Volume 20 — Johnson's New York Reports

THIS cause was submitted to die Court, by the counsel for the parties, without argument, upon the following case: The cause came before the Court of Sessions of Ulster county, in April, 1821, on an appeal from the order of two Justices, removing a pauper from the town of Kingston to the town of Marbletown. The Court of Sessions dismissed the appeal, and confirmed the order.

<p>Where land of a debtor is sold under an execution, pending a lease by the debtor, and before the rent has accrued, and a certificate is given to the purchaser, pursuant to the statute passed April 12,1820, (sess. 43, ch. 184.) the debtor, notwithstanding the sale and certificate, is entitled, until the time for redemption allowed him by the statute has expired and the sheriff’s deed is executed, to receive and sue for the rents which have in the mean time accrued ; for the possession and enjoyment of the land remains in the same state, after the sale and until the time for redemption has expired, as before the sale: And the sheriff’s deed does not retrospect, but must be dated after the time for redemption has Expired. Such a sale, is conditional merely, and the purchaser, until the sheriff’s deed is executed, has a lien only on the land.</p>

EJECTMENT for a house and lot in Poughkeepsie, tried before Mr. Justice Platt, at the Dutchess Circuit, in 1820. The defendant, by agreement, was madé defendant in the place of Moses Armstrong, who was the tenant in possession, at the commencement of the suit.

IN' ERROR, on certiorari to a Justice’s Court. The trustees of the Reformed Calvinist Church at Canajoharie, in the county of Montgomery, sued Dieffendorf before the Justice for the amount of his subscription, by which he engaged to pay them, annually, one dollar and fifty cents, and a load of wood, “ for the support of the ministry of the said church, as long as the Rev. John I. Waclc is and remains our regular preacher.” It appeared, that in September, 1816, the classis of…

THE plaintiff declared in covenant on an agreement, which the defendant, after craving oyer, set out. It was dated 12th of June, 1817. The defendant hound himself to pay the plaintiff 2500 dollars, to wit, 500 dollars, in one year from the date, 1000 dollars, in two years from the date, •' ^ and 1000 dollars, in three years.

IN ERROR, on certiorari to a Justice’s Court. O. and J. Williams brought an action of debt against Taylor, in the Justice’s Court. Taylor pleaded his discharge under the insolvent act of April, 1813. The discharge was dated December 22, 1818.

IN May, 1821, William Armstrong obtained a judgment, ™ the Court of Common Pleas of the County of Oneida, against Adam Rutt and Lewis Putnam, on a cognovit actionem. Rutt, one of the defendants, was an infant; and a writ of error, coram nolis, was issued, returnable in September, 1821. InMarch, 1822, the Court of Common Pleas gave a judgment of reversal, by default. At the return of the writ, a motion was made to quash it, on the ground of informality, which was denied.

THIS was an action of assumpsit, tried at the Cayugá Circuit, before Mr. Justice Pan JYess. The declaration contained the common counts.

IN ERROR, on certiorari toa Justice’s Court. Jackson sued Bartholomew before a Justice, for work and labour, &c. B. pleaded non assumpsit. It appeared in evidence, that Jackson owned a wheat stubble-field, in which B. had a stack of wheat, which he had promised to remove in due season for preparing the ground for a fall crop.

REPLEVIN for a cider mill and cider-mill press. Avowry, that the place in which, &c., is a certain farm of seventy acres, in Kingston, &c., whereof the defendant had been possessed for six years immediately antecedent to the 9th of May, 1830, as the tenant, from year to year, of Jacob L Trompar, who was, at the first letting thereof, seised in fee; and whilst such tenant, and long prior to said 9th of May, to wit, on the 1st of May, 1818, the defendant, at her own expense,…

THIS was an action of assumpsit, brought against the executors of John Smith, deceased.

EJECTMENT for land, in the town of Danube, in the ■county of Herkimer, tried at the Herkimer Circuit, in June, 1821, before Mr. Justice Platt.

<p>A tenant of a mortgator in position, after the mortgage has become forfeited, during the continuance of the lease from the mortgagor, may attorn to, and take a lease from the mortgagee ; and in an action brought against him by the mortgagor, for rent under his lease, he may set up such attornment as a legal defence.</p> <p>One of two lessees, after the lease has expired, is a competent witness to show that he had no beneficial interest in the lease, but joined in the execution of it,' merely as a surety for the payment of the rent by the co-lessee.</p>

ON certiorari to the General Sessions of Erie. Smith, who was one of the Justices of the Peace of the county of Erie, was indicted at the Court of General Ses- . r* 7 -n sions of the Peace of the county, for a misdemeanour, under the fourth section of the act, passed April 7, 1820, (sess. 43. ch. 159.) which enacts, “ that it shall not be lawful for any Justice of the Peace to issue or deliver to any constable, or to any other person, any blank summons, warrant, or other…

<p>IN ERROR, to the Mayor’s Court of the city of Albany,</p> <p>The defendants brought an action of debt against the plaintiff in error in the Court below, for the escape of William Brown, while in his custody, as sheriff, on a ca. sa. . JLlie declaration was m the usual form. The defendant pleaded nil debet, with leave of the plaintiffs to give any special matter, which might have been pleaded, in evidence* at the trial. The record of the judgment against Brown, in the Court below, and the ca. sa., and his arrest thereon, were given in evidence; and it was proved that L. H. Gansevoort was appointed sheriff of Albany, on the 6th of March, 1819, in the place of the defendant, H.; and William Brown was never in the custody of G., the present sheriff, nor was he assigned to him by the defendant, when he delivered over the county and prisoners, nor at any time since. The indenture of assignment, from the defendant, to (?., the present sheriff, dated March 20,1819, was given in evidence, by which it appeared that Brown was not named in it, or delivered over as a prisoner. It was ■ proved that G., the present sheriff, after the assignment, on being asked whether B. was in his custody, answered, that he was not, and had never been assigned to him verbally, or otherwise. After the commencement of the suit against the defendant, he admitted that he had forgotten to assign Brown to the present sheriff.</p> <p>It was proved, that when Brown was first arrested on the ca. sa., he gave to the defendant the usual bond, for the liberties of the gaol, and was, thereupon, suffered to go within the limits of the gaol liberties; and that he had never been seen beyond the limits, except on Sundays, and still continued within the limits of tire gaol liberties; and it appeared that the omission to assign Brown with the other prisoners, to the new sheriff, was unintentional. The defendant moved for a nonsuit, in the Court below; but the Court decided, that it was not necessary for the plaintiffs, to enable them to recover, to prove that Brown had been off the limits of the gaol liberties since his arrest, or that he was off the limits when the suit was commenced against the defendant, and refused to nonsuit the plaintiffs : and the defendant excepted to the opinion of the Court. The Recorder charged the jury, that the evidence, in his opinion, was sufficient to entitle the plaintiffs to recover : and the jury found a verdict for the plaintiffs accordingly.</p>

IN ERROR, on certiorari to a Justice’s Court. Racey sued the plaintiffs in error before a Justice, on a bond given by Warner, as constable, and M‘Kinney and Sturges, the other plaintiffs in error, as his sureties. The defendants below pleaded the general issue. On the trial, the plaintiff below proved that an execution had been deli» vered to Warner, as constable, which he had neglected to return, for upwards of thirty days.

IN ERROR, on certiorari to a Justice’s Court. ■Newkirk brought an action of trover against Buster for a deer skin. It appeared that N. was hunting deer on the 31st of December, 1819, and had wounded one, about six miles from B.’s house, which he pursued with his dogs. He followed the track of the deer, occasionally discovering Wood, until night; and on the next morning resumed the pursuit, until he came to B.’s house, where the deer had been killed the evening before.

<p>THIS was an action of assumpsit, for five thousand do!e Jr i lars. The declaration contained counts for goods, wares, and merchandises, sold and delivered, for five thousand dollars; and a quantum valebant thereon; the usual money counts for the like sum; and an insimul computassent, &c. The defendant pleaded, 1. JYon assumpsit; 2. Payment; 3. “ That after making the said promises and undertakings, in the said declaration mentioned, and before the commencement ot the suit, to wit, on the 7tn of Jlugust, 1818, at the city of New-York, he, the defendant, caused to be delivered, to the plaintiffs, his three several promissory notes, made payable to David yv. Childs, for 916 dollars and 67 cents, each5 dated May 18,1818, and by him indorsed to the plaintiffs ; one of the said notes payable in twelve months, one in eighteen months, and the other in twenty-four months, in full satisfaction and discharge of the said several promises and undertakings, in the said declaration mentioned, and of the damages sustained by the plaintiffs, by reason of the nonperformance of the said promises and undertakings; and which said notes they, the plaintiffs, then and there, accepted and received, of and from the defendant, in full satisfaction and discharge of the said promises and undertakings, 8ic. 4. That the defendant delivered to the plaintiffs, three several promissory notes, made and indorsed as described in the third plea, in full satisfaction and discharge of all promises and undertakings, made by the defendant to the plaintiffs, up to the said 18th of May, 1818, without this, that the defendant had assumed or promised to pay the plaintiffs any sum or sums' of money, since the said 18th of May, 1818, in manner and form, fee.; wherefore he prayed judgment,” &,c„</p> <p>There was a demurrer to the third and fourth pleas, and joinder in demurrer. The fourth plea was, afterwards, abandoned by the defendant’s counsel as indefensible.</p>

DATAIS, for the plaintiff, moved to quash the certiorari, in this cause, on the ground of its having been irregularly issued.

EJECTMENT for five acres of land in Gorham, in the county of Ontario, tried at the Ontario Circuit, before Mr. Justice Yates, in, June, 1821. James Wood, who was the husband of Jerusha Wood, one of the lessors, and the father of James, Henry, and Gilbert Wood, the other lessors, died in possession of the premises, about six years bef- re the trial, leaving four sons, viz. the three lessors above named, and Joseph Wood, his heirs at law.

IN ERROR, on certiorari to a Justice’s Court. B., and the other defendants in error, sued M‘Auley before the Justice, to recover the first instalment of a sum sub- ’ scribed by him for the repairs of a church.

THIS was an action of trespass. The declaration contained five counts. The first count charged, that the defendant, m et armis, broke the plaintiff’s close, (in the town of Richland, in the county of Oswego,) covered with water, and did, then and there, fish in the said close, and the fish, to wit, 300 salmon, 300 trout, he. of great value, Sic. then and there found, caught, took, and carried away, he.

THIS was an action of assumpsit on a promissory note, made by the defendants, at Montreal, in Lower Canada payable to the plaintiffs, (who resided in England,) or to their order, “ with interest until paid in England” The questions raised for the consideration of the Court were, 1.

