece in this cause, or that all proceedings against the bail be discharged. The principal had been declared a bankrupt in Rhode Island, under the law of the United States, and was served with a notice to surrender on the 25th April instant. On the 15th April he was arrested here on a ca. sa. and discharged. Bogert cited the 22d section of the law. (Laws U. S. vol. 5, p. 45. 6 Cong. 1 sess. c. 19.)

<p>Thebe was a demurrer to the plea, in this cause, which the court, at the last term, decided was not well taken.</p>

An application, in behalf of the defendants, was made, in October term, which was within the time for making the motion for a commission to Porto Bello, in South America ; but as the affidavit did not mention the names of the witnesses to be examined, the motion was denied.

<p>Where a judgment by default was regularly obtained against an administratrix, she was allowed to come in and plead, upon showing a sufficient excuse ; but the judgment was directed to stand as security for the assets remaining after payment of prior judgments confessed, and for assets quando acciderint.</p>

S. Jones, jun. moved to set aside the default entered in this cause, for want of a plea, on the ground of irregularity. It appeared that Malcolm had given notice of being concerned as attorney for the defendant; but no copy of the declaration, or notice of the rule to plead, had been served on him.

This was an action on a policy of insurance, on goods, from North Carolina to Martinique. At the foot of the policy, was the following memorandum : “ It is agreed, that salt, grain of all kinds, Indian meal, fruits, cheese, dried fish, vegetables and roots, and all other articles perishable in their own nature, are warranted by the assured, free from average, unless general.” The cargo consisted of pickled fish, peas and other articles.

This was an action of assumpsit, on a promissory note, brought by Richard M. Wood hull, in the name of Butter-worth, the present plaintiff. It appeared that Butterworth never was either the payee or holder of the note, nor in any way interested therein ; and that Woodhull never had any authority to bring the suit in his name, and that the plaintiff knew nothing of the suit. The plaintiff was nonsuited at the last circuit.

This was an action for slander. The plaintiff not having declared within two terms, the defendant entered his default in the book of common rules, and afterwards entered a judgment, of non pros thereon, without a rule' or notice to declare.

This was an action of scire facias, on recognizance of bail, in which the defendant is described as “ Elnathan Noble, of the town of Pittsfield, yeoman.” ' The defendant pleaded, that another person of the same name and description became bail, and traversed that the defendant is the same person. The plaintiff replied that the defendant and the person described in the recognizance of bail are the same person, and issue was joined thereon.

This was an action on a policy of insurance, dated 23d May, 1799, on goods, on board the sloop Two Friends, “ at, and from New York to Barraeoa, with liberty to touch at one or two ports on the north side of Cuba.” The adventure was to continue until the goods *were safely landed at Barraeoa, and one or two ports on the north side of Cuba.” The premium was twelve and a half per cent., to return two and a half per cent, if the voyage ended at Barraeoa.

<p>The prisoner being brought into this court by habeas corpus, a motion was made that he should be discharged upon the following statement of facts.</p> <p>The prisoner and Henry Aborn were indicted at the New York oyer and terminer, in November last, for that they and Solomon Roe had conspired to defraud the Bank of New York of money. Roe was dead when the indictment was found. The prisoner and Aborn were brought to trial at the same court, and the latter acquitted.; and with respect to OItsott, the jury, after having remained out a long time, to wit, from about 8 o’clock on Saturday evening till near 2 o’clock the next day ; and, coming into court two or three times for information and advice, agreed on the following verdict:— “ That there was an agreement between Roe and the prisoner to obtain money from the Bank of New York, but with intent to return it again;” This verdict the court considered as imperfect, and refused to receive it. The court then asked the jury if there was any prospect of their agreeing on a general verdict of guilty or not guilty, and the foremen said, “ No.” They were then asked if they could agree to find a special verdict, stating the procuring the money from the bank, in the manner stated in the indictment, except as to the intent therein charged, to defraud the bank, and leave that intent, as an inference of law, to the court; and the foreman said, “ No.” They were then asked whether they would agree to a special verdict, finding the conspiring as charged, excepting the intent to defraud, &c., and with this additional fact, that they intended to return the money again ; and the foreman answered *again in the negative; whereupon the court, without the consent of the prisoner, ordered a juror to withdraw, and the rest being called, and only eleven answering, they were discharged.</p> <p>The counsel for the prisoner contended that he ought to be discharged, on three grounds.</p> <p>1. Because the prisoner, being once put on his trial, and the jury not being able to agree on a perfect verdict, and being discharged by the court against the consent of the prisoner, he cannot be again brought to trial.</p> <p>2. Because the conviction of two persons is requisite to constitute the crime of conspiracy, and Aborn being acquitted, and Roe being dead, the prisoner cannot legally be convicted.</p> <p>3. Because the verdict offered was a competent verdict of acquittal, and ought to have been received.</p>

