Volume 20 — Wendell's New York Reports

Error from the superior court of the city of New-York. This was an action of trespass, for taking and carrying away a quantity of merchandize, sent by the plaintiff, residing in Philadelphia, to a mercantile firm in New-York, transacting business under the name of Butler & Co. to be sold on commission.

<p>On an information in the nature of a quo warranto, where the relator and the defendant were opposing candidates for the office of county clerk, the defendant being in under a former election, and having received a certificate of re-election from the county canvassers: It was held, that on the trial of the issue joined between the parties, it was competent to the relator to prove that in the return of the canvassers of one of the towns of the county, a mistake had occurred in omitting to state the number of votes given for each candidate; and such proof having been given, whereby it appeared that the relator and not the defendant was elected by the greatest numb er of votes, it was adjudged by this court, notwithstanding the certificate of the county canvassers, that the relator was duly elected.</p> <p>It was further held, that the information was regularly filed on the sixth day of January, notwithstanding that the defendant was lamfulty holding over in consequence of the relator not having received a certificate of election.</p>

Error from the Albany mayor’s court. This was an action of trover brought by Thomas against Gregory, for a coach and harness taken possession of by the defendant in September, 1835. The plaintiff claimed the property under a mortgage executed to him by John Wyman, bearing date and filed in the register’s office of the city of Hew-York, on the 12th September, 1834.

Error from the superior court of the city of Hew-Yorb. Carow brought an action of trover against Hoffman & Co. auctioneers in the city of Baltimore, for a quantity of merchandize, stolen from him in the city of Hew-York, and forwarded by the thief to the defendants in Baltimore, to be sold at auction.

S. 512, § 28, sub. 4. Garner, on the 2d March, 1836, made affidavit before the recorder that a farm of 53 acres in Hillsdale, Columbia county, was on the 15th May, 1834, sold by the sheriff of that county on several executions against George Mooney, and purchased by John Mooney ; that John assigned his interest under the sale and certificate to Garner, and the sheriff, on the 17th August, 1835, conveyed the property to Garner.

This was an action of assumpsit, tried at the Oneida circuit in April, 1846, before the Hon. Hiram Denio, then one of the circuit judges. The plaintiff claimed to recover the amount of a promissory note for $300, made by the defendant, bearing date 13th October, 1828, payable to William T. Curtiss or bearer, four years after date.

This was an action of trover, tried at the Ulster circuit in October, 1835, before the Hon. Addison Gardiner,, then one of the circuit judges. The plaintiff claimed to recover |110.26, the amount of an attachment held by him as a constable against the property of one Clow, he having by virtue of such attachment made a levy upon a quantity of firewood belonging to Clow, which was subsequently sold by the defendant.

<p>This was an action of ejectment, tried at the circuit in the county of Kings in December, 3836, before the Hon. Ogden Edwards, one of the circuit judges.</p> <p>The plaintiffs claimed to recover the premises in question by virtue of a deed executed by Samuel Hubbard, senior, to his daughter Áltie, one of the plaintiffs. The defendant, who is the grandson of Samuel Hubbard, junior, claimed the premises under a devise to him contained in the will of his grandfather. Several years after the making of the will, and two years previous to his death, Samuel Hubbard, senior, went alone to the house of a witness for .the plaintiffs, and told him that his daughter Altie was dissatisfied as to the disposition he had made of his property by his will, and that he had come to him for the purpose of making an alteration in the will, or of having a new one drawn, or having something done to pacify his daughter. The witness stated that after some conversation as to the competency of the testator to alter his will, he being very aged, it was concluded between them that a deed should be drawn, conveying to Altie , twelve acres of land which had been devised to the defendant. The witness accordingly drew a deed conveying that parcel to Altie, which deed was executed by Samuel Hubbard, senior, in his presence, and being a judge of the county of Kings, he endorsed a certificate of acknowledgment upon it and delivered it to the grantor. The grantor asked the witness whether the deed would give his daughter the piece of land after his death, who answered that he thought it would. The witness testified that » the impressions received by him were that the deed was not to go into effect until the death of the grantor, who was to keep the same until that event should happen. A son of the plaintiffs testified that upon a certain occasion, Samuel Hubbard, senior, ■said that if he (the witness) would give up a note which he held against him for $102, he would give a deed of the premises in question to the mother of witness. Two or three weeks thereafter the grandfather came to the house of the plaintiffs and told his mother that he had procured a deed to be drawn to her, and that she could have it at any time that she wanted it. He at this time did not ask for the note, and the witness still retained it. On the other hand, it was proved that on the day that the will of Samuel Hubbard, senior, was opened and read, Altie, one of the plaintiffs, said that she knew nothing about the deed. After the death of Samuel Hubbard, junior, the deed and will were found in a trunk in which he kept his papers, and it was conceded by the plaintiffs’ counsel that the deed had never been out of the possession of the grantor. The judge charged the jury that the deed was inoperative for the want of delivery, and that the plaintiffs could not claim title under it. The jury, notwithstanding, found a verdict for the plaintiffs. A motion was made to set aside the verdict.</p>