ON certiorari to a Justice’s Court. Bradshaw, who was plaintiff below, declared for a tres-, pass, committed by the defendants, on his land, on the west side of the Waterford and Whitehall Turnpike, between the seventh and eighth mile stones, by the defendants’ entering 1 hereon, and cutting, &c„, young and thrifty timber 5 and demanded damages to 50 dollars.

SCIRE FACIAS to revive a judgment recovered in October, 1770, in the Supreme Court of the then province of New-York, in favour of John Morton against George Croghan, for 10,500 pounds of debt, and 81. 4s. 3d. damages and costs.

<p>WELLS, for the plaintiff, moved to vacate two several orders ofthe Recorder of the city of New- York, made in the above cause; and for a rule that a writ of inquiry of damages issue iu the cause, to be executed before one of the Judges °f this Court. He read an affidavit, stating, that, at the last January term, the Court, on demurrer, overruled the special pleas put in by the defendants; but gave them leave to amend the pleas in forty days, on payment of costs. That, a few days before the expiration of the forty days, the fie-verier (Mr. RiJeer) granted an order, extending the time to amend forty days more ; and on the 15 th of April last, the Recorder granted a second order, extending the time to amend to the last day of the present term, to give the defendants an opportunity of applying to the Court to point out and specify to them such further particulars, not referred to in the opinion delivered by the Chief Justice, on the decision on the demurrer, wherein the pleas, in the judgment of the Court, were considered defective.</p>

MOTION to set aside a justification of special bail. It appeared that the Sheriff of the county of Steuben, together with another person, had become special bail for the defendant, on the return of the writ of habeas corpus cum causa, in this cause; and that both of them justified before a com~ missioner.

THIS was an action for a breach of covenant. The plaintiff declared, on an agreement, under seal, dated Nomember 15, 1816, by which he agreed to sell to the defendant, and the defendant agreed to purchase of the plaintiff, one acre of land; (particularly described;) and the defendant covenanted and agreed to pay the plaintiff, as the consideration of the purchase, two hundred and fifty dollars, on the 1st of January, 1818, with lawful interest, &c.; and the plaintiff…

<p>In an action brought by an administrator? for a debt due tohisintestatfy the defendant cannot set off a. debt due from the intestate; purchased by the defendant after the death of the intestate.</p>

AFTER the notice of a motion in this cause, and affidaVÁ °f the service were read, the counsel for the defendant rajsed a preliminary objection to the regularity of the sere 1 . , o vice of the notice, though more than four days, exclusive of the day of service, on the ground of its having'been made on ^Sunday. ' , '

THIS was an action of assumpsit, tried at the Dutchess Circuit, in April, 1821. The declaration contained the common counts for goods sold and delivered, money paid, &c. Plea, non-assumpsit, with notice of a set-off, and of special matter to be given in evidence at the trial. At the trial, the plaintiff proved his demand against the defendant, for goods sold and delivered to the defendant, amounting to 350 dollars and 99 cents.

IN ERROR, to the Court of Common Pleas of Seneca f county. Gorham brought an action of assumpsit against Chamberlain, in the Court below, and declared on a promissory note made by the defendant (C.) to the plaintiff, (G.) for dollars, payable in four years after date. The note was not made payable to order, or negotiable.

<p>THIS was an action of assumpsit, on a bill of exchange drawn by the defendants, merchants in Augusta, in the state 0f Qeorma on the 6th of March, 1819, upon Townsend and White, merchants, in the city of JVew-York, for five hundred dollars, payable sixty days after sight, to Starr and R°ss> or order, by whom it was indorsed to the plaintiff, The cause was tried at the JVew-York Sittings, in June, . t 1821, before the Chief Justice. JLhe bill was presented for acceptance on the 20th of May, 1819, and notice of non-acceptance sent, by mail, on the next day, to the 1 ’ v ' J . drawers, by a notary, directed to them at Augusta, in Georgia. On the 22d of July, 1819, the same notary presented the bill to the drawers for payment, which they refused, alleging the want of funds. Notice of non-payment was sent through the post-office, two or three days afienvards, addressed to the defendants, at Savannah, in</p> <p>Townsend, one of the drawees, who wás a witness for the plaintiff, testified, that on the 20th of May, 1819, the drawees had no funds in th^ir hands, belonging to the defendants, and had then accepted drafts to the amount of three or four thousand dollars more than they had-funds of the defendants, and that this was the last bill drawn by them. That the want of funds proceeded from a fall in the price of cotton shipped by the defendants, to T. and W, ; that by an agreement between them, the defendants were authorized to make purchases of cotton, on the joint account of themselves and T, and W., and to draw on T. and W, for the amount. That on the 26th of April, 1819,. T, and W. stopped payment. That after the 6th of March, and before the failure of T. and W., they had received a considerable amount of cotton from the defendants, but had accepted the bills of the defendants to a larger amount than the value of the cotton so shipped, and the difference was owing to a loss on the cotton shipped; that if the defendants were to pay all the bills, T. and W. would owe them five or six thousand dollars j but if T. and W. were to take up all the bills, the drawees would owe them three or four thousand dollars. It was proved, that the mail, which left Augusta about the 10th of March, was lost; and that the mail goes from that place to N'ew-Yorlc, in ten days, and leaves the former place three times a week. That where bills are remitted by merchants, it is the usual course to send the bill by one mail, and to advise by the next.</p> <p>A verdict was taken for the plaintiff, for five hundred and seventy-two dollars, subject to the opinion of the Court on a case, as above stated.</p>

THIS was an action of debt, on the penalty of a bond, executed by the defendants, William Waring, William Ba-her, William Vaughan, Abiathar Waldo, and A. Pease, to the plaintiff, as Sheriff of the county of Jefferson, on the 30th of August, 1816.

IN ERROR, to the Court of Common Pleas, or May- or’s Court, of the city of New-York.

THIS was an action of assumpsit, brought by the plaint.g.g^ ag en(jorseeS} agajnst the defendant, as drawer of a bill ofexchange. The bill was dated Antigua, July 18, 1817, for £381 16s. 2\d. sterling, on Messrs.

EJECTMENT for the non-payment of rent, tried at the Columbia Circuit, in November, 1821, before Mr. Justice Van Ness. The premises in question were demised, on the 1st of November, 1797, by Robert R. Livingston, since de- ® ceased, to the lessor of the plaintiff, for his natural life, and the life °f wife, reserving an annual rent of 82 dollars.

EJECTMENT to recover lot No. II, in the sixth division of the Minisinlc patent, tried at the Orange Circuit, in September, 1820, before Mr. Justice Woodworth. The plaintiff produced evidence, by which he deduced a title to John Pintará, one of the lessors.

<p>The In-within this ject^the8 jurisdiction and laws of the state. These nofaiiene, but citizens, owing allegiance to the govern-tided To lits PI They°nmay acquire property, by purchase or descent, and aliene or transmit the same, as natural born citizens ; subject, however, to such regulations as the legislature may prescribe, for their security against imposition and fraud.</p> <p>A deed, therefore, executed in 1797, in the usual form, by the only son of an Indian, to whom lands had been granted by the state, for his services, as a soldier in the revolutionary war, claiming and holding the same, as heir to his father, is valid; there being at the time of the conveyance, no law of the state, disabling individual Indians9 seised of real estate,, from, áífening their lands, or regulating the manner of their conveyance.</p>

THE proceedings in this cause were removed by ccrtio ?'«ri from the Court of Common Pleas of Jefferson county. jyn attachment was issued, under the act of the 10th of Au- ’ gust, 1798, (1 N. R. L. 130. sess. 22, ch. 1.) and the ^ amending the same, passed February 28, 1817, (sess. 40. ch. 60.) against the schooner Appelonia, for labour and materials furnished for the said vessel, at SacJcetfs ....

<p>ASSUMPSIT for goods sold and delivered. The goods were consigned, by merchants in England, to the plaintiffs, in Boston, as their factors, who sent them to Messrs. Goodhue Co. of New- York, and were invoiced as barilla. After offering the article, for some time, at private sale, Messrs. G. fy Co., pursuant to instructions, sent it to auction, where it was sold, after being advertised in the newspapers, to the defendants, at a credit of sixty ^y^ q ^ Co. offered it for sale as barilla, and it was advertiSed and sold as such, and was described in the bill ’ of parcels, delivered to the defendants, as barilla. The . „ quantity sold was 35 tons and 35 pounds, at 30 dollars perton.</p> <p>Barilla is a substance procured from a plant of that 1 name, cultivated on the coasts of the Mediterranean sea* and there manufactured. It contains soda, or alkali, which constitutes its only value, being used in the manufacture of . soap, and for which purpose, it was bought by the defendants, who are soap manufacturers. After using part of the article, the defendants discovered that it was not barilla, 7 B but kelp, which is a substance greatly resembling barilla, but containing a very small proportion of the alkali, or s0^a' Kelp is made in Great Britain, from sea-weed, and cannot be distinguished from barilla, except by analysis. __ . f. J , Barilla contains about 50 per cent, of alkali, or soda, but kelp not more than 5 per cent. Kelp is not used in this country, in the manufacture of soap, nor for any purpose, it being in hard masses, and not worth the expense of break-mg it up; though it is used as a substitute for common salt, jn Qreaf Britain, where they use barilla in the manufac- ‘ ture of soap. Previous to the sale at auction, the article was several times examined by one of the defendants, who bid for, and purchased it at auction, for them; and a sampie of it was exhibited at the time of sale. Goodhue &f Co., before the sale, knew that the article was of bad quality, but did not know that it was any other than barilla. On discovering that the article was not barilla, and before the term of credit given at the sale was expired, the defendants offered to pay Messrs. Goodhue fy Co. for six and three quarters tons which had been used, at the rate of thirty dollars per ton, and to return to them the residue; but Goodhue Co. being agents, declined the offer; and the present suit was brought under their direction, in the name of the plaintiff; it being agreed by the defendants, that no objection should be made on that account; but that the case should be considered in the same manner as if the suit had been brought by the English consignors. The cause came before the Court, on a case containing the facts above-stated.</p>

THIS was an action for a libel. The declaration contained two counts, and charged the libel to have been composed and published on the 10th of April, 1821, of the plaintiff, and of and concerning his profession as an attor- , . , ' ney, and particularly as attorney of the Jefferson County Bank. The libel set forth, also, charged the plaintiff with being a friend to slavery, and trafficking in human flesh, The defendant pleaded, 1. Not guilty to the whole declaration. 3.

ASSUMPSIT for goods sold and delivered, &c. The declaration contained the common counts. The defendant pleaded, 1. Non assumpsit; 2. Non assumpsit infra seoc annos; 3.

THE defendant was sued, as Sheriff, for talcing insufficient pledges, in an action of replevin; and for taking no pledges. The declaration contained four counts. Tlie 1st, 7 2d, and 3d counts were for taking insufficient pledges, and the fourth count was for not taking pledges. There were -demurrers to the first, third, and fourth counts, and an issue joined on the second count.

