Volume 2 — Wendell's New York Reports

Error from the supreme court. This cause came before the court on a bill of exceptions tendered and signed at the Saratoga circuit, in June, 1826, when the cause was tried before the Hon. Reuben Hyde Walworth, then judge of the fourth circuit, and a verdict found for the plaintiff.

Error from the supreme court. The action in the court below was assumpsit for a total loss on a policy of insurance. The cause was tried at the New-York circuit, and a verdict rendered for the plaintiff for $8000, subject to the opinion of the supreme court on a case to be made, with liberty to either party to turn it into a special verdict or bill of exceptions.

<p>Appeal from chancery. Charles Clarkson died in October, 1802, leaving a widow, and a daughter and two sons, his only children and heirs at law, the eldest of whom was not six years of age. On the day of his death, he made and published his last will and testament, whereby, after directing all his just debts and funeral charges to be paid, and giving to a sister a legacy of £500, he nominated and appointed Frederick De Peyster, Matthew Clarkson, sen. and Freeman Clarkson executors of his will, without making any farther disposition of his estate and effects. He died seized of a large real and personal estate. On the 19th October, 1802, the executors made and filed a renunciation in the surrogate’s office in favor of the widow and children of the testator’s residuary personal estate, after the payment of the debts and legacy. Frederick De Peyster and Freeman Clarkson, two of the executors, proved the will, and took upon themselves its execution. In December, 1802, the widow of Charles Clarkson also died, leaving a valuable real and personal estate, without other issue than the children above named. In the same month, Frederick De Peyster and Freeman Clarkson were appointed by the surrogate of Kings county guardians of the persons and estates of the infants, and became possessed of the real and personal property belonging to them, and received the rents and profits. On the 14th November, 1810, Freeman Clarkson, one of the executors and guardians, died, and shortly afterwards, his executors settled the accounts of his executorship and guardianship with Frederick De Peyster, and paid to him the balance found due on such settlement. In the month of August, •1822, the youngest son of Charles Clarkson attained the age of 21, when De Peyster, the surviving executor and guardian, was called on by the heirs for an account, &c. Not agreeing as to the liabilities of the executor, a bill in chancery was filed by Matthew Clarkson, jun., who had intermarried with the daughter, and by his wife, and by the two sons, David F, and John Clarkson, against Frederick De Peyster and Matthew Clarkson, the third executor, who was made -a nominal party.</p> <p>From the answer of the defendant, it appeared that from January, 1803, until January, 1823, a large balance, amounting, on an average, to a sum exceeding $5000, was annually left in the hands of the executors and guardians, and that after the death of Freeman Clarkson, one of the executors, no investments whatever were made of the monies so remaining on hand, but the same were used by the defendant, who stated in his answer, that knowing his own responsibility to be ample, and that there could be no danger of the loss of the monies,1 he deemed it more convenient, and, at least, equally safe, to keep them in his own hands; that he made no specific appropriation of them different from the use of his monies generally; and he averred he always intended to allow simple interest on them on a settlement with the heirs.</p> <p>It further appeared, that the defendant De Peyster, in his accounts rendered to his co-guardian, had charged the estate with the price of 36 shares of the stock of the Manhattan Company, as purchased by way of investment, although the . same had not, in fact, been purchased, and that he had sold out one hundred shares of the stock of the same company, and seventy of the Merchants’ Bank, which he held as guardian. He averred a readiness to make an investment to the amount of the 36 shares of stock, and to account for the dividends which would have been payable thereon,' or else to account for the price, with interest, from the time of its charge ; and as to the 100 shares of Manhattan stock and 70 Merchants’ bank shares, he offered either to re-place the shares, or to account for the actual proceeds of the sales, with interest, as the court might direct. Previous to the cause being brought to a hearing, the defendant, on the application of the complainants, was directed by the chancellor to re-place and transfer these stocks, (1 Hopkins, 274,) which was accordingly done.</p> <p>After the cause was heard on the pleadings and proofs, an ■ account was taken by a master, who reported a balance in favor of the complainants of $12,289 44; to which report the complainants excepted, but the defendant acquiesced. Before the exceptions were brought to argument, the complainants applied for an order without prejudice to their exceptions, that the balance reported by the master be paid over to them or brought into court. The order was granted that the sum reported, with the interest thereof, be brought into court, and invested to the credit of the cause. The money was brought in and invested in the public funds, and by a subsequent order, on the application of the complainants, the defendant was directed to pay to the complainants the amount thus brought into court, or, in default thereof, the assistant register was required to sell the stocks in which the same had been invested, and to pay the amount reported to the complainants. The defendant paid the amount deposited to the complainants, and presented his petition to the chancellor, stating that the stock in which the money deposited had been invested had been sold by the assistant register at a loss of $1180 76, and praying that so much might be paid into court by the complainants, to abide the further order of the court. Thepetitionwasopposedby the complainants, on the grounds: that they .were desirous to receive the money, instead of havIng the same paid into court; but that the defendant refused to pay it to them, unless they received the same in full satisfaction, and abandoned their exceptions ; and that they advised the investment of the funds in stock of a particular kind, which, if complied with, would have yielded a profit, instead of producing a loss, but that the defendant refused to consent to any arrangement. The petition was denied.</p> <p>The decree under which the account was taken, and the report of the master made, which was excepted to, was pronounced by the late Chancellor Sanford. In this decree, (the reasons for which may be seen in 1 Hopkins, 505,) it was, amongst other things, ordered, “ That the master do charge the defendant with simple interest on the balances of monies, if any, remaining from time to time in his hands, since the death of Charles Clarkson, (excepting such monies as have been used and employed by the said defendant, upon which profits have been made,) by computing.the same for each year on the yearly balances remaining as aforesaid in his hands, and carrying such interest for each year into a separate column.” The master, in pursuance of this order, in stating the account, charged the defendant with simple interest on the balances remaining in his hands from year to year, and with the simple interest of two certain bonds, (one executed by the defendant himself, in 1803, for $2500, and the other by one Hake, in 1811, for $2000, for which the defendant had become responsible,) and credited him with all payments made by him on account of the estate, and with his commissions as follows, viz. the half of one per cent, upon all monies received up to the time of Freeman Clarkson’s ■ death, and one per cent, upon all monies received since, and after making all just allowances, certified a balance against the defendant of $12,289 44.</p> <p>The complainants presented exceptions to this report, amongst which were the following: That the master had allowed all payments and expenditures to go entirely towards re^uc^on °f the principal monies, from time to time in the defendant’s hands, whereas such payments and expenditurcs ought in the first place to have been applied towards the interest due at the respective times when such payments and expenditures were made; that the master had charged the defendant with simple instead of compound interest on the bonds mentioned in the report; and that he had allowed the defendant commissions, &c. The exceptions were overruled, except in one particular not here noticed, and the report of the master confirmed with that exception, upon which the complainants entered an appeal to the court of errors; but a new chancellor (the Hon. Samuel Jones) having shortly afterwards been appointed, the appeal was discontinued, and a re-hearing applied for in the court of chancery, which was granted. On the 30th March, 1827, the cause having been re-heard, Chancellor Jones made an order referring back the report of the master, and directing, amongst other things, that in re-stating the account, the master should so re-state the same, “ as that the said defendant shall be charged with interest, not only on the annual balances, and on the two bonds mentioned in the said report, the one given by the defendant, the other by Samuel Hake, but also on all monies received by him during each year, from the dates of such receipts respectively, to the end of the year, deducting therefrom, except as hereinafter mentioned, the interest on all payments, of what nature or kind soever, from the respective dates thereof to the end of the year ; and that the interest which shall appear at the end of any year during the period of said account to be due from the defendant, be applied towards satisfying, in the first instance, as far as the same shall extend, and before resorting to the principal, any payments, including expenditures and investments thereafter made by the defendant, to or on account of the complainants, or their estate, but so nevertheless as not in any case to compute interest on interest; and to that end the master is hereby directed to carry into the said account the interest annually accruing on the said two bonds, on the 1st day of January in each year, until the principal was paid. And the said master is farther directed, during the first year of the said account, commencing on the 1st day of January, 1803, to compute interest on the respective receipts and payments by the defendant during the year, to the end thereof, and strike the balance of such interest, and carry the same into the column of simple interest, to be added to or deducted from the interest to be computed on the yearly balance of the principal monies, as the case may be; and such amount of interest, at the end of the year 1803, shall be deemed the fund out of which payments are made during the ensuing year or years, until the same is exhausted; and so from year to year until the termination of the account, except that no interest after the year 1803 is to be credited on payments made by the defendant, until such fund of interest as aforesaid shall first have been exhausted ; but as to any excess of payments, interest is to be computed thereon; and in case it shall so happen that at the expiration of any year, the balance of interest shall be found in favor of the defendant, then the same shall be applied towards diminishing the principal monies then due to the complainants, or the said estate. And in restating said account, the payment of $13,814 12, made under the order of the court since the date of the master’s report aforesaid, (and any other payments, if any, made under the order of the court not already credited the defendant,) is to be allowed the defendant, and the receipts and payments heretofore allowed by the master are to be deemed proved.</p> <p>The parties accordingly attended before the master, who, on the 1st May, 1827, reported that he had re-stated the accounts as directed by the last order, and that over and above the previous payments, there was a balance still due p&-ihe complainants, amounting on that day to $12,544, io wit, $10,296 98 for principal, and $2,241 02 for interest. To this report exceptions were taken on both sides, none of which were allowed. The opinion delivered by Chancellor Jones was as follows: (This opinion not being as yet published in the Chancery Reports, so that it can be referred to, is unavoidably inserted here.)</p>