This was an application to the court to set aside a report of referees. The action was assumpsit, and the declaration contained counts for goods sold, work done, materials found, and in the common money counts. The defendant pleaded non-assumpsit as to the promises, &c. except as to the sum of $>85, and as to that sum a tender ; there was also a plea of set-off.

Demurrer to plea. The plaintiffs declared in debt on a judgment obtained by the intestate against the defendant for $20,000 debt, and$36.17 damages, rendered in the term of February, 1824.

This was an application to set aside ^.report of ref erees. The action was assumpsit. The plaintiff claimed to recover a balance of §99.62, as due to him for his services as master of a sloop belonging to the defendant, which he had navigated on the Hudson river. His compensation was agreed upon at the rate of $35 per month. No time of payment was specified. He had charge of the sloop from the spring until the navigation closed in the fall of 1835.

This was an action of ejectment for dower, tried at the Rensselaer circuit in September, 1836, before the Hon. James Vanderpoel, then one of the circuit judges.

Error from the Greene common pleas. Berry sued Braden a keeper of a gate on a turnpike road in the county of Greene, to recover a penalty of ten dollars for demanding toll from him in passing the gate kept by the defendant, when the same was ordered by an inspector of the road to be thrown open, on the ground of the road being out of repair. See provisions of the statute on the subject, 1 R. S. 588,2d ed. § 39, &c. The suit was brought before a justice of the peace.

Demurrer to plea. This is an action for a libel. The publication alleged to be libellous is the same upon which the suit of White v. Delavan was brought, reported in 17 Wendell, 49, et sequitur, where will be seen the publication.

Error from the Yates common pleas. Blake sued Sprague in a justice’s court, and declared in assumpsit for wheat sold and delivered. The defendant pleaded the general issue and gave notice of set-off, and claimed damages for non-performance of the contract by the plaintiff. The plaintiff obtained a verdict in the justice’s court, and the defendant appealed to the Yates common pleas. On the trial in that court, the following facts appeared.

Demurrer to plea. The plaintiff declared in trespass for the taking of a gig. The declaration contains two counts, in each of which the taking of a gig is charged.

Error from the superior court of the city of-New-York. This was an action of assumpsit, brought by Hull & Bowne against Vanderburgh, for iron castings.

Error from the New-York common pleas. Mather sued Sickles in assumpsit for goods sold and delivered. The defendant pleaded the general issue and the statute of limitations. The cause was heard by referees.

Error from the Montgomery common pleas. Lasscells sued out an attachment against Connell from a justice’s court, on an affidavit made by him that Connell was indebted to him in the sum of $45.46 on contract; that he had demanded payment, ■which had been refused, and that Connell also had refused to .give a judgment for the amount, saying, that his property, except some hay, was under mortgage, and that he wanted to have the management of his property himself.