<p>Insurance, by the defendants^6 on"dz fraín ’ atJW York to Havanna, and, at and from **uira,t0 and Porto Cabello, them, at a preyer'cmi**1' to return five and cent, if the risk ended at H., without percent' if oniy one of ^the ports was used, andjhe without loss: mcrican pro-cargo", consisting of flour and pork, was purchased of the plaintiff, a native American citizen, residing in New-York, by L,, a Danish citizen of Sl^T/iomas? then in New-York, under a contract entered into here, by which the plaintiff agreed to deliver the cargo to L., at Havanna, or at Laguira, or Porto Cabello, at Jive per cent, advance on the invoice, or cost, paid by the plaintiff, and the freight, and premium of insurance, paid by the plaintiff. The cargo was consigned, by the plaintiff, to Spanish merchants, at Havanna, (designated by L.) with instructions to dispose of the cargo, for the plaintiff’s account, &c. or to send it to another market, that is, to a windward port. The bill of lading expressed, that the. cargo was shipped for the account and risk of the plaintiff, to be delivered at Havanna, to H. &C, or their assigns, paying no freight, it being the property of the owner of the vessel : On the.ar* rival of the vessel at Havanna, the consignees interlined the bill of lading with the words, u or a marketand directed the master to proceed to Laguira ; and while proceeding to Laguira± the vessel was captured, near that place, by a Yenezuelanprivateer, and carried into a port in the island of Margarita, and the vessel and cargo libelled in the Admiralty Court there, and the cargo condemned as prize, &c.</p> <p>In an action on the policy to recover for a total loss : Held, that the cargo was, and remained the property of the plaintiff, until its delivery at one of the ports mentioned ; that there was no delivery, or acceptance of it, at Havanna; and that the consignees there, in directing the master to proceed to L., acted as agents of the plaintiff, who continued to be, and was the owner of the cargo, at the time of its capture; and that, therefore, the warranty was complied with.</p> <p>That such a contract of sale is legal and valid, both by the municipal law of this country, and by the law of nations, and does not destroy the neutral character of the property.</p> <p>That the plaintiff was not bound to disclose to the defendants the fact and circumstances of the contract; for even if they were material, yet the insured is not obliged to communicate any fact, as to which there is a warranty, express or implied.</p>

<p>THIS was an action of assumpsit, brought by the plaintiffs, as trustees, &c. of Frederick Mullett, an absent auseni debtor, against the defendants, as executors of Isaac Clason, deceased. The declaration contained the usual money counts, and on an account stated between Clason and Mullett, alleging the promise to be by Clason to Mullett. There were other counts, which stated the promise to be from the defendants to Mullett; and similar counts, stating the promise to be from the defendants to the plaintiffs. The defendants pleaded the general issue, and, by a written agreement, the attorneys of the parties stipulated that, on the trial of the cause, the following facts should be admitted as proved : Isaac Clason, of the city of JYew- York, a merchant, die¿ in February, 1815, and the defendants are his executors. C.~, at the time of his death, was indebted to M., on the balance of an account, two thousand six hundred and sixty-five pounds, one shilling and ten pence, sterling, and which was never paid to M., or the plaintiffs. After the said sum became due and payable, M., on the 14th of February, 1815, became, and was duly declared a bankrupt, according to the laws of England; and, on the same day, an assignment of all his personal estate and choses in action, was duly made, by the commissioners named in the commission of bankrupt, to Henry Page, in trust, for the creditors of M. On the 25th of February, 1815, the commissioners and Henry .Page, assigned all the personal estate, and choses in action of M., in the manner prescribed by the laws of Englandy to three assignees, named. On the 26th of February, 1815, M., in consideration of ten shillings, assigned to the same three assignees, “ all the debts, personal estate, and effects, whatsoever, of him, F. M., not being, arising, or growing within England, which he was entitled to, or possessed of, or which any other person or persons were possessed of, or entitled to, in trust for him,” in trust, for the same purposes mentioned in the former deeds of assignment.</p> <p>F. M. is a natural born subject of the King of Great Britain and Ireland, residing in London, where he has been a merchant for above twenty years. On the 7th oí August, 1816, a warrant was issued under the act entitled, “ An act for relief against absent and absconding debtors,” (1 NR. L. 157. sess. 24. ch. 41.) to attach the estate of F. M. in this state, of which notice was duly published on the 8th of August, 1816; and on the 27th of August, 1817, the plaintiffs were duly appointed trustees for all his creditors, pursuant to the act.</p> <p>In the lifetime of Clason, a ship, called “ The Star,” belonging to him, was libelled and condemned in the Admiralty Court at Halifax, Nova Scotia ; and he appealed from the sentence of condemnation to the High Court of Admiralty in England$ and appointed Messrs. Baring, Brothers Co. of London, his agents, to prosecute the appeal. The appeal was pending when C. died; and the defendants appointed Baring, Brothers &f Co. their agents, in regard to the appeal. On the 21st of May, 1818, Baring, Brothers Co., with the approbation of the defendants, compromised the appeal, and received from the captors of the ship a large sum of money, for the use of the defendants. In October, 1818, the assignees of Mullett, as a bankrupt, pursuant to law and the custom of London, procured an attachment to be issued out of the Lord Mayor’s Court of that city, by virtue of which, the sum of £3,167 sterling, money of the defendants, was attached in the hands of Baring, Brothers fy Co., and by regular proceedings thereupon, judgment was rendered in the Lord Mayor’s Court, in favour of the assignees, for £3,024 Is. 6d. sterling, of the moneys of the defendants in the hands of Baring, Brothers &/ Co. j and, on the 1st of February, 1819, the assignees of M. had execution for that sum, and Baring, Brothers &f Co. were compelled to pay that amount to the assignees.</p> <p>The cause was tried at the Mew- York Sittings, before Mr. Justice Platt, on the 12th of April, 1821, when a verdict was taken, under the direction of the Judge, for the plaintiffs, for 17,095 dollars and 4 cents, subject to the opinion of the Court, on a case containing the above facts.</p>

EDWARDS, in behalf of the Corporation of New-York, at a former term, presented a petition, stating, that the Corporation, being desirous of extending, enlarging, and improving Beekman-street, in said city, did, in the term of May, 1816, present their petition to the Court, for the appointment of commissioners of estimate and assessment, for that purpose, pursuant to the “ act to reduce several laws, relating particularly to the city of New-York, into one act,” passed April…

NOTICE of the rule to plead, m this and five other . , . . causes, in which the names of the parties were different, directed to each of the defendants respectively, and an aflidavit of the service entitled in all the causes, was filed, and ... , a default thereupon entered m each cause, by the clerk. A question arose, which was submitted to the Court, whether the clerk was entitled to charge fees for six affidavits, or for one only r

THE defendant, in this cause, moved to change the venue from the county of Dutchess to the city of New-York, on *e ground that he had material witnesses residing in the latter place $ and, also, because, being an attorney and counsellor of the Court, and living in the city of New-York, he was privileged to have the venue where he resided, and where the Court w*as held; and such, he said, was the English practice.

E. WILLIAMS, for the plaintiff, moved for leave to strike this cause from the calendar of enumerated motions, on the ground, that no copy of the demurrer book had been delivered to the plaintiff’s attorney. He cited Peck v. Peck, 14 Johns. Rep. 919. Delamater v. Smith, 16 Johns. Rep. 2. 1 Dunlap's Pr. 398. 3 Johns. Rep. 496. note.

THIS was an action on the case, brought to recover damages, for a deceit in the sale of a negro wench. The defendant pleaded, 1. Not guilty : 2. Not guilty within six years next before exhibiting the plaintiff’s bill. The plaintiff’s writ was tested the 23d of October, 1820.

<p>IN ERROR to the Court of Common Pleas of Washington county. Williams and Boies sued Breese in a Justice’s Court, on a promissory note, dated December 13, 1817, *"or twenty-six dollars, with interest. Breese admitted, that jJe gave the note, and pleaded in bar a discharge under the insolvent act, and produced his discharge, dated April 28, 1818, signed by William Robareis, first Judge of the Court of Common Pleas of Washington county. The plaintiffs demurred to the plea; and the Justice, considering the discharge invalid, gave judgment for the plaintiffs, for 28 dollars ant* cents. The defendant appealed, under the act passed April 10th, 1818, (sess. 41. ch. 94.) to the Court of Common Pleas of Washington county. On the return of the proceedings, there was, according to the practice of that Court, á general assignment of errors, and a joinder of in 77 , ° ° nullo est erratum ; and on this issue,'the Court of Common Pleas affirmed the judgment of the Justice’s Court; and 0n the judgment of the.Common Pleas of Washington, a writ of error was brought, returnable to this Court,</p> <p>On the return to the writ of error, the case was submitted without argument.</p>

IN ERROR, on certiorari, to the General Sessions of the ^ n ^ 7 7. Jreace oí Jbranklm county.

<p>THIS was an action of assumpsit on a promissory note, made by the defendant to Abner Cunningham, and by him indorsed to the plaintiff. The cause was tried at the Orange circuit, in April last. After the signatures of the maker and indorser were proved, A. Cunningham, the indorser, was called by the defendant’s counsel as a witness. The plaintiff’s counsel objected to his competency ; but lie was admitted1 by the Judge, and stated, that the note in question was given to take up a former note made by Nathaniel Sands to him, and indorsed to the plaintiff, and also a note made by James Cunningham to him, and indorsed to ,the plaintiff, on which notes five per cent. • above the legal interest was taken by him, though no new or additional premium was taken on making the note in question. That the two notes above mentioned were prosecuted by James Everett, the attorney of the plaintiff, against the makers; and the witness, acting for himself and the defendants, delivered the note in question eithér to the plaintiff or E., in settlement of those suits. The plaintiff’s counsel then produced an account stated, in which the note in question, annexed to the account, was received in part payment of judgments against James Cunningham and Nathaniel Sands ; and on which account, signed by John Everett for James Everett, was a certificate by J. E. that the note annexed was the same referred to in the account, and was" received in part payment of the judgments mentioned in the account. The defendant’s counsel objected to the evidence, on the ground that the records of the judgments mentioned in the account ought to be produced; and the Judge on that ground rejected the evidence, and directed a verdict for the defendant.</p> <p>It was agreed, that if the Court should be of opinion that JJbner Cunningham, the indorser, was properly admitted as a witness, and that the account and certificate of John Everett were properly rejected, the verdict was to stand; otherwise, a new trial was to be granted.</p>

ASSUMPSIT on a promissory note, dated October 13, 1820, made by the defendants, M'Cullum, and Merriam, for 200 dollars, payable on the first of January, 1821, to James £verffl or bearer, with interest. Plea, non assumpsit„ The cause was tried before Mr. Justice Woodworth, at the Otsego circuit, in September, 1821. The plaintiff proved making of the note.