The appellants filed a bill in chancery for a partition of the plain lands, marshes, meadows and beach comprised within the bounds of the town of Hemp-stead, as originally granted.

Error from the supreme court. Sarah Stakes, in July, 1821, commenced an action of trespass in the common pleas of New-York, against Samuel Campbell and Thomas Campbell, and declared against them, for that on the fourth of July, 1820, they drove a certain mare belonging to the plaintiff with such violence, and whipped and cruelly treated her in such manner, that she died. Samuel Campbell alone was taken on the process issued against the defendants.

Error from the supreme court. Terboss occupied a hotel, as the tenant of Williams, from February, 1816, until the 1st May, 1823, when he quit the possession, taking with him his furniture, leaving the sum of $1350 rent, unpaid. On the 29th May, 1823, Williams followed the property, and distrained the same for the rent in arrear.

Error from the supreme court. This was an action of trespass for the mesne profits of a lot in the town of Ovid in the county of Seneca. From the special verdict found by the jury, it appears there was a recovery by default in an action of ejectment in the name of James Jackson, on the demise of Peter Smith, against the casual ejector, and that Peter Combs was the tenant in possession.

Error from the supreme court. The action in this case was originally commenced in the Washington common pleas by Stevens against Safford. The plaintiff declared on a special agreement, whereby the defendant, in consideration of certain goods, wares and merchandizes, delivered to him by the plaintiff, promised to pay the costs of the defence of a suit prosecuted in the supreme court by one Min Safford against the plaintiff, and which suit had been discontinued.

<p>Error from the supreme court. Medcef Eden, the father of Joseph and Medcef Eden, the younger, was in possession of a house and lot in the city of New-Yorlc, the premises in question, as early as the year 1782 or 1783, by his tenants, who paid him rent until his decease in September, 1798. Shortly before his death, he made his will, devising portions of his real estate, including the premises in question, to his son Joseph, and other portions to his son Medcef; providing, Chat if either died without lawful issue, his part should go to the survivor: and appointed his wife executrix, and his two sons executors of his will. The tenant of the premises in question, at the decease of Medcef Eden, continued to hold under Joseph until May, 1802, when Joseph rented the premises to another tenant, Joseph died without issue in 1813, and in July, 1819, Medcef Eden, the younger, also died, leaving a will, by which he devised his whole real and personal estate to his wife, one of the lessors of the plaintiff, durante viduitate; remainder to John Pelletreau for life, with certain trusts in favor of the devisor’s children. Wood, 'the other lessor of the plaintiff, became the assignee of Medcef Eden, the younger, on his taking the benefit of the insolvent act in 1801. The action for the recovery of the premises was commenced in January, 1822, and tried at the New-York circuit in June, 1826, before the Hon. Ogden Edwards, one of the circuit judges.</p> <p>On the part of the defendants, the following evidence was adduced: A deed of the premises in question from Catharine Fine to John Bridgewater and wife, bearing date 7th October, 1767, the grantees under which deed were reputed the owners, and resided on the premises, until they went off with the British, on the evacuation of New-York, during the revolutionary war ; a mortgage, executed by Bridgewater and wife to Sheffield Howard, bearing date 15th August, 1768, to secure the payment of £100, with interest, in one year ; an assignment of that mortgage from Howard to Medcef Eden, the elder, for the consideration of £137 9. 8. bearing date 25th December, 1783; a further assignment of the same mortgage from Martha Eden, Joseph Eden and Medcef Eden, the wife and sons of Medcef Eden, senior, executrix and executors of his will, to Joseph Winter, bearing date . 1st September, 1804, by which not only the mortgage, the bond executed as a collateral security, and the monies due and to grow due thereon were transferred, but the same contained a release and conveyance of all the estate, right, title and interest of the assignors of, in and to the lot of ground covered by the mortgage. This assignment contained also a recital of the devise in fee from Medcef Eden, the elder, to JosephEden. It was not executed by the executrix, and from the evidence ad-t]llcecjj the jury found that the signature of Medeef Edm was a forgery, but the execution of the instrument by Joseph: ■ Eden was proved; a deed from Joseph Winter, as assignee of the mortgage under a foreclosure, to Robert Robinson, and a re-conveyance from Robinson to Winter, bearing date 30th and 31st March, 1805; a deed, with full covenants, from Joseph Winter to Samuel Boyd, for the consideration of $2666, bearing date 1st May, in the year of our Lord one thousand eight hundred and five ; and sundry mesne conveyances from Boyd to Col. Variek, one of the defendants in the-suit, who obtained his title on the 1st March, 1810, for the consideration of §9000.. Mr. Boyd, immediately after obtaining a conveyance of the lot, caused some old wooden buildings which were upon it to be- pulled down, and erected a valuable brick house on the same ; and Col. Variek, after his purchase, expended about §3000 in a general repair of the house. The defendants also produced in evidence as. bond for the payment of £168, with interest, payable in one year, dated 31st April, 1783, executed by John Bridgewater to Medeef Eden, on which was an endorsement in these woi’ds: “For the better securing this bond, the said John Bridgewater, gent, left the deeds of his house and land, to bes returned when the monies paid, or to be executed, the same as a mortgage. (Signed.) John Bridgewater.” John Pelletreau, the devisee named in the will of Medeef Eden, junior, was called by the defendants to prove the execution of this bond, ' his name and that of Oliver Hobbes being thereto subscribed as witnesses ; and on being sworn, he testified that the name of John Pelletreau, subscribed to the bond, was not his hand-writing. Having been sworn as a witness on the call of the defendants, the plaintiff insisted upon the right to examine him on a cross-examination on the whole merits of the case, which was objected to on the part of the defendants ; but the objection was overruled by the presiding judge, and he was accordingly examined. To this decision of the judge, the defendants excepted; The defendants also gave in evidence a deed from Ware Branson to Joseph Winter of the premises in question, dated 17th July, 1804. Ware Branson was the son of Mrs. Bridgewater, and claimed to he entitled to the property as the heir at law of his mother ; alleging, that the premises had been purchased by John Bridge-water with monies belonging to his mother. The deed given by him was executed in the attic story of the house on the premises; the grantor and the agent of the grantee having obtained permission of the occupant to go into a private room for the purpose of executing the deed. It was also proved by a witness, that he, as sheriff of the city and county of New-York, sold the premises under an execution againstone of the Edens, to James R. Smith, who purchased the same ■ for the Scotch Presbyterian Church, in the city of New-York ; that he executed a deed, but did not receive the consideration money, and did not remember what had become of the deed. It was produced by the defendants, and bore date 10th May, 1801, and, for the consideration of ^2500, conveyed all the right, title and interest which Joseph Eden had to the premises in question on the 8th July, 1800, to the Scotch Presbyterian Church. Another witness, the president of the Bank of New-York, in whose favor the execution had issued upon which the sale took place, testified that he received the deed from the sheriff, but it had never been delivered to the grantees.</p> <p>To rebut' the presumption that Medcef Eden, the ancestor, held the premises as the assignee of the mortgage given by Bridgewater, it was proved that he told a witness that he had bought the house of Bridgewater, and paid him the money, and afterwards discovered there was a mortgage on it, which cost him £200 to take up.</p> <p>The defendants, previous to entering on their defence, moved that the plaintiff be nonsuited, forasmuch as the plaintiff had not proved that Medcef Eden, the younger, under whose immediate devise the plaintiff claimed title, was seized at the time of the devise, nor at the time of his death; which motion was denied, and the defendant excepted.</p> <p>The judge charged the jury that the devise contained in the will of Medcef Eden, the younger, was a good and valid devise of the premises in question, notwithstanding the possession of the defendant, Richard Varick, adverse to the claim of right of Medcef Eden, the younger, at the time the said will was made, and at the time of the death of the said Medcef Eden, the younger. To which opinion thus expressed the defendants excepted. The jury found a verdict for the plaintiff. The supreme court were subsequently applied to for a new trial, which application was refused, and judgment rendered for the plaintiff, upon which a writ of error was sued out to remove the record into this court.</p> <p>For the opinion of the supreme court in pronouncing judgment for the plaintiff below, see 7 Cowen, 242 to 248.</p>