Error from the superior court of the city of New-Yorlc. Halliday brought an action of assumpsit against J. D. Ansley, J. McDougall and W. J. Wightman as copartners, transacting business under the name of Ansley, McDougall §• Co. The declaration contained a count on a bill of exchange bearing date 26th November, 1825, drawn at Mew- York by the defendants on a firm transacting business at Charleston, S. C. under the name of J. D. Ansley 8f Co. for the sum of $750, payable to…

<p>An action of assumpsit lies against a moneyed corporation, for refusing to permit a transfer of its stock upon the books of the corporation, when by the act of incorporation such transferís necessary to give validity to the transaction ; case would lie, but assumpsit may be maintained.</p> <p>A certificate of stock is transferable by a blank endorsement, which may be filled up by the holder by writing an assignment and a power of attorney over the signature endorsed.</p> <p>Proof of usage as to this mode of transferring stocks is admissible; but independen® of such evidence, authority to fill up the blank endorsement will be inferred.</p> <p>A plaintiff in such case, is not limited to a recovery of the mere excess in the value of the stock above par, but is entitled to recover the full value of the stock at its highest price, between the time of the refusal to permit a transfer, and the time of the commencement of the suit.</p>

Error from the Kings common pleas. Jenks sued Willoughby in the municipal court of the city of Brooklyn, and declared against him in trespass, for digging up the soil and destroying the grass and herbage of the plaintiff.

This was an action of ejectment tried at the Montgomery circuit, in May, 1836, before the Hon. Esek Co wen, then one of the circuit judges. The plaintiff, Magdalena Zimmermann, claimed to recover one fifth of the premises in question, as one of the children and heirs at law of Nicholas Failing, who died intestate the owner of the same, as long since as 1789, leaving five children his heirs at law.

<p>Landlord and tenant. Proceedings were instituted by the Messrs. Rhinelanders against Simpson, under the act authorizing summary proceedings to recover the possession of land in certain cases, 2 R. S. 512, et seq. before an assistant justice of the city of Hew-York, the complainants alleging that Simpson was their tenant of certain premises, and that he held over without their permission, after having made default in the payment of rent. The affidavit upon which the proceedings were instituted, was made by one E. GL Smith, who stated himself to be the agent of the landlords, and that Simpson was justly indebted to them in the sum of $>1,653,60, due the first day of February, 1832, for rent of all that certain lot, &c., (describing the premises) as formerly possessed, &c., and as subsequently leased by the landlords to Simpson. He further stated that Simpson held over and continued in possession of the premises without permission of the landlords, after a default in the payment of the rent pursuant to the agreement under which the premises were let j that satisfication of the rent could not be obtained by distress of any goods, and that he had made demand of the rent from Simpson personally. Upon receiving this affidavit the justice issued a summons to show cause, &c., upon which the tenant appeared and joined issue. The cause was tried by a jury, who found a verdict in favor of the landlords, and the justice issued a warrant to put the landlords into possession. The tenant sued out a certiorari, and upon the coming in of the return, the cause was submitted on written arguments by :</p>

<p>After a conviction, an indictment will not be quashed on the ground that during the pendency of the trial, a second indictment for the same offence was found by the grand jury.</p> <p>The mere finding of a second indictment is not per se a supersedeas to the first indictment ; a motion to quash must be made, and made too before the trial on the first indictment has commenced; at all events, before the cause is submitted to the jury. Ordinarily a motion to quash must be made previous to plea pleaded, or any evidence given in the case.</p> <p>A mandamus will not be granted to a court acting under a special commission which has expired by its own limitation previous to the motion for the suit.</p>