<p>Tma was an action of debt, on a judgment obtained in the circuit court of the United States, for the district of Massachusetts.</p> <p>The plea stated that the record of the judgment was removed into the supreme court of the United States, by writ of error; according to law, wherefore, the defendant prayed judgment, &c. To this plea there was a general demurrer and joinder.</p>

This was an action of ejectment for land, in Goshen, in the county of Orange. The following facts appeared from the special verdict, found at the circuit. Thomas Beach, being seised of the premises in question, on the 18th May, 1795, made his last will and testament, as follows: “ I give my loving wife, Martha Beach, the use and benefit of the house I now live in, and all my lands and tenements, lying in the county of Orange, aforesaid, during her natural life.

This was an action of assumpsit on two promissory notes. Plea non assumpsit. At the trial the defendant set lip the defence of usury. The trial commenced on Thursday, and lasted till Friday evening,.and many witnesses were examined on both sides, and a verdict was found for the plaintiff. A motion was made on the part of the defendant for anew trial, on the ground of a refusal by the court to permit a witness offered by the defendant to be examined.

This was an action of ejectment for lands in the town of Jerusalem, in the county of Ontario. The declaration stated, 1. A demise, by William Potter, for lot No. 16 in the gore land granted by letters patent to James Parker, William Potter and Thomas Hathaway, and their associates; 2. A demise by the above three persons, and five others.

<p>A. the master of a vessel, directed B. as his agent, to get his commissions as master insured, and C. the broker, had the policy effected in the name .of B. on the commissions of the master, who was named in the policy, and the agency of B. was known to the broker. A total loss having been .recovered by the broker, A. brought an action against him for the amount of the money received ; and it was held that the broker had no right to retain it for a debt to him from B. the agent.</p> <p>If, however, B. had acted as the ostensible principal, C. would have been entitled to consider him as such, and to regulate his claims accordingly. Per Kent) J.</p>

This was an action of assumpsit for a return of premium on a policy of insurance. • In December, 1796, Gouverneur and Kemble, as agents for the plaintiff, effected an insurance on the cargo of the ship George and Patty Washington, to the amount of 25,000 dollars, interest as may appear, at and from Calcutta to Baltimore; and the defendants accordingly underwrote the policy to the amount of $25,000 on the cargo generally, in the name of the agents.

This action was brought for a return of premium. At the trial, a verdict was found for the plaintiffs, subject to the opinion of the court, on a case ; and if the court should be of opinion against the plaintiffs, a judgment of nonsuit was to be entered. The plaintiffs chartered the ship Three Sisters to bring a cargo of wines from the Spanish Main to New York; and had insured, by a valued policy, 12,000 dollars on goods for the voyage.

<p>This was an action of assumpsit, for the use and occupation of certain premises at Brooklyn, in King’s county. The venue was laid in New York, and the defendants moved to change it to Kings. 1. Because, from the declaration, it appeared that the cause of action arose in that county ; and the action, in its nature, is local. 2. Because a fair and impartial trial cannot be had in New York.</p>

Strong, for the plaintiff, moved for leave to amend the capias and declaration in this cause, by adding the name of another defendant. After the writ was issued against the present defendants, the plaintiff’s attorney discovered that • T. D. was a partner with them ; and thereupon issued a writ against him to answer together with the present defendants. The first writ was returnable in January term, and the other in April term last.

This was an action by an endorsee against an endorsor of a promissory note. At the trial, the note in question was produced ; which was for 1216 dollars and 50 *cents. At the bottom of the note, were the figures 1216 dollars and 52 cents; and the notary, in the notice given by him to the endorsor, of the non-payment, had expressed the latter sum. It was objected, that the notice did not refer to the same note.

The declaration in this cause was against the defendants jointly on a bond to the sheriff.

This was a suit on a bail-bond, in which judgment was obtained. The original suit was on a bond conditioned for the payment of money.