<p>Motion to quash appeal. The bill filed by the appellant in the court of chancery was dismissed. On the 20th May, 1828, an appeal (or rather a statement that the party intended to appeal) was filed with the assistant register, and an order obtained for the respondents to answer in eight days or be precluded. A petition of appeal was not filed, nor was the deposit of $100 made, required by the 37th rule of the court of chancery.</p>

<p>Where a stipulation is entered into by the parties in two actions of ejectment, that but one shall be tried, and the other shall abide the event, and a verdict is found for the plaintiff, and a bill of exceptions taken, on which verdict a judgment is rendered by the supreme court, which is affirmed in the court of errors, full costs in each suit will not be allowed for services not in fact performed, or which are wholly unnecessary. The prevailing party is entitled to charge for a rule for judgment, and making up record in each cause.</p> <p>The giving of interest, by way of damages, in cases of tort, is always in the discretion of the court, and, it seems, should be allowed, where double costs are not sufficient to cover the actual damage sustained by the delay.</p>

<p>Costs are not allowed on the reversal of a decree by the court for the correction of errors.</p> <p>A decree will be amended where, through inadvertence, costs have been given to an appellant on the reversal of a decree, although the transcript and remittitur are in the hands of the register in chancery, if the receiving and filing of the same have been suspended by order of the court of chancery.</p> <p>Costs in chancery necessarily follow the dismissal of a bill ordered by the court of errors. Whenever the merits of the case are disposed of by the decree made in the court of errors, that court has a right to adjudge as to the costs.</p> <p>Notice of a special motion to be made in the court of errors, may be given for any Monday during the session of the legislature; and the motion may be brought on, on that day, or on any day subsequent thereto when the court is in session for the transaction of business.</p>

Motion to dismiss appeal. On the third day of March last the chancellor denied an application made by the appellants to open the proofs taken in a cause in which the respondents were complainants and the appellants were defendants, for the purpose of re-examining a witness produced on the part of the respondents. The motion was denied with costs.

The default in this case was entered on the 15th November last, and on the same day damages were assessed. A motion was made to set aside the rule for interlocutory judgment, and all subsequent proceedings, the latter rule being enter-U ■, . -I , V n ed on the same day with the default,

The witness sought to be exam}nec[ went from this state into Upper Canada on the 21st 7 11 , day of October last On the 6th December the defendant gave notice of a motion at this term for a commission to.exam;ne the witness, previous to which time the plaintiff had c ... noticed the cause for trial at the Jenerson circuit, to counmence onthe 15th December.

Motion to strike cause from calendar. This is a writ of error from the Jefferson common pleas, on a bill of exceptians, signed in February, 1827, noticed for argument at the present term. The motion was made to strike the cause from the calendar, on the ground that an error-book, or copy of the bill of exceptions, had not been served on the defendants’ attorney.

In this case, a verdict was rendered against the defendant,, . . who obtained an order tor time to make a case, which was ma<ie‘ The plaintiff had time given him by order to propose amendments, which were proposed and the case settled; but no order was granted to stay proceedings after the case was settled. The plaintiff perfected his judgment and issued execution, and the defendant applied to set the same aside for irregularity.

<p>Previous to the parties having come «K atheSpleaT ings interposed a cause cañnot be nomenkf°though an issue of law is joined on one of the pleadings.</p>

Motion to set aside an inquest taken at the circuit. The cause was noticed for trial on the fifteenth, for the circuit in Oswego on the twenty-third day of December last, The notice was served by leaving the same in the office of thé defenant’s attorney after half past ten o'clock in the night of the fifteenth, when the defendant’s attorney left his office, find the service of the notice did not come to his knowledge until the sixteenth, when he was informed by the…

Motion to change the venue from Oneida to Monroe, The action was. brought for the publication of a handbill immediately preceding the last election by the defendants, styling themselves the anti-masonic central committee, which was alleged to be libellous. The defendants swore to 20 witness-68 residing in the county of Monroe.

<p>A subpoena ed^for °every FeTforservfe of papers not kssWrequiring an answer.</p>

Motion respecting bail in suit on recognizance. The capias against the bail was returnable on the first day of the last October term, (twentieth of October,) on which day it was served.

The plaintiff obtained a ru}e against the defendant for costs on the denial of a mo- ° . . tian, and noticed the costs for taxation before a commissioner in Buffalo. The parties attended, and on the commissioner deciding against some of the items, the plaintiff withdrew the bill and noticed it for taxation before a commissioner in Utica ; who, allowing items which the party deemed objectionable, application was made for a retaxation, which

Attachment for not bringing in body. J. W. Wisner was arrested on a copias, returnable at the May term, 1828. Bail not being put in, a rule was entered, requiring the sheriff to bring in the body of the defendant within twenty days, or shew cause, notice of which was served on 2d September. At the October term an attachment was ordered, which was issued on the 2d February, on which the sheriff was brought into court; who now answered on interrogatories.

Motion to get aside proceedings for irregularity. On the 13th day of June a notice of retainer and bail was served on the agent of the plaintiff’s attorney. On the 20th day of June a declaration and notice of rule to plead was served on S. Jenkins, attorney for the defendant, by affixing the same in the clerk’s office in Albany, the said Jenkins having no agent appointed there.

An alternative mandamus having been ordered in this case at the last term, directing the common pleas of Delaware to vacate a rule refusing to quash an appeal, and to quash the same, or shew cause, the writ, together with the return of the common pleas thereto, submitted, and a peremptory mandamus asked for.

A plaintiff in a suit which had been carried up by appeal to the Delaware common pleas, was nonsuited. Five years afterwards, application was made to the common pleas to quash the appeal for a defect in the appea] ]]0nd, which was refused. A mandamus was now ** 3 asked for, directing a vacatur of the rule refusing the application, and ordering the appeal tobe quashed,

Motion to discharge the defendant from arrest. The de- • fendant, whose residence is m the county of Orleans, attended a reference at Rochester, in the county of Monroe, in a cause in which he was a party. The hearing before the ref-_ , ,, - T , . crees was closed on the seventh day oí January, and a report was made on the ninth day of January, at 10 o’clock in the morning.

. Motion for a rule for costs. The judgment of this court in this cause was reversed in the court for the correction of errors, on a writ of error prosecuted by the defendant, and costs awarded to the plaintiff in error. On filing the remit - titur,it was moved, on the part of the defendant in this cause, that the lessors of the plaintiff pay the costs awarded in the court of errors, or shew cause why an attachment should not issue against them.

Motion to strike out words in an amended count of a declaration. After receiving a plea, and -within 20 days, the plaintiff amended his declaration in slander, by adding other A o J , a ana additional slanderous words, which he claimed to have a right to do, under the 8th rule of April term, Í796, permitting an amendment as of course.

At the last term an alterna» tive mandamus was directed in this case, (1 Wendell, 316,) anc¡ the return of the common pleas now coming in, shewing r ° cause, &c. a peremptory mandamus was asked for.