<p>The first of these cases was an action of trespass quare clausum fregit, for entering upon the land of the plaintiff, tearing down fences and depositing upon his land a quantity of manure» The second was an action of assault and battery, attempted to be justified upon the same grounds that the entry upon the lands were sought to be justified. Both causes were tried before the Hon. Charles H. Ruggles, one of the circuit judges.</p> <p>The plaintiff is the owner of a farm in the town of North Hempstead, in the county of Queens, on Long Island, adjoining Hempstead harbor, which has belonged to his ancestors for upwards of a century. On this farm there is a landing called Pearsall’s landing, which, on the trial of the first above cause, it was proved had been used by the public ever since 1764, for the purpose of loading and unloading vessels, and for the deposit of wood and other property carried to and from the landing. About the year 1800, the farmers in the vicinity of the landing began the practice, which has continued ever since, of bringing manure from the city of New-York and depositing it upon the landing, so that not unfrequently an area of one and a half acres would be covered. Shortly previous to February, 1835, the plaintiff enclosed with a fence that portion of his farm called the landing, it never before having been enclosed, and on the arrival of the first vessel in that year with manure, the acts took place for which the first above suit was brought. The suit against Hewlett was brought under the following circumstances : On the 17th March, 1835, Hewlett, being a commissioner of highways, went on the locus in quo with a number of men, cattle and implements, and commenced ploughing and scraping down a knoll. The plaintiff forbade him, and ordered him to depart, and on his refusing to do so, took hold of him for the purpose of removing him, when the assault and battery complained of took place. The defendant offered to prove that at the time when the plaintiff forbade his proceedings, he was acting in pursuance of a determination previously made by the commissioners of highways, to regulate, repair and alter the landing place in question ; but the evidence being objected to, was rejected by the judge. The defendant also offered to prove that on the 25th March, 1835, proceedings were instituted against the plaintiff under the act regulating highways and bridges in the county of Suffolk, Queens and Kings, for an encroachment upon the landing by the erection of the fence, (in which proceedings, the locus in quo is designated as a “ certain highway or public landing,”) and that a jury were summoned, who after hearing the evidence, certified that the place in question had leen encroached upon by the plaintiff; but this evidence also being objected to, was rejected by the judge. In relation to the user of the landing by the public, the same evidence in substance was given in this case as in the former. The judge charged the jury in the first case, that the public might acquire a right or easement in the lands of an individual by dedication to the public use, and that such dedication might be by writing or without writing; that in this case there was no direct evidence of the act of dedication by the owner of the fee, but that the defendant relied upon long continued user. He instructed the jury that such user between individuals, would be evidence of a grant; and that as between the owner of the fee and the public, an actual and uninterrupted user for twenty years, accompanied by a claim of right brought home to the knowledge of the owner, was evidence of dedication. During a portion of the twenty years, the property was held by individuals under particular estates; the time of the continuance of which estates the judge directed the jury to exclude from their consideration, as it regarded the question of acquiescence. The jury found a verdict for the defendant. In the second, cause, the only question submitted was that of damages, and the jury found for the plaintiff, with six cents damages and six cents costs. The plaintiff in the first, and the defendant in the second cause, applied for new trials. Both causes were heard in one argument.</p>