Hibbard brought an action oí assumpsit against Wheaton in a Justice’s Court. The declaration contained the common money counts, to which the defendant pleaded . e v * non assumpsit, with notice that the money received by the defendant was for excess of interest above the lawful rate of interest in The Justice gave judgment for the plaintiff for thirty-five dollars, damages, and three dollars and sixty-nine cents, costs.

CADY, for the plaintiff, moved to amend the judgment record in this cause, by striking out that part of the judgment which awarded costs to the defendant. He said, that this was an action of audita querela, in which there was a demurrer, and judgment given thereon for the defendant, in August term last, with costs. He contended, that in audita querela, no costs can be recovered by either party: 1. Because, costs are only recoverable by statute ; and the statute (1 JV‘.

OAKLEY, in behalf of a creditor, moved to set aside the judgment which had been entered up in this cause, on a bond and warrant of attorney, on the ground of fraud.

<p>J. MAYNARD, in behalf of the defendants, who were sureties for Lewis Birdsall, late Sheriff of Seneca, moved to set aside the test. fi. fa. issued against them; and to vacate the rule on which the execution had been issued, with costs, to be paid by Andrew Jackson. It appeared, that a judgment was obtained at the last term, on the bond given to the Peopie by the Sheriff of Seneca, and the other defendants, as his sureties, under the second section of the act, concerning Sheriffs, &c. (Sess. 36. ch. 67.) And which bond had been prosecuted at the instance and on the motion of Samuel Meeker and Jacob W. King. By the sixth section of the act, it is declared, that in case of any recovery by any party aggrieved, against any Sheriff, for any default, &c., it shall be lawful for the Judges of this Court, upon motion in open Court, to order the bond given by the Sheriff to be put in suit against him and his sureties; and' when judgment is obtained, the Court shall, on motion in open Court, direct so much to be levied thereon, as shall be sufficient to pay to the party aggrieved, his debt, &sc. And that if, after judgment obtained upon such bond, any other party aggrieved, and who shall have recovered any debt or damages against such Sheriff, for any default, &c., shall*apply to the Court for relief, the Court shall, upon motion in open Court, direct such further sum to be levied on such judgment, &cc., as shall be sufficient to pay the debt, &zc. to such party aggrieved.</p> <p>On the test. fi. fa., issued in the cause, was the following indorsement: “ The Sheriff of the county of Seneca is directed, by order of this Court, to levy, on the within execution, the sum of 89 dollars and 98 cents, with interest, from the 26th of May, 1821; it being the amount of a judgment recovered in this Court, in favour of Andrew Jackson against Lewis Birdsall, late Sheriff of Seneca county, for default in his office, in 1816.” The rule for leave to issue execution, and to collect the money, as indorsed on the test. fi. fa. was obtained in open Court, on an affidavit, stating, a recovery by A. Jackson against L. Birdsall, late Sheriff, &c. But the defendants, who were sureties for the Sheriff, had no notice of the motion. L. B. took the oath of office, as Sheriff, the 15th of May, 1816, and the bond was executed the same day. He was, again, sworn into office as Sheriff, on the 21st of May, 1817, but the sureties now sued, were not bail for him, during the last mentioned term.</p>

ON producing the record in this cause, it appeared, that the action was brought on a bond given by John S. Davis, ^ate Sheriff of the county of Oswego, and his sureties, for the performance of his duty as Sheriff, pursuant to the statute ; and that the same had been prosecuted, by leave of the Court, at the instance of Barent Walradt.

EJECTMENT for lands, &cc, in JVorthfield, in the county of Richmond, tried before the Chief Justice, on the 31st M May, 182_ _ _ _ Jacob Corson died seised and possessed of the premises iii question, and other real estate, m 1772, leaving three children : Mary, the wife of John Simonson ; Cornelia, wife of Ernest Under, and, after his death, wife of James . . Dujfie, and, after his death, wife of Gozen Ryers; and Ehzabeth,- wife of Jacob Sebring.

J. A'. SPEJYCER moved to set aside the capias ad satisfaciendum in this cause, on the ground that the judgment-roll was not filed in the clerk’s office, at the time the ca. sa. was is-7 sued. It was admitted, that the rule for judgment was duly entered, and the judgment-roll regularly signed before the ca. sa. issued; but the record was not filed until afterwards, though before notice of the present motion.

IN ERROR, on certiorari to a Justice’s Court. Shufelt was plaintiff below/and proceeded by summons, on the return of which, issue was joined. The cause was adjourned until the 14th of January, at 2 o’clock, P. M. The defendants appeared according to the adjournment, and were ready to proceed.

A WRIT of mandamus was issued, at the last term, di-rected to the Justices of the General Sessions of the Peace Herkimer county, commanding them to render judgment on the verdict found on the trial of James Boyle, in that . „ t o Court, on an indictment for perjury, or show cause, Sic.

EJECTMENT for lot No. 41., in the north-east quarter of the town of Columbus, in the county of Chenango, tried before Mr. Justice Van Ness, at the Chenango circuit, in June, 1821.

THIS was an action on a policy of insurance, dated Oetober 28, 1818, on the ship Montgomery, “ from New-Yor'k t0 Eustatia, with liberty to touch and trade at St. Eustatia9 on the outward passage, and at and from St. Johns y with liberty to touch at St. Croix, for freight, to a port of ¿jsc}large }n the United States.” The declaration contained o three counts on the policy, and the general money counts, - „ . _ -. , . _ &c. The first count set forth the policy of insurance,…

<p>MOTION, in behalf of the defendant, that the order of W. Howell, first Judge of Ontario county, directing the defendant to be held to bail, be vacated j and that the Sheriff ' of Ontario be directed to deliver up the bail-bond, fee. This was an action for a libel; and the affidavit, on which the Judge made the order, set forth the libel, and stated, that seeurity for any damages to be recovered by the plaintiff, required that the defendant should be held to bail. The plaintiff now offered a supplementary affidavit, that the defendant was a young man, without family, having no visible property, except his printing press, fee.; and that he was informed, that the defendant intended to leave the state, fee.</p>

THIS was an action of assumpsit, tried before Mr. Justice Woodworth, at the Washington Circuit, in June, 1821. The declaration contained a general count for land sold and conveyed to the defendant, and the money counts. It was proved, that the plaintiff owned four sixths of a certain farm, and the defendant two sixths, as tenants in common.

IN ERROR, on certiorari to a Justice’s Court. Hale brought an action of debt, in the Court below, on a judgment obtained in a Justice’s Court, the 16th of April, 1816, for 10 dollars and 73 cents. Execution had been issued on the judgment the 3d of August, 1816; but the constable absconded, and it was never returned.

REPLEVIN for books taken by the defendant from the possession of the plaintiff.

<p>The words " you have sworn to a in’themselves^ actionable; out if it be averred, that spoken of'and piaintiff” and of and con- and "the * evithe plaintiff in a caüse pend-angina Court, the count concient cause action.</p> <p>Averments, by way of in-the firsTcouut tlon win "id a subsequent wouid’, othertive^ when" it clearly refers to the first count, which is good.</p> <p>Where words charged as being slanderous, are proved to have been spoken In relation to' a part of the evidence given by the plaintiff, as a witness in a cause, as to a particular fact sot material to the point at issue in the cause, they are not actionable.</p>

tiff, on a com THIS was an action for slander, tried before Mr. Justice Platt, at the Montgomery Circuit, in November, 1831.

IN ERROR, on certiorari to a Justice’s Court. Gardner brought an action of debt against Jones, before a Justice’ for the amount of an execution issued on a judgment in a Justice’s Court, in favour of the plaintiff, against one Dennison, for 31 dollars and 46 cents, which the defendant bad received as a constable, on the 3d day of October, 1821, and which was not returned by him until the 18th of March, 1832.

THIS was an action of ejectment, tried at the Madison circuit, in May, 1821, before Mr. Justice Pan JVess. Abijah Parker, deceased, of Madison, was admitted to be the common source of title to the parties. The lessor of the plaintiff claimed as son and heir of A. Parker, by an alleged marriage with Molly Nutter,> in 1763. The defendant claimed, by purchase, under the children of A. P., by Phebe Harris, by a marriage between them in 1789.

AN alternative mandamus was granted, at the last term, directed to the Judges of the Court of Common Pleas of Washington county, commanding them to vacate a rule of . T „ that Court, m the cause of Abraham Allen, survivor, fee. appellee, and A. L. Blanchard, appellant, ordering the same io be referred, fee., or to show cause, fee. From the return, it appeared, that Allen sued Blanchard before a Justice of the Peace, in an action of assumpsit, for 50 dollars.

THIS was an action of assumpsit, tried at the Cayuga Circuit, in May, 1822, before Mr. Justice Platt. Lewis Toan made a note, dated April 2, 1818, by which, for value received, he promised to pay the defendant, or order, six hundred dollars, on the first of April, then next, with interest.

THIS was an action of assumpsit, brought by the plain- . , , tiff, as endorsee of a promissory note, against the defendant, as endorser. The note, dated November 22, 1816, was made by Joseph A. Bostwklc, for 1,500 dollars, payable to the defendant, or order, at the Middle District Bank. The declaration was in the usual form, with the common money counts. The defendant pleaded non-assumpsit and payment.

THIS was an action of assumpsit, tried at the Ontario circuit, in June, 1821, before Mr. Justice Yates.

<p>H. T.as^heii-1 at'iaw of his father, and who was about to com-™cove/UltSthe lt°Entered into an agreement who^h'ad listev,6^ by whichhecovesideration of tl to convey th 1 q6 plf inttf part of the pro-should bef'rethe "pialntiff'in consideration nant“&c”propay^ear^nd sustain, the one half of all the expenses occur in^the prosecution^ of suits, &c. The drewdant,'the agreement, and subscribed it as a witness, as attorney of H 71., and the H. T., who plaintiff, brought actions of ejectment against the persons in possession of the land; and, afterwards, by virtue of a power of attorney from H tZ1., foy that purpose, but without the knowledge of the plaintiff, compromised with the tenants, and received from them a large sum of money.</p> <p>In an action of assumpsit for money had and received to the use of the plaintiff, brought by him to recover the one fourtl] part of the money so received by the defendant: Held, that the agreement between the plaintiff and H. T., was illegal and void, under the first section of the act to prevent and punish'ckampérty and maintenance ; (sess. 24. ch. 87. N. R. L. 172.) and that the plaintiff could not, therefore, recover against the defendant.</p> <p>To make such a contract illegal and void, for champerty, it is not necessary that the land should be held adversely.</p>

THIS was an action of assumpsit on a promissory note, made by the defendant, April 6, 1816, payable to the plaintiffs, or order, six months after date, for 68 dollars and 5 cents. The defendant pleaded, 1. JYon-assumpsit. 2.