Motion by plaintiff to vacate a sale under execution. Six ^°*:s ™ &e cffy of Albany were sold by virtue of a fieri facias^ and bought in by the assignee of the judgment, for the sum °f $2560 ; the amount directed to be levied on the executjon was #1872 86, with interest from 9th March, 1828. ^ y Previous to the sale, the defendant in the execution proposed to the assignee certain terms on which the property should be sold, by which it was provided, among other things, that…

The defendant, an impris- . 1 oiled debtor on the limits of the jail of the county of Gene-see^ was possessed of a gold watch of the value of $200, which he was exhibiting in the bar-room of an inn in the . ° village oi Batavia to a number of persons, boasting of its value ; and, among others, urged it upon the attention of an attorney who was present, who took it and delivered it to a deputy sheriff also present, in whose hands he had put an execution against the defendant…

<p>recognizance11 °£ebdefendant in the original confinementas ¿ebtorP?n°“riother state, the ^iMbestayed, and t!me, .to after his litierconfinement111 will be Siveu-</p>

The relator was sued before a justice, by the commissioners of highways of the town of Marcellus, for obstructing a highway and a penalty of $5 claimed of him. The relator interposed a plea of title, and entered into a recognizance to appear and put in special bail in a suit to be commenced in the common pleas for the same cause of action. A suit was commenced in' the common pleas for the same cause of action, in which the defendant pleaded nil debit.

The relator recovered a juclgmen* before a justice against a constable and his sureties, the former having made himself liable in relation to an execution issued on a judgment in favor of the relator against J. Knox, g_ gCutt and J. Stark. The defendants appealed.

An attorney’s fee was allowed by the commissioner on hearing before referees, at the day for which the same was noticed, and at an adjourned meeting ; and the same fee was taxed for three terms, when the cause was noticed for argument on a motion by the defendant to set aside the report of the referees. It appeared that the attorney had not in fact attended either at the hearing before the referees or at term, but counsel had attended.

Archibald Green was elected sheriff of the county of Cayuga, at a special election holden on the 4th September, 1826, in pursuance of a proclamation of De Witt Clinton, then governor of the state, issued in consequence of the death of Stephen W. Hughes, who, at the general election in November, 1825, was chosen sheriff of Cayuga, and on the 1st of January thereafter took upon himself the duties of the office, which he continued to discharge until the 19th day of July, 1826,…

Motion to set aside proceedings for irregularity. The copias in this cause was returnable on the last day for return of process of the February term, to wit, the twenty eighth February. The appearance of the defendants was endorsed on the writ, which was returned to the clerk’s office, and filed on the sixteenth day of February.

Motion to set aside a default. This was an action on a policy of insurance against fire. The summons was returnable on the first day of the last term. The defendants were called, their default entered, and a writ of inquiry of damages awarded, the plaintiff supposing himself entitled to such rule, under the act to prevent fraudulent bankruptcies by incorporated companies. A motion was now made to- set aside the default.

Holmes, as a constable, and Caswell, as his surety, entered into a bond to “ the people of the state of New-York,” in the penalty of $1000, conditioned that Holmes should pay to each and every person such sums of money as he should become liable for on account of any executions which should be delivered to him for collection.

Motion to change the venue. The defendant applied to change the venue from Columbia to Washington county, on an affidavit that he had 4 witnesses residing in the county of Washington, and 15 in towns in the state of Vermont adjacent to that county. The motion was resisted by the plaintiff shewing that he had 24 witnesses residing in the county of Litchfield (state of Connecticut) adjoining the county of Columbia, where the venue was laid.

The affidavit of the state of the cause was made by a clerk of the attorney for the defendant, and the copy affidavit served on the plaintiff’s attorney contained no jurat, for which causes the motion was opposed.

There were two causes noticed for trial at the Westchester circuit against &e defendant, in which the questions were the same, and the evidence the same. The circuit judge refused to try both. The plaintiff elected to try one of the causes, hut omitted to a stipulation that the cause remaining untried should abide the event of that tried. The defendant obtained a verdiet, and jjhe plaintiff made a case.

The declaration in this case contained ten counts, two for malicious prosecution, and eight in slander; four of the last were laid with a colloquium, and . _ 1 four without. Forty witnesses attended to support the plaintiff’s general character, only two of whom were sworn on the trial. There was no proof in support of the counts for a ma-1 1 x licaras prosecution. The taxing officer allowed for all the counts in the declaration, and for the attendance of all the witnesses.

This cause was noticed for trial m April, 1828, at the Genesee circuit. The circuit judge refused to try the cause, because the defendant had given no- ... . tice of an application for a commission to examine witnesses) although- such notice was given after the notice of trial had been served. In April, 1829, the cause was again no- * , , , _ _ „ ticed.

Motion to quash a certiorari. The plaintiff sued out a 1 , , - 1 certiorari directed to the trustees of a school district m the county of Westchester, commanding them to return two certain-assessment rolls and tax lists, made for the purpose of raising money to build a school house, together with the warrants issued on the same, alleging that the proceedings had not been conducted conformably to the directions of the statute. A motion was now made to quash the certiorari.

Issue was j°lne(l January, 1828. The cause was not noticed for trial at the last February circuit in Albany, where the venue was laid. The circuit commenced on the third day of February and adjourned on the twelfth.

Motion to set aside proceedings for irregularity. The copias in this cause was returnable on the first day of the last February term, viz. the sixteenth of the month. It was bailable process, but the defendant endorsed his appearance. On the seventeenth a declaration was filed de bene esse, rule to plead entered, and notice affixed in the clerk’s office.

Mailer obtained a judgment against one Fuller before a justice; Fuller appealed, and on ^le common pleas recovered a judgment against Mailer for $6,75, and had his costs taxed at about $20, besides disbursements. \On the taxation before the judge, Maijer |nsisted. that Fuller was entitled to but $7 besides dis-w .bursements ; the judge decided otherwise, and on an appeal the common pleas confirmed the taxation.

An overseer of the poor of the town of Oswego, by the direction of a justice of the peace of the same town, expended $¡41,50 for the relief of four per- . , r , . . , . sons m indigent and necessitous circumstances. Alter the expenditure, an adjudication was made by two justices, in due form, that the persons relieved never had a legal set- . , _ _ tlement m the county of Oswego, and consequently xvere county charges.

Motion to quash a certiorari. It was objected that the affidavit on which the certiorari was granted was made by the attorney, and not by the party. The plaintiff in error did not attend the trial of the cause, but entrusted his defence to an attorney; for which reason, the facts which transpired on the trial were stated by the attorney instead of the party.

Motion to set aside proceedings for irregularity. This is an action on a bail bond. At the last February term, viz. on the 6th March, a rule was granted setting aside the proceedings in this cause, upon the payment of the plaintiff’s costs of suit, and of the motion, and putting in and justifying bail in the original action within twenty days, giving eight days notice of justification.

■ , . r tions. The action is trespass for mesne profits, commenced ™ MaJ vacation, 1827, demise laid 3d August, 1819. The defendant pleaded the general issue alone, and now applied for leave to add a plea of the statute of limitations, on an excuse offored by the attorney .in the cause that he had been advised by counsel to put in such plea, without regard to the , „ , . . . 1 , , . plea oí the statute of limitations.

Motion to set aside a nonsuit. The action was assumpsit; the defendant gave notice of set off, the suit was tried, the jury came into court prepared to certify a balance in fa-var of the defendant, the plaintiff did not appear, and a nonsuit was entered.

There are two causes, one assumpsit on a promissory note for $1000, in which the defence is forgery, the other slander for alleging the note to be a forgery. The controversy has excited much speculation and interest. The connexions of the parties are numerous and respectable. The venue is laid in the county of Columbia, and the defendant applies for a struck jury, either from a foreign county, or of the county where the venue is laid.

D. S. Jones moved the court to receive the proof of the will of Augustus N. Lawrence. He asked the court whether it was necessary to present a written petition for that purpose, and whether the evidence of heirship, and proof of service of notice of the proceeding on the parties interested must be viva voce, or whether affidavits are received. He said he deemed the petition unnecessary, and supposed that affidavits would be received.