<p>The prisoner was convicted of forging and uttering an order for the payment of money. The paper set forth in the indictment was as follows: “ New-Port, 15th July, 1801. Captain Godfrey, sir, The bearer, Mr. Richardson, being our particular friend, who has occasion to proceed from New York to Philadelphia, we have requested him to call on you, desiring you to accept his draft on us, on demand, for fifteen dollars ; your compliance will much oblige, sir,</p> <p>Your humble servants,</p> <p>Gibbs and Channing.”</p>

George Peters, a Brothertown Indian, was convicted at the last oyer and terminer, held in Oneida county, of the murder of his wife, who was also an Indian. The murder was committed in the village of Rome. The Brothertown Indians reside in the town of Paris ; and the teacher of the tribe attended at the trial. The question submitted to the consideration of the court was, whether the prisoner was amenable to the laws of this state for the crime.

This was an action of debt, for several penalties alleged to be incurred under the act to lay a duty of excise on strong liquors, and for the better regulating inns and taverns. The defendant, on the 8th day of April, 1799, applied to the plaintiff, who was supervisor of the town of Ballstown, .and two justices, White and Waters, then sitting as commis* sioners under the act, for a license to retail spirituous liquors, for the purpose, of keeping *an inn or tavern.

This was an action of ejectment for lands in the county of Otsego. The lessor of the plaintiff claimed the premises in question, which lie in the county of Otsego, as being within the bounds of the patent of Springfield ; and the case turned on the construction of that patent.

<p>Where A., who had been many years in possession of land under B , the supposed proprietor, applied afterwards to C. as the real owner, to purchase, and requested to be considered as tenant; in an action of ejectment by C. against A. it was held, that A. might show that he made the application under a mistake, and prove a title out of C. though he could not set up an adverse possession of twenty years.</p> <p>A. was not tenant to C. so as to be entitled to a notice to quit.</p>

This was an action of assumpsit on three promissory notes. The defendant pleaded usury.

This was a special action on the case, on a bill of lading signed by the defendant, as master of the schooner Dove, at New York, on the 31st January, 1799, in which he acknowledged the receipt of four cases of merchandize to be delivered to Najah Taylor, or his assigns, at Norfolk, in Virginia, and which the plaintiff averred had not been delivered.

This was an action of assumpsit for goods sold and delivered. The evidence was, that the account rendered to the defendant, and a letter demanding payment, were in the name of William Bernard & Son.

<p>A. died intestate, ¡eating a widow and seven children, who were all minors, in 1784, except one. A suit having been commenced in 1783, against the widow, as tenant in possession, under a lease for lives, the administrator, in 1784, after advising with counsel, and With the consent of the widow, and one of the heirs, who was of age, surrendered the lease, supposing it to be forfeited, for 750 dollars, though, in fact, it was worth a much larger sum. As no release or conveyance was executed by the administrator, the heirs afterwards brought an action of ejectment in the name of the administrator, to recover the possession of the leasehold estate ; and the administrator, in 1799, executed a release of the estate, and also of the action, in consideration of the 750 dollars, before received, though he then believed that the'property belonged to the heirs, and was not forfeited.</p> <p>In an action brought on the administration bond, alleging a devastavit, it was held, that the administrator was justifiable in surrendering the lease, in 1784, in the manner he did, under the circumstances ; but that, in 1799, when he was satisfied that he had acted under a mistake, he ought not to have executed a release of the estate, and of the action brought for the benefit of the heirs, but have left the lessor to resort to chancery to enforce the contract; and, on this ground, he was chargeable with a devastavit, for the difference between the sum received on the surrender, and the real value of the estate.</p>

<p>This was an action on a judgment in the Washington court of common pleas, and the venue was laid in Albany.</p>

This cause came before the court, on a writ of error from the Albany common pleas. The executors of Campbell brought an action of assumpsit in the court below, for work and labor done by the testator; the plea was the general issue.

This was an action of ejectment for lands in the city of New York. The jury found a special verdict.

<p>An indictment for a forcible entry and detainer before two justices, having been removed by certiorari to this court, the defendants were served with a notice of a rule to assign errors in twenty days, and no assignment being made, a judgment by default was entered ; and the defendants after-wards filed their plea. It was held, that the rule to assign errors was a nullity, and the judgment and all subsequent proceedings were set aside for irregularity.</p> <p>The landlord may be let In to defend, in an action for a forcible entry and detainer, as well as in ejectment.</p>

<p>A reference of a cause will not be granted, if it appears that law questions will arise.</p>

Boyd, in behalf of Phoenix, bail for the defendant, moved that an exoneretur he entered on the bail-piece in this cause, the defendant having obtained his certificate of discharge under the bankrupt law of the United States, of the 5th April, 1800. The suit was commenced the 7th November, 1800; judgment was obtained, and a ca. sa. was issued, which was returned non est inventus the 21st July last.