IN ERROR, to.the Court of Common Pleas of the county or Saratoga. Lamb brought an action of assumpsit against Cornell, in the Court below, for the use and occupation of a dwelling house and lot of land. The defendant pleaded non-assumpsit. It was proved, at the trial, in January, 1821, that the defendant had occupied the premises for six years, and that the annual rent was 25 dollars.

THIS was an action of ejectment for laud in Warwick, tried at the Orange circuit, in April, 1822, before Mr. Justice Yates. The plaintiff’s lessor, Sally Totten, claimed title to the premises as heir at law to her father, Silas T., deceased, The seisin of Silas Totten of the premises, his death, and that the lessor was his only child, were proved by the plaintiff.

THIS was an action of assumpsit against four defendants, two of whom were returned, not found.

THIS was an action of assumpsit, to recover the amount of merchandise shipped by' the plaintiff to Havanna, and there received and sold by the defendants, partners, under ^le 6rm of Packard Gowen, on commission. The cause was tried at the JYew-York Sittings, in June, 1821. On the 16th June, 1817, the plaintiff, at JYew-York, shipped on board of the brig Mary, Francis Smith, master, bound to Savanna, five bales of merchandise, consigned to the master, for sale.

IN ERROR, to the Common Pleas of Madison comity. Gates brought an action of assault and battery, &c. against WiTliam Lounsbury¿ in the Court below. The declaration was for an assault and battery, in striking, beating, bruising, and wounding the plaintiff. _ The defendant pleaded, 1. Not guilty. 2.

A WRIT of certiorari was issued, directed to the Mayor, Aldermen, and Commonalty of the city of New-York, returnable in August term, 1820.

<p>THIS was an action of trespass, de bonis asportatis, brought against the defendant, who, as Sheriff of NeioYork, levied on, and took away certain goods, under two wiats °f fi• fa- against Elijah, Joshua, and Abraham Secor, in favour of D. R. Lambert. The cause was tried at the JYew-York sittings, in June, 1821, before Mr. Chief Justice Spencer. The taking and value of the goods were admitted.</p> <p>The plaintiffs claimed title to the goods in question under an indenture tripartite, between E.,J., and A. Secor, of the first part the plaintiffs, of the second part, and the creditors of 1 1 7 e 1 the Secors, named in a schedule annexed, who may become parties, of the third part; bearing date the 20th of July, ]_819, whereby the Secors, then merchants, and trading ’ J 7 7 £> under the firm of E. Secor &f Co., assigned to the plaintiffs all their property, either joint or several, real and personal, *n possession, reversion or remáinder, (their wearing apparel ancj household furniture excepted,) and also the debts and, , 7 demands due to them, either jointly or severally, and particularly their stock in trade then in their store, No. 180 Broadwm,. upon trust, that the grantees shall sell the estate conveyed, and collect all the debts, and after paying themselves the expenses, and for their services in the execution of the trust> and for services in endeavouring to obtain the discharge of the grantors, or either of them, and also such .. 0 , sums as the grantees may be obliged to pay L. Secor, (one t*16 grantors,) for the maintenance and support of himself and his family, until the first day of May; 1820, not exceeding the rate of. 2,000 dollars -per annum, and which allowance to cease, after all the creditors, parties of the third part, shall have subscribed these presents, or after the gran-1 , tors, or 25. Secor, be discharged, by operation of law, from all Ms debts, then that the assignees shall pay to E. Secor COO dollars, for the purpose of paying off small accounts for family expenses of himself and family, or the like demands against either of the grantors ; and then out of the proceeds of the assigned property, pay all the debts of the grantors specified in the schedule A., marked first, second, third, fourth, fifth, and sixth classes, in their respective order 5 those in the first class to be fully paid, with interest, and so, in the order, giving preference according to the classes; provided, that the several creditors should, on or before the 1st of November then next, become parties to the assignment, by executing the same : and upon the further trust, that in case any of the creditors named in the several classes, should not, within the time limited, become parties to the assignment, then the grantees should pay to the grantors, the proportion of such of the creditors who neglect or refuse to execute these presents. The deed contained, also, a release, to be executed by all the creditors, releasing the grantors from all demands on them, in law or equity. There were other provisions in the deed, which it is not necessary to take notice of here.</p> <p>It appeared, that Austin if Andrews, two of the plaintiffs, sent a clerk to take charge of the store occupied by E. Secor if Co., in October, 1819, about three weeks before the levy was made by the defendant; that he was in the store when the levy was made, and that the store had been shut up from the time of the assignment until within three weeks before the levy. That the object of the clerk’s going to the store, was to sell the goods which had been assigned, no other goods having been put in the store. The goods assigned, consisting of carpeting, were those levied on by the defendant. The name of “ E. Secor &f Co., carpet store,” which had been painted on the store, had been erased before the levy.</p> <p>Very few of the creditors executed the assignment, and, among others, D. R. Lambert did not execute it.</p> <p>The defendant gave in evidence two judgments in favour of David R. Lambert, against E, Secor &f Co., in the Supreme Court, and the executions issued thereon. The first was on a promissory note made by E. Secor fy Co., dated 1st of Deckmher, 1818, payable in eight months, for 986 dollars an(j 24 cents, on which judgment was docketed October 22d, 1819. The other was on two notes, of alike date, and on money counts. The judgment was docketed October 18th, 1819, for 3,913 dollars and 27 cents. The balance on both executions, was 4,289 dollars and 69 cents. One execution came to the defendant’s hands on the 18th of October, and the othpr on the 22d of October, 1819, by virtue of which, the carpeting, formerly belonging to E. Secor 8/ Co., was levied on, in the store before occupied by them.</p> <p>The plaintiffs proved that they took possession of the goods immediately after the assignment; and, also, the payment of six notes drawn by E. Secor &f Co., and endorsed by Austin 8f Andrews for the said E. Secor fy Co., and which, after their failure, Austin 8f Andrews had been compelled to take up, amounting to 22,000 dollars, and, also, several checks, leaving a balance due Austin i 8/ Andrews, on the 20th of July, 1819, from E. Secor fy Co., of 33,881 dollars and 6 cents; and it was admitted, that E. Secor 8f Co. owed Heard, (the other plaintiff,) at the time of the execution of the assignment, 8,882 dollars and 42 cents. A verdict was taken for the plaintiffs for 4,289 dollars and 69 cents, subject to the opinion of the Court, on a case, containing the facts above stated.</p>

IN ERROR, on certiorari to the General Sessions of the Peace of the county of Franklin.

From the return to the writ of error, it appeared, that Jacob Barker, the plaintiff in error, in February, 1822, was indicted at the General Sessions, for sending a challenge to David Rogers, to fight a duel.

THIS was an action of covenant on a bond, executed by the defendants, jointly, to the plaintiff, as Sheriff, conditioned for ^ie faithful discharge, by Derby, of the duties of the office of deputy Sheriff and Gaoler, &c. The declaration contained 1 ** ^ specific breaches. The defendants pleaded., 1. JYon est factum. 2. Negativing the breaches assigned. 3. A re-iease and discharge.

<p>THIS was an action of replevin for a horse, cutter, and harness. The defendant pleaded, 1. JYoncepit. 2. Avowry and justification of the taking, by virtue of execution issued on a judgment in a Justice’s Court, in favour of L. F. Steevens against John Clark, the father of the plaintiff; and the defendant being a constable, averred, that he took the horse, &c. out of the possession of John Ciar',, the defendant in the execution ; and that the property and possession of the horse, Sic. were in John Clark at the time of the taking, on the execution; and traversed, that the property or possession was in the plaintiff, Sic.</p> <p>The plaintiff replied to the avowry, that the property and p0ssessj0u 0f the horse, fee. were in the plaintiff, and con-eluded to the country, fee.</p> <p>The cause was tried at the Seneca circuit, in June, 1821, before Mr. Justice Yates. On the trial it was fully proved, that the horse, fee. were the property of the plaintiff; and that John Clark, his father, at his request, went a few miles, to Waterloo, to transact some business for the plaintiff, who furnished him with the horse, fee. for that purpose; that while John C. was at a tavern in W., on the plaintiff’s business, the defendant, as constable, by virtue of,an execution against him, levied on the horse, fee. The defendant moved for a nonsuit, on the ground, that replevin would not lie, as the property was shown to be in the actual possession of John Clark at the time; and, also, because the plaintiff had not proved the fact averred in his replication, on which the issue was joined, that the property and possession were in the plaintiff. The Judge overruled the motion, and charged the jury that the plaintiff was entitled to a verdict; and the jury, accordingly, found a verdict for the plaintiff.</p> <p>A motion was made to set aside the verdict, and for a new trial.</p>

THIS was an action of debt, brought on the fourth section of the statute of frauds, (sess. 10. ch. 44. 1 N. R. L. 75.) to recover 1,283 dollars and 92 cents, being the amount e 70 of the condition of a bond executed on the 10th of JYomember, 1817, by Ebenezer Fitch to Bush Fitch.

WEJYDELL moved for an attachment for the non-payment of costs, against Selden and Post, to whom Norton, the plaintiff, had assigned a demand against Rich, for which a suit 111 , _ . had been brought in the name or J\. against R. and on a report of referees, a judgment was given in favour of R. against N. for 35 dollars.

MOTION, on the part of the defendant, to stay the proceedings in this cause, until the first day of April next, on an affidavit of the absence of a material witness, who had gone out of the state, and was expected to return home by . . 0 that time, eZ-C. jt appeared, that the cause had been regularly referred, by an order of the Court, in August last: and there was a notice of a meeting of the referees, for the 14th of Novem¿er ]ast_ The defendant obtained a Judge’s order to…

DOWER, unde nihil hábe.t, fac. At the last term, the tenant was called, and not appearing, his default was entered, and a writ of grand cape was issued, returnable at this term. A motion was now made to set aside the default, and all subsequent proceedings, and that the tenant have leave to enter his appearance.

THIS was an action of ejectment, brought to recover the possession of one half of lot number ninety, in Cincinnatus„ Hungerford, a soldier, who served in the revolutionary war, was owner of the lot, and died during the war, leaving six children, of whom Levi H. was the eldest, and heir at ^'dW' &was Emitted, that the lessors were children of the soldier, but all younger than Levi H The defendant offefed in evidence a deed from Levi Hungerford, to Daniel' Hungerford, for the…

THIS was an action of ejectment, brought in May, 1819, to recover the possession of a house and lot in the city of JYew-York. The cause was tried before' Mr. Justice Van JYess, at the JYew-York sittings, December 2d, 1820. The declaration contained three demises s from Medcef Eden, from John Wood, junior, assignee of M. Eden, and from M, E. and J. WMs assignee, in all of which the habendum was stated to be from the 6th of May, 1819.