Certain real estate of T. E. Sutliff was sold on the 15th August, 1827, under an executian issued under the seal of the common pleas of Montgomery, on a justice’s judgment, for $37,81, and puschased by J. W. Cady and another, who obtained a certificate of sale, which, by assignment, came to the relator in this case.

Motion to set aside an attachment. A warrant was issue(f by the Hon. J. O. Hoffman, one of the justices of the suPe™r court °f the city of New-York, the property of the debtor was attached, and the proceedings were returned to this court.

to prosecute the sureties of the sheriff of Allegany for not returning an execution. A rule to return the execution was duly entered, and notice served on the sheriff. He having neglected to comply with the requisitions of the rule, this motion was made.

AFTER this cause was at issue, the defendant obtained a discharge under the act to abolish imprisonment for debt in certain cases, which he plead puis darrein continuance.

M. W. & J. Symonds obtained a judgment in a justice’s court against J. Holbrook and others. The defendants entered an appeal to the Jefferson common pleas, which, on the motion of the plaintiffs, was quashed. The defendants applied to the supreme court for a mandamus to vacate the rule of the common pleas quashing the appeal; an alternative mandamus was ordered, and a return made to the same by the common pleas.

Error from the New-York common pleas. On the 15th March, 1826, Ira Smith presented a petition to the Hon. John T. Irving, first judge of the court of common pleas of the city of New-York, stating that the sloop or vessel called the G-eneral Pike, and the owners thereof, were justly indebted to the petitioner in the sum of $¡100 and upwards, and refer-1 w x red to an account annexed to the petition for the items of his demand, which consisted of charges for materials…

This was an action of ejectment brought for the recovery of the moiety of two lots of land in1* the county of St. Lawrence> tried at the circuit in that county, in July, 1827, before the Hon. Reuben Hyde Walworth, then one of the circuit judges.

This was an action of assumpsit, tried at the Columbia circuit in April, 1827, before the Hon. William A. Duer, one of the circuit judges.

This was an action on the case against the defendants as common carriers, tried at the Albany circuit, in September, 1827, before the Hon. William A. Dver, one of the circuit judges. The defendants, eight in number, were stockholders in an incorporated company called the Dutchess and Orange r r j e ° Steam Boat Company, the stock of which, in all, was held by thirty six persons.

This was an action of trespass de bonis asportatis for taking ■ - it m f ° a large quantity of merchandise. The defendant pleaded several pleas. In his second plea, he justified the taking, as sheriff of the county of Oneida, by virtue of a plaint in re-J 1 plevin sued out by one Edward Vernon.

This was an action of slander, tried at the Monroe circuit, in March, 1828, before the Hon. John Birbsall, one t^ie ca’cuit judges. The words charged, and which were proved on the trial to have been spoken, were, “ you are a thief, you stole my wife’s dress.” The plaintiff had resided Owego, and had removed to Rochester but six weeks before the speaking of the words complained of, where she kept a boarding house.

This was an action of ejectment, commenced in May term, 1827, tried at the Albany circuit, in February, 1828, before the Hon. William A. Duer, one of the circuit judges. The lessor of the plaintiff deduced title to the premises in question, by proving his descent from Johannes Beelnnan, who occupied the premises in his life time, and died in possession of the same in the year 1756. He left two sons and two daughters. The sons died at an early age, previous to 1760.

This was an action of assumpsit, tried at the Dutchess circuit, in December, 1827, before the Hon. James Emott, one of the circuit judges. The defendant was the first and the plaintiff the second endorser of a promissory note discounted at the Middle District Bank, for the accommodation and sole benefit of the drawer, one Joseph A. Bostwick. The note was for $1500, dated 22d November, 1816, payable in 60 days. When due, it was protested for non-payment.

Error on certiorari. In March, 1824, Reinhart and Deitz commenced a suit before a justice against Belknap, claiming to recover of him $30 as a reward for apprehending, in 1820, one Peter Syble, a deserter from the army of the United States. In 1820 Syble was apprehended by the plaintiffs as a deserter, taken to Greenbush, (then a military post,) and delivered to the defendant, who acted as a captain in the army of the United States.

Error on certiorari to the common pleas of the county A v of Kings.

This was an action on the case, tried at the Madison circuit, in September, 1827, before the Hon. Nathan Williams, one of the circuit judges. In August, 1824, Seagraves and Wilson, of Allentown, in the state of Pennsylvania, by a verbal arrangement, agreed to purchase of the plaintiff 200 hogs and pay him the market price, provided he delivered them within three or four weeks and they had not been previously supplied.

A verdict was taken in this cause at the Albany circuit in August, 1828, for the plaintiffs, for the sum of $601,79, subject to the opinion of this court on the following facts : In October, 1825, Keeler and Mather, a mercantile firm in Albany, drew a bill of exchange on Keeler and Rogers, a firm in New-York, for $1500, payable in 60 days, procured the endorsement of Gregory and Bain, the present plaintiffs, who endorsed for the accommodation of the drawers and drawees, and…

Error on certiorari to the president and trustees of the village of Brooklyn.

This was an action of covenant, tried at the Tompkins circuit, in January, 1828, before the Hon. Samuel Nelson, one of the circuit judges. - On the 17th November, 1817, the defendant entered into an agreement under seal to convey to the plaintiff, by a good, perfect and sufficient warrantee deed, 129 f acres of land situate in the county of Tioga, on the payment of the sum of $259,50 by instalments, viz. one fifth of the sum in 4 years from 2d June, 1817, and the residue in…

Error from the Onondaga common pleas. Tompkins brought an action of covenant against Tuttle for the recovery of $400, the rent of a saw-mill, accruing in the year 1826, payable in quarter yearly payments. The lease was for three years from January, 1824.

This was an action of assumpsit to recover monies paid, &c. for the defendants. The declaration contained four counts : the three first counts were special, to which the defendant demurred; the fourth was the common count for money paid, laid out and expended, to which the defendant pleaded the general issue.

This was a motion to set aside the report of referees. The action was assumpsit, and had been referred by rule of court. The plaintiffs were forwarding and commission merchants in Albany, and the defendant a country merchant, residing in Orleans county. On the hearing, the plaintiffs produced an account current between them and the defendant, claimiuga balance of $364 40. The account commenced in May, 1824, and ended in August, 1826.

Tins was an action of debt, tried at the Saratoga circuit, hi May, 1828, before the Hon. Nathan Williams, one of the circuit judges. _ . The declaration is in debt on a decree of the surrogate of Saratoga for $101,77, for and on account of a legacy be-queathed to the plaintiff, and for $9,66 money lent.

Demurrer to pleadings. The declaration is in trespass de bonis asportatis. The goods charged to be taken are 100 sides of sole leather, 100 sides of upper leather, 100 calf 7 rEr 7 skins, Sic. The defendant pleaded, 1. Noncul; 2. Licence of the plaintiff; 3.

Demurrer to pleadings. The declaration is in debt ow bond, bearing date 31st July, 1826, conditioned that the obligor would well and truly pay to the obligee, trustee for Sa~ rah Gregory, the wife of the obligor, the sum of $75 annually during the natural life of the said Sarah, for her use and benefit.

<p>prosectdion, the be7 instructed by the judge a.s valved in the probable °f what’ canst!" tutes a legal excuse for the defendant; and whether the facts relied on in the defence, on the supposition of their being found true by the jury, made out a probable cause.</p> <p>Where the circumstances retied on as evidence of probable cause are admitted by the pleadings, it belongs to the court to pronounce upon them; and where they are clearly established by uncontroverted testimony, or by the concession of the parties, and fully establish a probable cause, the court may refuse to submit the cause to the jury, and may order the plaintiff (¡o be nonsuited.</p> <p>If; however, ttie facts are controverted, if conflicting testimony is to be weighed, or the credibility of witnesses to be passed upon, the evidence must go to the jury, but still under the instruction of thejudge as to the law of the case.</p>

This was an action of assumpsit, tried at the Rensselaer circuit, in January, 1827, before the Hon. William A. Du-er, one of the circuit judges. The declaration contained a count of payee against maker on a promissory note for $131, dated 15th August, 1826, payable 1st January, 1827, and also the common money counts.