Yan Yeciiten moved to set aside the judgment and execution in this cause, and for the costs of this action, in favor of the defendant. It was an action of debt on a bond, with a penalty, conditioned for the performance of covenants. The defendant pleaded performance, and at the trial the jury gave a verdict for site cents damages. A judgment was entered for the penalty with full costs, and execution issued to levy the six cents, with the full costs.

Pendleton, for the defendant, moved that all further proceedings in this cause be stayed; that the cause be removed to the circuit court of the United States, and the bail discharged. He read the defendant’s petition and affidavit.

The plaintiff recovered 250 dollars debt, on a single bill, and also damages, for the detention, including interest as costs. The question was whether he was entitled to full costs.

This was an action on the case, brought upon a contract as follows: “ Whereas the bank of New York has agreed to lend the committee appointed to superintend the building of a new theatre, a sum not exceeding 25,000 dollars, for nine months, at the interest of six per cent, for the purpose of completing the theatre, on condition that satisfactory security be given for the repayment of the said loan : we, the subscribers, wishing to facilitate the completion of the said…

This was an action of trover for goods shipped by one of the plaintiffs, residing in London, on board of the ship Factor, of which the defendant was master, for New York. The ship arrived at New York on the 22d of December, 1799, and on the next' day the consignee assigned the bill of lading to the plaintiffs, who are partners, some of whom reside in New York.

<p>The executors of S. filed a bill in chancery against W. setting forth that W. had commenced a suit at law against them for a debt pretended to he due from the testator, of which they had no knowledge, and which they had strong ground to believe was unjust, and that they could not safely proceed to trial without a discovery from W. of all the facts relative to the origin and state of such pretended debt, and praying for an answer and an injunction. An injunction was allowed by one of the masters of the court of chancery, which, afterwards, was ordered, by the chancellor, to be dissolved ; and on an appeal from this order, it was held that the bill did not con- • tain sufficient equity to entitle the plaintiff to a discovery, and that the order for the injunction was properly dissolved.</p> <p>The court of chancery will not enforce a discovery unless the party calling therefor will state some material matter of fact which he wishes to substantiate by the confession of the other party. Per Kent, J.</p>

On the 6th May, 1799, the appellants filed their bill in the court of chancery against the respondents, setting forth, among other things, that the Connecticut Susquehannah *Company claim title to a tract of land, commonly called the Connecticut Susquehannah Company Purchase, situate in the counties of Northumberland, Northampton and Luzerne, in the commonwealth of Pennsylvania, and within and under the jurisdiction of the said commonwealth ; that the claim of the state of…

The respondent, in October, 1797, commenced a suit -in tbe supreme court of this state, agaiust the appellants, in the name of Hezekiah B. Pierpont, to recover to the use of the respondent tbe value of 15 half shares of ‘the national bank stock of the United States, due on an instrument of writing, given by the appellants to Pierpont, which the respondent had endorsed at the instance and request of the appellants, as their guarantee.

Henry C. Bogart. Robert Ray and Daniel Stiles, sometime in the year 1757 entered into partnership for the purpose of merchandising and distilling. It was virtually-agreed between them, that they should equally divide the profits, and bear the loss arising from the business. Robert Ray conducted the business in his own name, for the account of the partnership, from the commencement of the firm until the 13th October, 1773.