THE clerk being about to administer the oaths to the attorneys and counsellors who had been examined and admitted this term, a question arose, which was submitted to the Court, whether the “ act to suppress duelling,” passed November 5, 1816, (sess. 40. ch. 1.) has been repealed by the sixth article of the new Constitution, so that no other oai}j than the one prescribed by the fourth section of the act concerning counsellors, attorneys, and solicitors, (sess. 36. ch. 4-8. 1…

<p>EJECTMENT for a lot of ground, in Ridge-street, in the city of Mew-Yorh, tried at the JYew-Yorh sittings, before Mr. Justice Wan JYess, in JYovember last. A verdict was taken for the plaintiff, subject to the opinion of the Court on a case. The title to the premises in question was admitted to be hi the lessor of the plaintiff, subject to the operation of the assessment, laid by the corporation of the city of JYew-Yorh, for filling up Stanton-street, and the proceedings under it.</p> <p>It appeared, that E. Rancher, a city surveyor, in 1784, laid out a block of land, being part of Belancey^s farm, and the tier of lots, including the premises in question, fronted on Ridge-street, each lot being 25 feet in front on that street, beginning at the corner of Stanton-street, and each 100 feet deep; and the lots have been so described as fronting on Ridge-street, in all the conveyances since that time, and have been assessed for ordinary taxes, which were paid by those from whom the plaintiff derived his title. The lot in question was conveyed to the lessors of the plaintiff by the trustees of Isaac Moses, as fronting on Ridge-street, being the fourth lot from the corner of Ridge and Stanton-streets.</p> <p>By the ordinances, assessments, and proceedings of the corporation, which were given in evidence, it appeared, that pursuant to the resolutions of the board, an assessment was laid upon lots in Stanton-street, to defray the expense of filling up and repairing that street; and that three lots, beginning at the northeast corner of Stanton and Ridsre-streets, and described as fronting on Stanton-street, each 25 feet wide, and belonging to Benjamin F. Hashins, but without mentioning the depth, were included in the assessment. Haskins became the purchaser at the sale, for the term of 90 years; and the conveyance to him by the corporation, described the lots as lying on the north side of Stanton-street, between Ridge and Pitt-streets, being part of a block distinguished on the Helancey farm, by number 24, lying adjoining to each other, and containing, together, about 75 feet, front and rear, and about 100 feet deep; bounded on the south, in front, by Stanton-street; on the west, by Ridge-Street ; on the north, in the rear, by other part of the said block number 24, &c. (a)</p>

<p>J. TALLMAD GE, Jun., for the appellant, moved, that ... . the remittitur in this cause, in which a decree of reversal was pronounced by this Court, at its last session, (see 19 Johns. Rep. 486.) be amended or modified, so as to give the -1 ' . . 0 appellant costs. He observed, that the remittitur had not yet been sent to the Court of Chancery, and was, therefore, in the power of the Court. He, also, moved, that the appellant be allowed interest on his deposit. He said, that prior to the act of April 12, 1813, (1 N. R. L. 343. sess. 36. ch. 96. s. 13.) no costs were allowed on the reversal of a decree ; and the cases of Le Guen v. Gouverneur, (I Johns.' Cases, 522.) and Farquharson v. Mabee, (3 Johns. Rep, 553.) were decided before that statute was passed. But, in Parkhurst v. Cortlandt, (14 Johns. Rep. 45.) decided since that time, the ri ght of the appellant to costs, on the reversal of a decree, had been established.</p>

321 BUTLER, for the appellant, moved to strike this cause ° the calendar, on the ground, that the appellant not havg filed his petition of appeal, addressed to the Court, it not in a state to be placed on the calendar of causes to be heard. It appeared, that the register of the Court of Chancery had transmitted to this Court the original appeal filed in that Court, addressed to the Chancellor, together with a transcript of the proceedings in the cause m that Court.

THIS cause came before this Court, on an appeal from a decree of the Court of Probates, in the matter of granting, administration on the estate of William, Jones, of the city of JYew-York, deceased.

The plaintiff brought an action of ejectment m the Supreme Court, to re The Chief Justice assigned the reasons for the judgment of the Supreme Court, for which see S'. C. 18 Voh 299—303.

<p>APPEAL from the Court of Chancery. The respon» dents, on the 25th of January, 1820, filed their bill, stating, that John Davis, of the city of JYew-York, merchant, being largely indebted to them, and others, stopped payment on the 26t'h of June, 1819, and refused to pay any of his creditors, ^at ^e'nS possessed, of a large stock in trade, and having debts due to him to a large amount, he, for the purpose of defrauding his creditors, combined with the appellant, Had-to conceal the property, so as to retain it for his own use, and delivered the same to the appellant, who still re» tained the same, or the proceeds thereof, with a view of concealing or disposing thereof, to prevent the same from being levied on by execution on any judgment which might be obtained against John Davis. That the respondents have obtained judgments, and issued writs of fieri facias against Davis, on which the Sheriff had returned nulla lona. The bill prayed a discovery 5 and that the assignment to H., the appellant, might be declared void, and that all the goods and chattels of Davis, in the hands of the appellant, might be submitted to the operation of the executions, for the benefit of the respondents, and for the payment of the demands of such other of the bona fide creditors of Davis as should come in and contribute to the expenses of the suit; and that the appellant, and Davis, might account, &c.s and for general relief, he.</p> <p>The answers of Hadden and Davis, admitted the insolvency of Davis, who stopped payment on the 26th of June, 1819, and was indebted as stated in the bill. They stated, that Davis then owed Hadden a confidential debt of 3,386 dollars and 40 cents, which D. then paid in goods, at cost That, on the same day, D. assigned to the appellant all the residue of his goods, stock in trade, Sec., in trust, &$c., with a proviso, that the assignment should he void, unless all the creditors of B. should sign the same, and release him from all their demands, upon receiving their several proportions under the said assignment, within thirty days from the date. That the creditors refused to release D. within that time, and the assignment became void after the expiration of the thirty days. That in consequence thereof, D., on the 29th of July, 1819, made a second assignment to the appellant, described in a schedule- annexed, in trust for certain creditors named in another schedule annexed to the assignment; that by that assignment the appellant was to convert all the property into cash, and to offer five shillings in the pound to such of the creditors as should release D.; that the appellant, accordingly, on the 18th of August, 1819, sold all the property, at auction, for 1,486 dollars and 11 cents; and that the said creditors refused to accede to the terms oflered ; and the appellant held the proceeds of the sales made under the assignment, in trust for D.; and that when the second assignment became void, the appellant had in his" hands 2,207 dollars and 17 cents, belonging to Davis, including the proceeds of the sale of the goods, and 721 dollars and 10 cent^ assigned to him, in like manner. That the appellant had paid $0 D. various sums from that fund, and had a balance remaining in his hands, at the time of filing this answer, of 799 dollars and 33 cents, belonging to Davis. They denied that there was any collusion or fraudulent combination between them, to delay or defraud the creditors ^ or tQ j1jllcjer tjje g00cls from being levied upon by execution. There was a general replication to the answers. The cause was heard and. decided in the Court of Chancery upon the bill and answers, without taking any proof in the cause. The Chancellor declared, that the plaintiffs, at the time of filing their bill, had acquired, as execution creditors at law, a priority of right, valid in equity, to the trust moneys belonging to D., in the hands of the appellant H. ,* and that all payments of the same by H. to D., subsequent to the filing of the bill, containing notice of that right, and of their claim in pursuance of it, were made in his own wrong ; and he considered the doctrine in the cases of Rrindcerhoff v. Brown, and M’Dermutt v. Strong, (4 Johns. Ch. Rep. 671. 687.) as applying and governing the ease. He, accordingly, decreed, that “ the defendants, or one of them, within thirty days, pay to the solicitor of the plaintiffs the 974 dollars and 72 cents, with interest from the 29th of January, 1820, and the costs of the suit, or that execution issue, &dc., and that the same, when received, be paid to the plaintiffs, rateably in proportion to the amount of their judgment.” F- om this decree the defendants below appealed to this Court.</p> <p>: The Chancellor assigned the reasons for his decree, as above stated$ and see S. C. 5 Johns. Ch, Rep. 280.</p>

The bill in the v Court below was filed June 23,1821. The Columbian Insurance Company insured 10,000 dollars, on sugars, on hoard the ship Egeria, from New-York to St. Petershurgh or Archangel. The voyage having been broken up at Copenhagen, the cargo was abandoned to the insurers, who Pa*d the loss, and the property was assigned to them, by the insured, on the 3d May, 1811.

The respondents, on the 4th of August, 1817,° filed their bill against the appellant. The bill stated, among other things, that in December, 1815, and before, the appellant and Samuel Stilwell were joint owners of the brig Phoenix, and her cargo, which was shipped in their joint names, and the vessel, with the cargo, was sent on a trading voyage, from JYew-Yorh to the Mediterranean.

The bill, filed June 15, 1819, by the respondent against the appellants, stated, that in April, 1819, being the owner of a vessel ed the Express, he employed R. 8/ S., who were merchants and copartners in trade, in New- York, to sell her, on a eredit, and instructed them to take good approved notes in payment, and to transmit them forthwith to him, with an - u ’no account of their charges, which should be immediately paid, with which instructions R. 8f S, engaged to comply.