This ivas an action of ejectment, tried at the New-York circuit in April, 1827, before the Hon. William A. Duer, one of the circuit judges. The declaration contained a numJ ° her of counts, on the demise of Uriah Bulkley against Joseph Delacroix, some of which were laid on the 17th May, 1825, and others on 21st November, 1825.

Error from the Washington common pleas. This was a judgment in partition. Gibson presented his petition to the common pleas under the statute, setting forth that he was entitled to one sixth of two certain lots of land as a tenant in common with A. McWhorter and four others, owners of the remaining five sixths, and praying partition.

Error from the Monroe common pleas. Jennings sued Carter and Wilcox before a justice in an action of trover for the conversion of a waggon and yoke of oxen. The defendants pleaded the general issue, and gave notice oí justifica*i°n under legal process. The cause was tried, and the justice gave judgment for the plaintiff for $50 damages. The defendants appealed to the Monroe common pleas.

This was action on the case, brought to recover damages an injury sustained by the plaintiff in consequence of the .runn™8' °f-a steam,boat upon a sloop belonging, to the plaintiff, while, navigating the Hudson river. The action was tried at the Rensselaer circuit, in June, 1827, before the Hon. William A- Duer, one of the circuit judges.

This case came before the court on a special report of referees, in which they certified a balance in favor of the Pontiff of $S3 45, subject to the opinion of the court on the following state of facts : The demand of the plaintiff was for services rendered by him as a miller in a mill at Kingsbridge, which belonged to the wife of the defendant, it having been conveyed by a third person to James Renwick in trust for the wife of the defendant, as and for her separate estate,…

This case distinctly presented the question, whether an a a • insolvent discharge obtained in this state could be plead in bar of a suit brought in a court of this state on a contract made in another state, subsequent to the passage of the act under 1 . , , , . . which the discharge was obtained, between parties not inhabitants of this state at the time of the contract, but who, previous to the presenting of the petition for the discharge, became such inhabitants.

This was an action on the case for debauching the daughter of the plaintiff, tried at the Washington circuit, in June, 1825, before the Hon. William A. Duer, one of the circuit . - ‘ judges.

This was an action of ejectment, tried at the Dutchess circuit in' December, 1826, before the Hon. Samuel R. Betts, then one of the circuit judges. The lessor of the plaintiff {Zachariah D. Feller) produced a deed from Henry M. Hoffman and Sally his wife to the lessor, bearing date the 12th June, 1820, for one fourth of the farm whereof Nicholas Hoffman died seized. The consideration expressed was $1750.

Demurrer to pleadings. The declaration is in assumpsit f°r goods, wares and merchandise sold and delivered to the testator in his life time.

Lewis-street lies in that part of the city which was laid ou* into avenues and streets under the act of April 3d, 1807. ft Was not recognized by the commissioners as a street, nor designated by them as such on their map, but was laid out by the owners of property to induce to the sale of lots, and was actually opened and used as a street.

Demurrer to pleadings. The action is replevin. The ii. . ° „ ; z> i declaration contains two counts, alleging the taking of a sloop with her apparel, furniture, &c. at Coxsackie, in the county of Greene, on the 20th June, 1826.

This was an'action of covenant, tried at the Montgomery circuit, in November, 1827, before the Hon. Reuben Hyde Walworth, then one of the circuit judges.

This was an action of assumpsit, tried at the Tompkins circuit, in June, 1828, before the Hon. Samuel Nelson, one of the circuit judges. J ° The declaration contained the common money counts. The plaintiff had given a bill of particulars, in which he claimed to recover for money paid by him for the defendants, in consequence of having joined with them in making a note for $300 for their accommodation, and which he had been compelled to pay.

<p>A plaintiff who has called and had the benefit of the testimony of a witness cannot afterwards object to him on the ground of interest; and the witness having been sworn in chiefj the opposite party may not only cross-examine him in relation to the point which he was called to prove, but may as to any mat-l®rthec™^cetl Evidence of usury is admissible under the general issue in assumpsit, and the defendant is not restricted to the matter contained in his notice accompanying the plea. The notice does not preclude him from any defence which he could have made, if no notice had been given.</p>

This was an action of covenant, tried at the Washington eircuit, in November, 1827, before the Hon. Reuben Hyde Walworth, then one of the circuit judges.

This was an action of debt on an arbitration bond, tried at the Cortland circuit, in January, 1828, before the Hon. Samuel Nelson, one of the circuit judges.

Error from the New-York common pleas. Brown sued Elliott in an action of an assault and battery. The defendant pleaded not guilty, and subjoined a notice of son assault demesne.

This was an action of assumpsit for goods sold and delivered, tried at the Albany circuit, in September, 1828, before the Hon. William A. Duer, one of the circuit judges. ’ •* ° The plaintiffs were wholesale grocers in the city of Albany, and the defendants country merchants.

Error from the Oneida common pleas. Robbins sued Larkin, and declared on a promissory note, &c. The defendant pleaded outer actio pendents. The plaintiff replied , , • „ . . , , that the action set forth in the plea had been submitted to arbitration, by reason whereof the suit became discontinued.

This was an action of assumpsit, tried at the Albany circuit, in August, 1826, before the Hon. William A. Duer, n one of the circuit judges.

This was an action of assumpsit against the defendants as endorsers of a promissory note, dated the 4th June, 1818, for $1300, payable at the bank of Niagara in 90 days, tried at the Erie circuit, in April, 1828, before the Hon. John SALL, one of the circuit judges. On the trial of the cause, the making and endorsement of the note were shewn.

<p>This was an action of slander, tried at the Onondaga cir- ° cuit, in February, 1828, before the Hon. Enos T. Throop, then one of the circuit judges.</p> <p>The defendant had entered a complaint in writing, under .r . ° oath before a justice, against the plaintiff. The plaintiff was arrested on a warrant and brought before the justice, and after perusing the complaint, he asked the defendant, who was i present, if he was guilty; to which the defendant answered H that his shop had been broken open, his leather stolen, and his shoes cut to pieces, and he believed the defendant did it, and that he had reason to believe that the defendant did it.”</p> <p>The plaintiff then asked the defendant whether he considered himself under oath, to which he answered that he did. For the speaking of these words upon this occasion the action was brought. The defendant contended on the trial that the words were spoken in the course of a judicial inquiry, and therefore were not actionable; but his honor, the judge, charged the jury that the words were actionable, because the defendant was not, at the time of the speaking of them, testifying as a witness or complainant; and the jury gave a verdict for the plaintiff for $100 damages, which was now moved to be set aside.</p>

This was an action of covenant, tried at the Greene circuit,in September, 1825, before the Hon. William A. Du-er, one of the circuit judges. ■* ° The plaintiff claimed to recover three years’ rent as due upon a lease executed by Augustin Provost to Josiah Bid-well, whose estate, it was alleged, had come to the defendant by assignment.

Demurrer to pleadings. This was a bill filed against the defendant, one of the attornies, &c. as of the term of Octoher, 1827, in which the plaintiff declared, that on the 9th March, 1826, the defendant promised, in consideration that the plaintiff would not assign a certain judgment which he held against G. Quackenbush, obtained in the Washington common pleas, to one J. b. B. that he, the defendant, as soon as a judgment should be rendered in the supreme court in lavor of…

Motion to set aside report of referees. The plaintiff 1 provcd two promissory notes given by the defendant for $200 and $1000.

Demurrer to pleadings. The declaration is on a covenant bearing date 28th January, 1824, whereby the defend-anh after reciting that he had received the plaintiff’s note for $223,20, promised and agreed to give and deliver to the plaintiff or his heirs a deed of a certain lot of land situate in the village of Fredonia, when and as soon as the plaintiff should pay or cause to be paid to him the said note in full.

DemuiIrer to pleadings. The action is slander. In the commencement of the declaration it is averred that the defendant had become possessed of a promissory note, hearing ¿[ate the 27th August, 1825, made by William Erwin and James Erwin, payable to William McMurray or order, for payable four months after date, v>ith interest from «Iate, (the latter words being interlined,) which had been endorsed to the plaintiff, and who had collected the amount.