<p>This case came before the court on a return to a certiorari made by the common pleas of New-York, to review the proceedings had in that court for the purpose of assessing the damages sustained by the defendants in error in consequence of the destruction of a building, of which they were lessees, by order of the mayor of New-York with the concurrence of two of the aider-men of the city, by virtue of the powers conferred upon him by the 81st section of the act particularly relating to the city of New-York, 2 R. L. 368, during the great fire in that city, which commenced 16th December, 1835. The return shewed, 1. A precept issued by the mayor commanding the sheriff to summon a jury to enquire, &c. 2. An inquisition of the jury finding that the defendants in error were lessees of a building destroyed, and assessing their damages at a certain sum. 3. An affidavit of the counsel of the corporation detailing the facts elicited on the inquiry, as that the defendants in error had at that time goods in store toxthe amount of $225,743.70, of which goods a part only amounting in value to $4,586.52 belonged to them, and the residue was held by them as factors or commission merchants, and that a portion of the goods belonging to them to the value of $1,614.80 was saved ; that the goods in the store at the time of the fire were insured to the amount of $106,500 on policies of insurance, of which sum $60,960 had been paid by the insurers, and received by the defendants in error. 4. An agreement that the assured should pay over to the insurers such proportion of the damages which should be recovered in their proceedings as should belong to them ; and 5. A rule of the common pleas setting forth the inquisition and stating the filing of the affidavit of the counsel of the corporation, and then confirming the inquisition. There were two other cases brought up at the same time in which the proceedings were the same as above stated, except that by one of the inquisitions damages were assessed and allowed to several individuals without stating the interest they had in the building destroyed, or the nature of the loss sustained, as thus “and they further upon their oaths say that George “Meyer having an interest in the said premises Number 57. “ Water-street, has sustained damage by means in the said writ c< mentioned over and above his costs and expenses of the said a inquisition and proceedings to the amount of $4,345.38, be-u side his expenses incurred about the said injury, assessment and ^proceedings to be taxed and allowed.” In reference to which assessment in favor of George Meyer the counsel for the corporation in his affidavit stated, 61 that a claim was also made by and u on behalf of George Meyer for merchandize destroyed in the 66 cellar of the said building No. 57, Water-street, valued at |4,~ a 959,50, at a credit price j in relation to which claim it appeared ££ in evidence that the whole of the said merchandize belonged <£ to persons in London, and had been consigned to the said George 6£ Meyer for sale j and that the same was deposited by hin on a storage with the said Lansing and Monro in the said cellar.” The counsel for the corporation further stated in his affidavits in one or other of the cases, that the judge presiding at the taking of the inquests charged the jury in substance; that a lessee of a building destroyed was entitled to recover the full value of goods lost by such destruction, although he held them merely as a factor for sale on commission, because a commission merchant, having goods on hand for sale, upon which he had made advances or had a lien, was in law deemed the owner of the goods and was entitled to recover the full value thereof in his own name, subject only to an account with his principal : that the circumstance of the goods having been insured, and of moneys having been received on such insurance, was not a ground of diminishing the recovery inasmuch as the assurers had a right by substitution to indemnity in the name of the assured under the act; that persons having property stored in a building, although not tenants or occupants thereof, were protected by the act equally with owners, lessees or occupants, and might be claimants under the act; that it made no difference whether the property belonged to the claimant in his own right, or was held by him as a consignee, commission merchant, factor or agent, and that the jury would be warranted in allowing interest upon the value of the goods destroyed ; which charge was excepted to by the counsel for the corporation. The jury in making their assessment followed the instructions of the judge. The causes were argued by</p>