<p>APPEAL from the Court of Chancery. The respondent filed his bill, May 29, 1817, against the appellants, stating, among other things, that John Thomas was a soldier in the second JYew-York regiment of artillery, during the revolutionary war, and became entitled to a grant from the State of 600 acres of land, for his military services. That on the 9th of July, 1790, letters patent were, accordIngly, issued to him, for lot No, 11, in the township of Solon. That on the 5th of September, 1789, the said J. T., being so entitled to military bounty land, for a valuable ?, consideration, sold, quit claimed, and confirmed to the respondent, Ms heirs and assigns, for ever, all the right, title, and demand of him, the said J. T., to military bounty lands, Ste., with a covenant for further assurance, and a power of attorney to obtain letters patent for the land. This instrument of transfer concluded in these words: “ In witness whereof, I have hereunto set tóy hand and seal, this _ _ 5th day of September, A. D. 1789and was signed by J. T. with his mark; but no seal was affixed to it, though it was witnessed by two witnesses, as " signed, sealed, and delivered,” in their presence. The instrument ivas deposited and filed in the office of the clerk of the county" of Onondaga, according to the directions of the statute, on the 29th of April, 1795; and the execution of it was proved, in due form, before a master in chancery, on the 28th of March, 1799, J. T., the soldier, died intestate. The appellants, who are in possession of the lot, claimed title to it, under a conveyance, as they alleged, from the soldier, which conveyance, if any, the respondent alleged, ivas obtained subsequent to the execution and deposit of the instrument to him, as aforesaid, and with legal" notice thereof. About five years since, the plaintiff hrdughi a,n action oí' ejectment in the Supreme Court, against the appellants, which was tried in 1814, and a verdict found for the plaintiff, suject t0 the opinion of the Court, who decided, in October, 1815, that the instrument so deposited and filed by ^g p]ajntifF; not being under seal, was insufficient to convey the legal estate; and, on that ground, set aside the verdict, and gave judgment against the respondent. The bill prayed a discovery, and for relief generally.</p> <p>The answer admitted, that J. Matthews, the appellants was in possession of the lot, by permission of W. and M., the other appellants, to whom and J. M. the lot, with other lands in Solon, were devised by David Matthews, of Vermont, in trust, for the children of the testator, named in the will, which was dated August 29, 1810. That D. M., the testator, derived his title, as follows : John Thomas, to whom letters patent for the lot was granted, bearing date January 9, 1790, by his deed, dated October 25, 1796, conveyed the lot in question to William Preston, in fee, for the consideration of 160 pounds, with covenants of seisin, &c. and warranty, which deed was acknowledged the same day before a master in chancery, and, on the 15th of February, 1797, recorded in the office of the clerk of Onondaga. Preston, by a deed, bearing date August 29, 1797, conveyed the' same lot to David Matthews, the testator, for the consideration of 400 pounds, excepting 50 acres, in the south east corner; which deed contained full covenants, and a warranty, and was duly acknowledged August 30, 1797, and, on the same day, recorded in the office of the clerk of Onondaga. D. M., the testator, died March 29, 1811, and the appellant, J. M. is his son. That D. M. paid Preston for the lot 750 dollars, and delivered him a mare, of the value of 250 dollars. That in 1798, or 1799, one Levi White took possession of the lot under D. M-, and possession has ever since been held under the title of D. M. That improvements have been made on the lot to the value of 3,000 dollars. That D. M., when he purchased, had not, as the appellant, J. M., verily believed, any knowledge of the instrument held by the respondent, or of his claim to the lot | nor did he know of it, for many years afterwards, though he heard of the respondent’s claim before his death. That, in 1799, the appellant, R. 31., the son-in-law of D. 31., went into possession of part of the lot, and remained in possession until 1803, and never heard of the respondent’s claim until 1800. The appellants admitted, that the respondent had brought an ejectment, and the proceedings and judgment, as stated in the bill.</p> <p>There was a general replication, and the cause was brought to a hearing on the pleadings and proofs. The Chancellor, on the 3d of May, 1821, decreed, that the appellants, within forty days, release and convey to the respondent, in fee, all the right, title, and interest, derived to them, as trustees, by and under the will of David Matthews, of, in, and to, the lot in question. From this decree, an appeal was entered to this Court.</p> <p>The Chancellor assigned the reasons for his decree £ for which, see S, C. 5 Johns. Ch. Rep. 224. 227, 231.</p>

Ch. Rep. 555. 569. S. C.) and a - deCree of the 8th of August, 1822, on the report of the mas-' ter, as to the exceptions taken to the answer accompanying the plea, and to the further answer to the amended bill. (6 Johns. Ch. Rep. .)