<p>The sale of the crabytiieauryey°r general the military six^veek^noced pre^msTo the expiration bed^foT^the payment ofthe expense otsurvey, was good and valid'</p>

Demurrer to pleadings. This is an action of ejectment. The declaration contains four counts: 1. On the demise of John C. Hallenbake and Angelica his wife, and Andrew Hallenbake and Ann his wife; 2. On the demise of J. C. Hallenbake and Ann his wife ; 3. On the demise of same persons as last for two equal undivided third parts of the premises,&c.; 4.

This was an action of assumpsit against the defendant as the acceptor of a bill of exchange, tried at the Rensselaer circuit, in June, 1828, before the Hon. William A. Duer, one 01 the circuit judges. The action was for the non-payment of a bill of ex-©hange for' $2500, dated February 11, 1827, drawn ,by Daniel H. Stone on the defendant, and payable four months after date to the plaintiff or order.

This was an action of assumpsit, tried at the Essex circuit, in January, 1828, before the Hon. Reuben Hyde Walworth, then one of the circuit judges. The declara- . , . „ _ tian contained a count on a promissory note tor $50, made by the defendant, payable to the plaintiff or bearer, and also the common money counts. On the trial of the cause, the plaintiff proved the loss of the note and the contents thereof by the production of a copy, and rested.

<p>®d o^y virtue ecution is sold andexhaustedAn action for a false return will not lie against a sheriff for returning an execution milla bona, where the property of a firm is levied on by virtue of an execution against one of its members, and previous to a sale, an execution against the firm comes to the hands of the sheriff, under which the property levi-</p>

<p>This was an action of ejectment, tried at the Monroe circuit, in March, 1826, before the Hon. John Birdsall, one of the circuit judges.</p> <p>On the part of the plaintiff was produced a deed for the premises in question, bearing date the 10th August, 1791, purporting to he executed by Nathan Wood and Betty Wood to Israel Gibbs, junior, and to which appeared the names of Caleb Rogers and Joel Wood, as subscribing witnesses. On the deed was a certificate of proof in these words : “ On this 8th September, 1826, personally appeared before me, Joshua Fairbanks, a commissioner to take acknowledgment of deeds, &e. Joel Wood, to me known, a witness to the</p> <p>within deed, who, being duly sworn according to law, testified that he saw the within grantors sign the same, for the purposes therein expressed, (signed,) Joshua Fairbanks;” and to which was annexed a certificate of the clerk of Niagara county,- that Fairbanks was a commissioner of the county. The counsel for the defendant objected to the sufficiency of the proof of the execution of the deed, but the objectian was overruled. A regular title was then deduced to Rich, the other lessor of the plaintiff, the deed to him bearing date in 1815.</p> <p>The defendant, for the purpose of impeaching the testimony of Joel Wood, upon whose oath the deed to Gibbs had been proved before the commissioner, offered to prove that on the complaint and by the procurement of Gibbs, two bills of indictment were found by a grand jury in Monroe, in 1824, against Wood, one charging him with perjury, and the other with forgery committed by him in relation to the premises in question; that Wood had absconded, and had ever since remained out of the territory of the United States, for which reason he had not been tried; that subsequent to the indictments, and before the commencement of this suit, Gibbs did in person procure Wood to make the proof before the commissioner certified on the deed first above mentioned, This testimony was objected to by the plaintiff’s counsel, and rejected by the judge.</p> <p>The plaintiff then offered to read the deed in evidence to the jury. It appeared that the name of the grantee was written on an erasure, in a hand writing different from, and to - appearance written some considerable time after the residue of the written part of the deed, but (as the greater part of the witnesses thought) not after the signatures of the grantors to the deed. The counsel for the defendant objected to the deed being read, insisting that it was incumbent on a party producing an old deed on which there was an erasure, to account for, and by proof explain such erasure ; but the objection was overruled, and the judge charged the jury that a party seeking to invalidate a deed for an erasure appearing thereon, must shew affirmatively that such erasure was improperly made; to which charge the defendant excepted. The jury found for the plaintiff.</p>

Error on certiorari. Neely sued Campbell in a justice’s court, and declared against him in case, for interrupting an officer in the service of a warrant in a civil action, which he jjad procure(j to be issued by a justice at his suit against one Adams, by secreting Adams, and aiding and assisting him to elude and escape the service of the process.

This was an action of covenant, tried at the Herkimer circuit, in September, 1837, before the Hon. Nathan Williams, one of the circuit judges. The plaintiff declared upon a lease of 60 acres of land, bearing date the 7th November, 1791, executed by the plaintiff and Abraham G. Lansing to one George Riccard for three lives, reserving an annual rent of $20.

Error from the Erie common pleas. Shaw sued Efner in the common picas, and declared against him on a written mstrument signed by both parties, whereby they agreed that J. B. Stone and J. B. Hicks should appraise the joiner’s and carpenter’s work on a brick building lately erected by the plaintiff for the defendant; that the appraisers should make a statement of the value of the work according to the usual • r . prices paid m the country for such work, and that the parties…

This was an action of ejectment tried at the Monroe circuj¿ jn March, 1828, for the recovery of a house lot in the e 7 7 - v village of Rochester. On the 22d March, 1821, S. D. Mumford being seized of üremises (by his attorney, H. R. Bender,) entered into 1 x v X i r. . a contract to convey unto Jonathan Case a house lot m the village of Rochester upon the payment of $ 125, by annual instalments, the last instalment falling due 22d March, 1825.

This was an action of covenant, tried at the Washington circuit, in June, 1827, before the Hon. Reuben Hyde Walworth, then one of the circuit judges. The action was brought for the recovery of $200, stipulated damages for the non-performance of covenants.

Error from the New-York common pleas. Quin, in December, 1826, sued Astor in the common pleas, and declared against him for work, labor and services. The plaintiff, un- ° 3 1 3 der a judge’s order, had. delivered the following bill of particulars : “ Common Pleas. John Quin v. John Jacob Astor. Particulars of plaintiff’s demand. 1821, April 20. To setting posts, with boards, for selling lots, $2. To paving done in Broadway, $50.

Demurrer to pleadings. Declaration for work, labor, r ° . ... care, diligence and attendance as an attorney and solicitor.

This was an action of covenant, brought on a sealed agreement between the parties, bearing date 6th January, 1827, whereby, after reciting that the defendant had executed a bond to the plaintiff to advance $250 for the purpose of procuring a piece of land to be deeded to the wife and children of the plaintiff, or, in lieu thereof, to purchase a piece of land to be deeded to the said wife and children, to be selected by the plaintiff; and further reciting that the plaintiff…

Error from the Madison common pleas. Van Alstyne . . . ; - - - sued Dearborn by summons in a justice s court, and declare<^ him for the use and occupation of a dwelling house, &c. The defendant pleaded “ his privilege as being an at- „ , 1 1 torney of the supreme court then sitting, and as such not h-able to be proceeded against under the said summons.” The plaintiff demurred, and the justice gave judgment for the e e e plaintiff, upon which the defendant pleaded the general…

Demurrer to pleadings. The declaration is in covenant „ n on articles oí agreement between the parties, bearing date the 20th September, 1825, by which the plaintiffs engaged to build for the defendants a bulk-head, in the East river, op,T ir , , , , posite the city of New-York, on property belonging to the defendants, in a certain manner; 1000 or 1200 feet to be completed by the 1st February, 1826, and the residue, if do ck logs could be procured, by the 1st August, 1826,…

This was an action of ejectment, brought for the recovery óf a lot of land situate in the town of Truxton, in the county of Cortland, ■ tried at the Cortland circuit, in January, 1829, before the Hon. Samuel Nelson, one of the circuit judges, The lessors of the plaintiff produced an exemplification of an award made in 1800, by the Onondaga commissioners, of Prem’ses ™ question, to Jeremiah Van Rensselaer, and of a quit-claim deed from Van Rensselaer to Hunloke Wood-ruff of…

Motion to set aside a report of referees. The defendants are merchants residing at Sackett’s Harbor, and engaged in the transportation of property on Lake Ontario, but are not carriers by land, nor upon the canal. In the years 1825 and 1826, the plaintiff deposited with them 1461 barrels of flour, , , which were received subject to the plaintiff’s order, and were subsequently directed by him to be forwarded to Albany and New-York.