<p>In the year 1796, the respondents, Isaac Gouverneur and Peter Kemble, together with Joseph Gouverneur, (since deceased, who. by his last will, appointed Isaac Gouverneur and Joseph Gouverneur his executors,) commenced an action of ejectment in the supreme court, to recover from the appellant a house and lot of ground in the city of New York.</p> <p>■ After the cause was ready for trial, the appellant filed his hill in chancery, stating that in August, 1795, Gouverneur and Kemble, partners in trade, and pretending to be duly authorized by Joseph Gouverneur, (who was then absent beyond seas,) made a proposal in writing, and afterwards agreed with Robert Murray, partner of the house of Robert Murray & Co. for the .sale of a house and lot to the said Robert Murray & Co. for the sum of 10,000 dollars, the one-half to be paid in January, 1796, and the remaining half in May, 1797. Immediate possession was to be given to Robert Murray ; and on making the first payment, a deed was to be executed to the said Robert Murray & Co. who were to give a mortgage to secure the second payment. In pursuance *of this agreement, Robert Murray was put in possession of the premises, and continued in possession until he sold them to the appellant. The time of the first payment was postponed by mutual consent. In January, 1796, Gouverneur and Kemble, on their own account, purchased of Robert Murray & Co. bills of exchange on London to the amount of 25,000 dollars, and in paying for the same, deducted the first instalment of 5000 dollars due for the house and lot, and gave a receipt for the same, as the first instalment. Robert Murray did not then demand a conveyance for the house and lot, nor did Gouverneur and Kemble offer to give it.</p> <p>On the 12th August, 1796, the appellant purchased of Robert Murray & Co. for 5000 dollars, all the right and interest in the said house and lot, and took possession thereof. He afterwards applied to Isaac Gouverneur and Joseph Gouverneur in October, 1796, for a fulfilment of the contract of sale, who made no answer to the application ; but brought an action of ejectment against him, on which the appellant filed his bill in chancery, praying an injunction to stay the suit at law, and that the respondents should be decreed to execute to the appellants a good and sufficient deed for the premises, pursuant to the agreement.</p> <p>Isaac Gouverneur, in his answer, stated, that he never pretended to have a power of attorney from Joseph Gouverneur, but had directions from him to sell the premises, in consequence of which he made the agreement with Robert Murray & Co. for the sale of the premises, and delivered the possession to Robert Murray, in 1795; that when the bills of exchange were purchased, the 5000 dollars deducted, was to be considered as on account of the purchase money for the premises, if the bills were duly paid ; that the bills were accepted, but not paid, and that notice of the non-payment was given to Robert Murray & Co. and that he believed that Robert Murray & Co. had no effects in the hands *of the drawees, when the bills were drawn. Joseph Gouverneur stated, that he did not give Gouverneur and Kemble any letter of attorney to sell the house and lot, but merely directed them to sell the premises, as above stated.</p> <p>The respondents, Gouverneur and Kemble, also stated, that they did not agree to accept the notes of Robert Murray & Co. for the first instalment; and that the deed for the house and lot was not to be given until the bills were paid. and the second instalment also paid, and lhat they did not agree to take a mortgage for the second payment.</p> <p>Robert Murray & Co were in full credit in January, 1796, but some of their bills were protested in May following, and in July they stopped payment.</p> <p>The appellant had expended, prior to the 12th August, 1796, 600 dollars in repairs on the house, and a further sum after that lime. <</p> <p>After hearing the cause, the chancellor decreed, that the appellant should pay to the defendants 10,000 dollars, with interest, to be ascertained by a master, and on payment thereof, the respondents should execute a conveyance to the appellant for the premises in question, and that unless this was done in 20 days, the injunction should be dissolved. The master reported the interest to be 2345 dollars and 97 cents.</p> <p>From this decree and order, the appellant entered an appeal to this court.</p>

This cause came before the court on a writ of error from the supreme court. For the facts in the case, and the opinion of the court below, see ante, pp. 127 — 168. Yan Vechten, Senator. Held: that if it appear upon the evidence, that the ship insured was seized and condemned by process of law, by the sentence *the property and ownership are destroyed, and there is no remedy on the policy.

This cause came before the court on a writ of error from the supreme court. For the facts in the cause, and the opinion of the court, see ante, pp. 180 — 191.

This cause was brought before the court, by writ of error from the supreme court. For the facts in the cause, and the opinion of the court below, see 1 Johns. Cas. 360. *'

<p>In an action on a policy of insurance, the words condemned as lawful prize in the sentence of a court of admiralty' affords no necessary inference that the vessel was enemy’s property; and such sentences are not conclusive evidence of the fact.</p>

<p>A subject of Great Britain domiciled in New York, and engaged in trade from the United States with the enemies of Great Britain, is considered as a citizen of the United States in regard to such trade, which is not within the clause in the policy of insurance by which the property is warranted by the assured free from any charge, &e. in consequence of a seizure or detention for or on account of any illicit or prohibited trade, &c.</p> <p>A sentence of a court of admiralty is only prima, facie evidence of any fact, and will have no effect, if sufficient appears in the sentence to rebut the presumption of the existence of such fact.</p> <p>To constitute a breach of the warranty by the assured against seizure or detention on account of illicit or prohibited trade, &c. there must be an illicit or prohibited trade, in fact, existing. It is not sufficient that there has been a condemnation under pretext of such a trade.</p>

<p>Parol evidence of the contents of a letter of attorney, by the person to whom it was given, is admissible, if it is proved satisfactorily, that such power has been lost [without bad faith.]</p> <p>Upon the admission of such testimony, should the trial disclose evidence or reasonable grounds of suspicion of a suppression of the instrument, of mala fides in the person offering the testimony, or should the evidence of its existence and legal efficacy not be clear and satisfactory, it will become the duty of the judge to direct and charge the jury for the defendant. Per Gold, Senator.</p>