<p>APPEAL from the Court of Chancery, This caase came before this Court, at its last session, by an appeal from a former decree of the Court of Chancery, and. after hearJ7 hag counsel on that appeal, the decree was reversed, and the record remitted to the Court of Chancery. The original case in Chancery will be found reported in 5 Johns. Ck. Rep. pp. 366-388., and the proceedings on the appeal in this Court, in 19 Johns. Sep. pp. 456—-486, The remittitur, having been filed in the Court of Chancery, the following decree was entered in that Court, on the 27th of May, 1822: 56 On reading and filing the remittitur, in this cause, from the Court for the Trial of Impeachments and the Cor-section of Errors, and the counsel for the parties having been heard thereon, it is ordered, adjudged, and decreed, that the order, judgment, and decree, of the said Court, be carried into full effect: It is, therefore, ordered, adjudged, and decreed, that it be referred to one of the masters of this Court, to ascertain and report the amount of debt due, with interest, to the complainant, from the Dutchess Cotton Manufactory : and that, in order to ascertain such amount, the pleadings and proofs, in this cause, be given in evidence, wad such further competent proof as either party may think mover to furnish; and that, on such reference, all payments made by the defendants, respectively, on their shares, be duly credited: And further, that the defendants, Cyrenus Crosby, Albert Cox, and George Bloom, be allowed, by way of• set-off, any demand which they, or either of them, have, and which ought in justice to be allowed; and that the master report with all convenient speed; and all further questions are reserved : And it is further ordered, that if any questions arise before the master, touching the admissibility of the proof, in relation thereto, the master be at liberty to apply for further directions, and to state, at the same time, the nature of the questions and of, the proof.” t</p> <p>A reference was accordingly had before one of the masters of the Court of Chancery, who, on the 14th of June, 1822, made his report, as follows :</p> <p>“ That having been attended by counsel on behalf of the complainant and defendants in the above cause, and having proceeded upon the matters referred by such decretal order, certain questions of an equitable nature have arisen, which it would be for the advantage of all parties, should be brought before the Court for decision, before a further in» vestigation of the accounts is made ; and under the authority to that effect, contained in such decretal order, I thereupon make this my separate report.</p> <p>“ In order to establish the amount of the debt due to the above complainant by the Dutchess Cotton Manufactory, an exemplification of the record of a judgment in the Supreme Court of the state of New-Yorlk, in favour of the complainant, against the said manufactory, has been produced before me; which judgment was docketed the 19th of May. 1822, and given for the sum of 46,986 dollars debt, and 30 dollars and 29 cents costs, such debt being the penalty of a bond to that amount, upon which such judgment was had.</p> <p>“ From the proved, and admitted facts in this cause, it appears, that such bond was executed by the president, directors, and company of the said manufactory, on the 22d of November, 1816, and was conditioned for the payment of 23,493 dollars and 35 cents, with interest from the 5th of November, 1816; that such condition was the balance of the account of the complainant with the manufactory, as finally adjusted by the trastees 5 that with a view to such adjustment, the said trustees had appointed a committee of three of the-members of their board, the president and two others1 the two last of whom reported their examination of such accounts, and a balance of 34,443 dollars and 35 and a half cents due to the complainant, from which amount 950 dollars was deducted by resolution of such trustees, and the bond was executed as aforesaid, for the balance, viz. the sum of 33,493 dollars and 35 cents.</p> <p>" The counsel of the complainant exhibited a statement of Ms claim, charging the company with the condition of the said bond, and interest, and giving credit thereupon for such sums of money as he alleged were properly to be allowed $ and contended, that the balance so found was the true balance due from the said company to the complainant, and to be reported as such, unless further proper credits upon the amount of such condition could be proved by the defendants. On the part of the defendants it was then claimed and insisted, that the aforesaid liquidation of the accounts of the complainant, and the bond and judgment consequent thereupon, were not conclusive upon them as to the true amount of debt due to the complainant, but that they were at liberty 60 contest and falsify the same under the decree of reference, and the remittitur of the honourable the Court of Errors in this cause j and required that I should hear their allegations and proofs in relation thereto.</p> <p>" And having considered such decree and remittitur, I am of opinion, that they neither expressly direct that the aforesaid judgment and liquidation should be received as conclusive, nor that the consideration or particulars of the same should be opened and gone into ; but have left the same to Toe determined to be conclusive or prima facie evidence of the debt to be ascertained, according to the principles of equity applicable to the facts which should appear respecting them. Id order to procure the said account to be opened, and certain items thereof investigated, the defendants have alleged, that there was fraud or error iti such accounts in the follow-lag particulars:</p> <p>" They alleged, mi offered to prove, by the testimony in the eause, and further competent proof, that the land, site. water privileges, dam, raceway, and the buildings, part of the property sold by the complainant, were not, at the date 0f suc{j purchase, of one half the value at which they were charged by the complainant, and estimated by the commit-' tee of the trustees3 that a portion of such land then pretended to be sold, and actually included within the boundaries in the deed to the company, had been previously sold and conveyed by the complainant, to one George Reid; that after such latter conveyance, the complainant had built the factory in part upon the land so conveyed to Reid ; and that such facts had come to the knowledge of the' defendants within a short time previous hereto. That the complainant had, also, previous to such sale to the said company, sold or conveyed to said Reid, a water privilege for the use of his paper-mill, to such extent as such paper-mill should require, and that the privilege actually vested in such company, by his deed to them, was only the right to the surplus water not required by said Reid for such purpose 3 that of all these facts, the trustees, (other than the committee,) as well as the stockholders generally, were wholly ignorant, and that such committee were either not informed thereof, or, if informed, unwarrantably concealed them3 and that the facts above mentioned, materially diminished the value of the said premises below the amount of the charge and estimate. ,</p> <p>“ As to the above allegation and offer, I report, that I have-concluded not to admit any proof as to any portion of such property being overvalued, if the excess of valuation appears to be error of judgment merely upon a full knowledge of facts 3 but to require the defendants to show unwarranted and deceptive representations, or concealment of material fads on the part of thé complainant, or connivance of such committee with ' respect to the same. It has been further alleged by the defendants, that they had proved, by the testimony in this case, that the complainant had contracted to Sell such'factory and machinery at the prices they originally cost him ; that the spindles, part of such machinery, had originally cost the sum qf 12 dollars, and had been charged and allowed for at the sum of 16 dollars,</p> <p>“ That it has been objected on the part of the complainant# that the evidence in relation to such matter was clearly inadmissible, being statements made by the defendants in this case, who were examined under an order of this Court, on the application of other defendants, and that, in my opinion, even if such evidence could be received, it does not establish the fact that such contract was made as a condition of the sale, and I find sufficient testimony to conclude, that the said sum of 16 dollars was not an unfair price ; and that, in my opinion, no further evidence ought to be received in relation to the alleged contract, or to the value of such spindles. The defendants also alleged, that it is proved by the testimony in that cause, that a picker, part of such machinery, was charged 50 dollars higher than it had cost the said complainant, which was in violation of his alleged contract to sell to the company at cost, as well as an unjust overvaluation of the said article.</p> <p>" The defendants further alleged, that manifest error appeared in the item of such account, allowing the sum of 1,416 dollars for the services of the complainant, from January, 1814, at the rate of 500 dollars a year, and a like allowance to Nathan Moulihrop for the same period; that such allowance commenced about one year and three months prior to the actual purchase of the premises by the company, and was illegally and unjustly allowed; and, further, that it appeared by the testimony, that such services were greatly overvalued. That there was, also, manifest error in such account in charging interest on the sum of 30,000 dollars, for two years and ten months, making such interest to be allowed for the period of more than one year prior to the purchase of such premises by the company.</p> <p>“ And that there was manifest error in a deduction of fifteen per cent, upon the proceeds of certain cloth and yarn sold at the factory by the complainant, as agent, which sum, it has been contended, is apparently a deduction by way of commission, for the use of the complainant.</p> <p>“ In these particulars, the defendants have alleged, that there were gross errors in such account, as well as in other items not particularized, and required that the same should be investigated. And having considered the matters above stated, and heard the arguments of counsel thereupon, I arai of opinion, and so report, that the defendants are entitled^ on the reference now before me, to falsify and surcharge the said account at large ; specifying, and going into proof of any error of such a nature and description as, upon a bill filed to open the account, if properly charged, and duly proved, would be declared a sufficient error by this Court, to be amended by its direction.”</p> <p>The appellant excepted to the report, and filed his exceptions, as follows :</p> <p>“ 1st Exception. For that it appears by said report, that said master considered and adjudged, that the decretal order, referring said cause to him, and the remittitur mentioned in said report, neither expressly direct that the judgment and liquidation mentioned therein should be received as conclusive, nor that the consideration of particulars of the same, should be opened or gone into, but left the same to be determined to be conclusive or prima facie evidence of the debt, to be ascertained according to the principles of equity, applicable to facts which should appear respecting them ; whereas the complainant contends, that the clear and legal import of the express direction given in said decretal order and remittitur, is to admit competent proof of payments made towards said judgment, but not to give any evidence to lessen, impeach, or destroy the consideration on which said judgment was founded.</p> <p>“ 2d Exception. That although the master has determined not to admit any proof that the land, factory site, water privilege, raceway, . and buildings, áre overvalued, if the excess of valuation appears to be an error of judgment merely upon a full knowledge of the facts; still he has adjudged it proper to permit the defendants to show what he denominates unwarranted and deceptive representations or concealment of material facts on the part of the complainant, or connivance of such committee with respect to the same; whereas the complainant contends, that no such testimony can be given, under the pleadings in this cause, according to the rules of evidence, for that the defendants have not, in any part of said pleadings, alleged any such unwarranted and deceptive representations or concealment of material facts, nor have they in their answer, or otherwise, §ver set forth or suggested, that any such incumbrance existed on said factory premises, or in relation to said water privileges, by means of any previous conveyance by the complainant to George Reid, or any other person, or that any part of said factory was built on said Reid's land 5 and that it appears, according to the facts admitted and proved in the ease, that the defendants have never sustained, and never can sustain any injury, by any such incumbrance, if the same existed.</p> <p>" 3d Exception. For that it appears, from said report, that the said master, in considering the proofs in the cause, considered the depositions of the defendants themselves as legal evidence in ascertaining the amount due to the complainant | whereas, the complainant contends, that the depositions of the defendants, or any evidence given, or to be given by them, or any of them, relative to the subject of reference, is altogether illegal and inadmissible.</p> <p>" 4th Exception, For that the said master has adjudged and reported, that the defendants are entitled, on the reference, to falsify and surcharge the account at large, and the several items thereof, specifying and going into proof of any error of such nature and description as upon a bill filed to open the account, if properly charged, and duly proved, would be declared a sufficient error by this Court, and be amended by its direction. Bui the complainant contends, that any such evidence would be illegal and inadmissible under the pleadings in this cause, for that the defendants have not in their answers, or any of them, alleged or averred any mistake or error in any item or items of said account, and that any testimony tending to show any such mistake or error in any of the items of said account, would be a surprise upon the complainant, and what he could not come prepared to meet.</p> <p>" Addition to the 4th Exception. And that the defendants ought not to be permitted to surcharge or falsify as to any article contained in the first purchase made by the Dutchess Cotton Manufactory of the complainant, amounting to 30,9 IS dollars $ for that it appears, by the pleadings and proofs in the case, that the price of all the articles was fixed settled by the parties, by express contract, at the time-said purchase was made, and that the defendants cannot now be permitted to give any evidence to vary said price, or the terms of said contract.</p> <p>“ 5th Exception. For that said report goes to open an account for examination, which has been settled by the defendants themselves, or some of them acting as trustees for themselves, and the other of said defendants, and after making large deductions from the amount of the complainant’s original demand, by way of adjustment, and the correction of all errors, and executing a bond for the balance, and suffering a- judgment to be obtained on said bond in a suit at law; and that without any allegation or suggestion in the pleadings, in this cause, of fraud or deception, on the part of the complainant in obtaining said bond or judgment; whereas, the complainant contends, that the defendants are precluded by said settlement, bond and judgment, from opening said account, and from any examination into the items composing the same, or any part thereof, and that said judgment ought to be received and considered by said master as conclusive evidence of the complainant’s demand.”</p> <p>The respondents, also, excepted to the report, and filed their exceptions, as follows :</p> <p>“ 1st Exception. For that the said master has stated, in his report, that he had concluded, if the accounts between the said parties should be directed to be opened and gone into, ‘ not to admit any proof as to any portion of such property’ (meaning the property sold and.conveyed by the complainant to the Dutchess Cotton Manufactory) ‘ being overvalued, if the excess of valuation appears to be error of judgment merely, upon a full knowledge of facts, but to require the defendants to show unwarranted and deceptious representations or concealment of material facts on the part of the complainant, or connivance of such committee with respect to the samewhereas the defendants contend, that the said master ought to have determined and concluded, that any overvaluation of any part of the said property, might be shown by the defendants without restriction, and that the said defendants might-be permitted to show, on the accounting before the master, what was the actual and fair value and worth of such property at the time of the sale.</p> <p>" 2d Exception. For that the said master. In the said report, has stated, that the defendants had alleged that it was proved by the testimony in the case that the complainant i. had contracted to sell the factory and machinery at the prices they originally cost him, and that the same had been in fact charged at a higher price, and that, ' in his opinion, the evidence does not establish that such contract was made as a condition of the sale / and that he finds c sufficient testimony to conclude that the sum of sixteen dollars was not an unfair price, and that no further evidence ought to be received in relation to the said alleged contract, or to the value of such spindles / whereas, the defendants contend, that the master ought to have decided, that the evidence does establish that such contract was made, as a part of the contract of sale j and that the defendants should be permitted to prove such contract by further and other evidence 5 and to show, by further evidence, what was the real cost of the said factory and machinery to the complainant j and to also show, by further evidence, what was the real and fair value of such spindles at the time of the sale.</p> <p>" 3d Exception„ For that the master has reported, c that the defendants are entitled, on the reference now be? fore Mm, to falsify and surcharge the said account at large/ whereas, the defendants contend, that the said account ought to be opened generally, and the complainant be called upon to substantiate all the items of the same.35</p> <p>The cause was brought to a hearing in the Court of Chancery, on the exceptions taken by the parties to the master’s report; and the Chancellor, on the 17th of Septem-= her, 1822, made the following order and decree »</p> <p>" This cause having been brought to a hearing at the last term, upon exceptions, taken on the part of the complainant, to the report of Murray Hoffman, esquire, one of the masters of this Court, and the same being argued by Mr. Philo Haggles, of counsel for the complainant, in support of the said exceptions, and by Mr. Stockholm, and Mr. Thomas J. Oakley, of counsel for the defendants, in opposition to the said exceptions, and the pleadings and proofs and documents In the cause, in the reference to the said exceptions, and the master’s report and the said exceptions, being duly considered : it is ordered, adjudged, and decreed, that all and singular the said exceptions be, and the same are hereby overruled. And inasmuch as the decisions of the master, on the points excepted to in the first, second, fourth, and fifth exceptions, and with the addition to the fourth exception, are correct, and the judgment against the company, in its corporate character, is not binding and conclusive upon the defendants, 'when charged in their private and individual character ; and inasmuch as a sufficient foundation has been laid by the pleadings for opening the accounts; and inasmuch as the third exception does not appear to be founded on fact, as no such decision of the master, as is therein excepted to, appears in the report; and this cause having, at the same time, been brought to a hearing, upon exceptions taken on the part of the defendants to the said report, and the said exceptions argued by the same counsel, on behalf of the respective parties, as aforesaid, and duly considered: it is further ordered, adjudged, and decreed, that the first exception, taken on the part of the defendants, be allowed, and that the defendants ought to be permitted to show before the master, if they are able, by competent and satisfactory testimony, a material overvaluation of the property referred to, in and by the said exceptions, at the date of the purchase thereof, from whatever cause such excess of valuation was produced. The great and leading principle applicable to most of the exceptions to the report being, that the acts of the trustees or agents of the company, while it subsisted as a corporation, however binding and conclusive upon the company in its corporate capacity, and over the corporate property, are not binding and conclusive upon the individual stockholders of the company, when charged in their persons and property in their individual character; inasmuch as, in that character, they never were represented by such agents or trustees. And it is further ordered, adjudged, and decreed, that the second exception, taken on the part of the defendants, also be allowed; inasmuch as the defendants ought to be permitted to prove, if they are able, by competent and satisfactory proof, the contract therein referred to, and what . was the real cost of the said factory and the machinery, to the jü'mplainant, and what was the real and fair value of the spindles therein referred to, at the time of the sale. And it is further ordered, adjudged, and decreed, that the third exception, on the part of the defendants, be overruled; and the question of costs, arising on the exceptions, taken on each side, as aforesaid, to the said report, is hereby reserved.”</p> <p>From this decree an appeal was entered to this Court.</p>

<p>A patent for land to S,, an Oneida Indian, and his heirs and assigns, for andli'slndian heirs> whatevcondition and be^whetiiér a- or Clt1' Such a pa-taken as issued by due authority, and as equivalent to a legislative grant to S., and his Indian heirs»</p> <p>The Indians within this state, are not citizens; but are distinct tribes or nations, living under the protection of the government.</p> <p>No white person can lawfully purchase any right or title to land from any Indian or In° dians, without the authority and consent of the legislature.</p> <p>A deed, therefore, executed in 1797, by the son and heir of J, 5., an Indian patentee of land, to a citizen, in the usual form, without any such consent, is illegal and void»</p>

situate and standing on the ' ° 5 w mao IN ERROR to the Supreme Court. {Vide, S. C. ante, p. 103. 106.) Bradshaw, who was plaintiff in the Justice’s Court, declared, for a trespass committed by Rogers and Magee, on his land, by entering thereon, and cutting and despoiling timber, growing and standing on the land, from the north part of the land southward to a certain distinguished white pine tree. side of the Waterford and Whitehall turnpike road, to damage fifty dollars.

<p>IN ERROR to the Supreme Court. (Vide S. C. ante, p* 144.)</p>