<p>Motion to set aside a report in a case of reference, cause was referred by consent to one referee.</p>

Error from the New-York common* pleas. McLaughlin sued Divver & Gunton in an action of trespass for taking an^ carrying away ten pipes of brandy, ten pipes of gin, (and sundry articles of merchandize which were enumerated,) the weights, measures and scales of a grocery store, &c. The defendants pleaded the general issue, and gave notice of justification under a judgment and execution in favor of Divver against one Thomas Stephens, Gunton acting as a deputy s¡lerjff.

Error on certiorari. Mason sued Merchant in a justice’s court, to recover money alleged to have been illegally demanded by Merchant, and paid to him by Mason. Mason was committed on a justice’s execution, and executed a bond for the limits with approved security, which was accepted by Merchant as jailer of the county of Monroe, but he refused to permit Mason to go at large on the limits, until he paid the sum of seventy-five cents, demanded as due for jail fees in such cases.

This was an action of debt, tried at the Albany circuit in February, 1828, before the Hon. William A. Duer, one of the circuit judges. The declaration set forth an arbitration bond and an award under it, bearing date 27th August, 1825, by which the defendant was directed to pay to the plaintiff $50.

Error from the Dutchess common pleas. The plaintiffs in error brought an action of trespass in the court below, charging the defendant with cutting down trees, and carrying away the wood and timber standing and being upon certain lands, &c. The defendant pleaded the general issue, and gave notice of justification under a lease of the premises, executed by Henry Beekman, in 1772, to John Alger, for three lives, alleged to be unexpired; and that the acts complained of were…

Error from the Chatauque common pleas. McCluer and Holbrook brought an action of assumpsit in the cornmon P^eas against the plaintiffs in error, who pleaded plena adminislravit, to which plea the plaintiffs replied, that at the commencement of the suit, the defendants had sufficient &00l^s and chattels unadministered to pay and satisfy their demand, and concluded to the country, On the trial of the cause, the plaintiffs proved their demand fo the amount of $64 75.

This was an action for false imprisonment, tried at the Genesee circuit, in April, 1828, before the Hon. John Birdsall, one of the circuit judges. The plaintiff was arrested by the defendant in the county of Monroe, and carried to Batavia, in the county of Genesee, where He was kept in close confinement for several days, and then suffered to go at large.

Error from the Franklin common pleas. Dutton sued Kelsey and the others in a justice’s court for not collecting an execution, put into his hands as a constable, (the other defendants being the sureties of Dutton,) and obtained judgment. The defendants appealed.

On the fourth day of term a motion was made by L. H. Palmer, of counsel, that the sheriff be discharged from his recognizance, given by him for his appearance at court on being served with an attachment.

A judgment was rendered against the relators for $50 damages and $1 84 costs of suit. The relators appealed, paid the costs and tito, the allowanee to the justice for making and filing his return, and entered into the usual bond in the penalty of $110, reciting that the plainiiff below had lately recovered a judgment against them before W. D. one of the justices, &c. for $50 damages and costs of suit.

Amended declaration. The defendants appeared by sep- .... , „ . r orate attormes, on each or whom a copy of the declaration was serve<^- The attorney for Allen plead the general issue. The attorney for German demurred, and the plaintiff neglect- ...... ... mg to join m demurrer, a default was entered against him, which, on his motion, was set aside at the last February term, and leave given to amend.

Motion to set aside a verdict. The trial closed late in the evening, and the jury, by the consent of the parties, were directed, on agreeing to a verdict, to seal the same and bring it into court the next morning. The next morning the jury brought in their verdict, and the counsel for the defendant demanded that they should be polled, which the judge (Hon. N. Williams) refused to permit, and directed the verdict to be entered.

Bill of particulars. On the sixth day of March last, a declaration was served on the defendant’s attorney; on ^he eighteenth, an order for a bill of particulars was serv- ° , 1 ed. It was an order that the plaintiffs deliver a bill of parhcu]ars before the first day of April then next, or shew cause before the commissioner granting the same, why such bill should not be delivered, but it did not direct a stay of proceedings in the mean time.

The default of the defendants for not pleading, and all subsequent proceedings on the part of the plaintiff, were set aside at the last February term, and the plaintiff ordered to y i pay the costs of the motion, which were taxed at $18 02.

Motion to set aside inquest. The copias in this cause was served on both defendants, returnable at the last Febru- ’ arv term. Fanely appeared and pleaded ; Virgil suffered a default, which was entered on the 13th day of April. Notice 0f trial was served on the attorney of Fanely on the 24th , , J April, for the Cayuga circuit, to be held on the 22d June. On the 27th April, notice of assessment of damages, directed to Virgil, was affixed in the clerk’s office.

This cause was tried at .the Monroe circuit in March, 1829. The action was on a bond for the payment of money. Five several issues were joined, three of which were found for the plaintiff, and two for the defendant. A motion for judgment non obstante veredicto was made by the plaintiff, founded on an affidavit, (setting forth the pleadings and the result of the trial,) and on a certified copy of the minutes of trial, furnished by the cleric of the circuit.

Motion to set aside an inquest. At the last August term, a rule for a commission was obtained by the defendants, con- . J taming an order that such rule should operate as a stay of proceedings. On the eighth day of May last, the plaintiffs noticed the cause for trial at the New-York circuit, to be holden on the twenty-fifth day of May.

The notice of taxation was served by putting the same under the door of the office of the agent of the defendant’s attorney, between the hours of 10 and 12 A. M. of the day of service, the door being shut and fastened.

Motion to vacate an order to stay proceedings made by a commissioner, as preliminary to a motion to set aside a report of referees on the merits, the commissioner, on application, having refused to revoke the same.

The party upon whom the notice was served claimed to name one of the commissioners, as in cases of the nomination of referees.

Judgment having been obtained against the defendant by default, at the last May term he obtained a rule that he be let in (-0 defend, on payment of the costs of the default and all sub- ’ 1 J . . sequent proceedings, and or opposing the motion for the rule, in twenty days ; the judgment to stand as security for the debt. Within the twenty days, the defendant paid the costs; but did not plead until 27th June, the rule of May term having been granted on the 20th May.

Motion to set aside a default for irregularity. The notice of the rule to plead was affixed in the clerk’s office, and the default of the defendant entered previous to the expiration of double the usual time for pleading. The defendant, on an affidavit that he is an- attorney of this court, although arrested on a copias, moved to set aside the default. It appeared that the defendant had no agent at Utica, where the declaration was filed and notice affixed.

Qüestion as to costs. The defendant transferí ed to the plaintiff a promissory note he held against one Metzger, and an endorsement on the note, guaranteed the payment of J . . the same. The plaintiff commenced two suits; one against the maker of the note, and the other against the defendant on the guaranty.

An alternative mandamus was ordered by this court (1 Wendell, 296,) to the general sessions of Onondaga, directing them to vacate a rule arresting the judgment on a conviction of one William Huntlev for perjury, or to shew cause. Cause was now shewn, and a peremptory mandamus refused.

Motion to set aside an inquest. The attornies for the parties resided more than forty miles from each other, and the defendant was entitled to fourteen days notice of trial. The notice was served 26 days before the trial, on the agent q£ £kc defen(3ant’s attorney, who transmitted the same to the attorney, by whom it was received on the second day after service on the agent.

Costs in action of replevin. Williams made a distress f°r ren^' Wright replevied the property, and declared in three counts : alleging the taking in the first count, in a certain close called Solomon Wright’s field; in the sec- and, in a certain close called the highway ; and in the third, in a certain close called Andrew Freeman’s bam : To which declaration Williams answered, by I. A plea of non cepit to the ■ whole declaration; II.

<p>An avowry in yodIoviii shewing’aconelusive bar to the action, is a perfect pleading, requiring an answer; although it follows immediately afproperty^in °a not “tobe consideredasmatdue! a return ty a*party'under such^plea being entite^ without avowsanee.</p>

Motion to set aside inquest. Notice of trial was given on the 38th March for the Wayne circuit, to commence on the seconc] Monday (8th) of June, issue having been joined on i gth March. On the 11th April, notice of motion for a commission to take the testimony of a witness residing in Upper Canada, to be made at the last May term, was served by the defendant.

David Percy sued Seth Parsons and three others in a justice’s court in the county of i . i • •, • Kensselaer, and declared against them in a single count m trespass quare clausum fregit; the premises stated as situate in the town of Hosick, in the county of Rensselaer.