<p>An affidavit to obtain an attachment against a party for having departed the county with intent to defraud his creditors, is good although the applicant swears only to his belief as to the intent, provided he sets forth the facts and circumstances upon which such belief is founded.</p> <p>Where the proceeding is under the provisions of the Revised Statutes, it is no objection that there are more than four days between the teste and return of the process.</p> <p>A return of a constable, that by virtue of an attachment against A, B. he had levied on certain property, will be intended to be a return that he had levied upon the property of the defendant.</p> <p>On a common law certiorari, if the justice had jurisdiction, his judgment will not 1c reversed, though it be rendered on an insufficient declaration or defective proof; nor will such judgment be reversed, although it be for an amount nearly double the sum alleged by the plaintiff to be due to him on obtaining the attachment ,</p>

Common law certiorari. From the return in this case, it appears that on the ninth of June, 1836, Moss, the plaintiff below in the last preceding case, {ante, 145,) sued out another attachment against Johnson, by virtue of which the constable levied upon a span of Hack metres. On the return of the process, the plaintiff declared on the judgment obtained on the 23d May, and on production of proof, the justice rendered a second judgment for the plaintiff.

<p>This was an action of ejectment, tried at the Monroe circuit in October, 1835, before the Hon. Addison Gardiner, then one of the circuit judges.</p> <p>The plaintiffs claimed title to the premises in question on the following state of facts : It was admitted that previous to the 13th August, 1817, Charles Carroll, William Fitzhugh and Nathaniel Rochester were seised of a tract of 100 acres of land covering the premises in question, and that both plaintiffs and defendants claim under that title. The plaintiffs then produced in evidence, 1. A partition deed between Carroll, Fitzhugh and Rochester of the above tract, bearing date 13th August, 1817, by which mill seat lot member twelve (the premises in question,) among other parcels, was allotted to Rochester ; 2. A second partition deed between the same parties, bearing date 19th September! 1822, whereby certain alterations were made in the numbers and size of various mill-seat lots; and other mill-seats laid out and divided between them; 3. A deed from Rochester to William Cobbj bearing date 9th November, 1819, conveying “All that “ certain piece or parcel of mill-seat lot JVo. 12 in the village of “Rochester, beginning at the northwest corner thereof on the “ south bounds of Buffalo-street, running thence southwardly “ along the east bounds of the mill-yard and at right angles with “ Buffalo-street 30 feet; thence eastwardly parallel with Buffalo- “ street about 45 feet to the Genesee river; thence northwardly “along the shore of said, river to Buffalo-street; thence along “ the south bonds of Buffalo-street westwardly to the place of “ beginning: together with a privilege of taking water from the “ present mill-race near the mill now occupied by Bissel & Ely; “ such water to be conveyed in front of and near the said mill “ and below the surface of the ground, to be kept well covered “ so as not to obstruct the passage and use of the mill-yard &c. “ &c.” (prescribing the quantity of water to be used ; giving a right in common to the use of the mill-yard fronting the mill occupied by Bissel & Ely and extending to the said lot number twelve; and subjecting the grantee to a proportion of the expense of repairs on the dam and raceway, See. See.;) and 4. The plaintiffs produced in evidence a deed from the said Nathaniel Rochester to Thomas Morgan, bearing date on the same day with the deed last mentioned, conveying the residue of the said mill-seat lot No. 12 to the grantee, in which the premises conveyed are described as beginning at the southwest corner of the premises conveyed to Cobb, running thence southwardly along the east bounds of the mill-yard 25 feet ; “thence eastwardly along “ the north bound of an alley and parallel with Buffalo-street, to “ the Genesee river (nearly fifty feet;) thence northwardly along “ the shore of the Genesee river to William Cobb’s corner thence to the place of beginning. 11 Together with the privilege of taking water from the present mill-race,” & c. & c. (containing the same provisions as in the deed to Cobb.) After the production of those deeds, the plaintiffs deduced a regular title under the same to themselves. The judge charged the jury that upon a true construction of the deeds executed by Rochester to Cobb and Morgan, the grantees had obtained title to the centre of the Genesee river, and that title having become vested in the plaintiffs, he directed the jury to find a verdict for them, which they did according to such direction. The defendants having excepted to the charge of the judge, now moved for a new trial.</p>

This was an action of trover, tried at the Chemung circuit, in June, 1837, before the Hon. Robert Mon ell, one of the circuit judges. The suit was brought for a quantity of merchandize sold by the plaintiff, a merchant in the city of New-York, to one Hobart B. Graves, which was forwarded from the city of New-York to Havanna} a village at the head of the Seneca Lake, in pursuance of the direction of Graves.

Motion by plaintiffs to set aside inquisition on the ground that the damages are excessive. On 24th September, 1834, the plaintiffs replevied three boat loads of lumber which the defendants had at Albany, and were about forwarding to Boston for sale. The defendants had several other boat loads of lumber, a part of which they were about selling in Albany to raise money to pay off a mortgage to Cable, of which Fitch fy Losee had the control.

This was an action of assumpsit, tried at the Onondaga circuit in March, 1836, before the Hon. Daniel Moseley, one of the circuit judges. The defendant agreed to sell to the plaintiff from sixteen, to, twenty hundred bushels of oats, at forty-nine cents per bushel.

Proceedings against ships and vessels. This was a motion to set aside the report of a referee, to whom had been referred the claim of the plaintiffs inan action on a bond executed by the defendants, to obtain the discharge of a steamboat from an attach- . ment issued against her.

Error from the New-York C. P. This was an action of ejectment to recover possession of a house and lot ofland in the city of New-York. On the trial, the plaintiff made out a title in fee to the premises, derived from Thomas Ellison. The defendants claimed under William Corwin. Thomas Ellison being seised in fee of the lot of land in question, demised the same to Corwin for the term of 21 years, from the first day of May, 1793, at a certain yearly rent.

Proceedings against ships and vessels. Aaron Hubbell the plaintiff in this cause, sued out an attachment against the schooner Columbus: The defendants gave bond to obtain the discharge of the vessel when the plaintiff commenced a suit against them, and declared that on &c., at &c., he had a debt of $138.50 due to him, contracted by Stephen A. Hubbell, the master-builder8 owner, and contractor for building a certain schooner or vessel called the Columbus, for the work and…

This was an action of assumpsit, tried at the Herkimer circuit in May, 1837, before the Hon. Jornr Willard, one of the circuit judges.

<p>Certiorari to remove the proceedings of judges in laying out a highway in the town of German Flatts, Herkimer county. The commissioners, on application, refused to lay out the road $ Jacob Bartlett and others appealed to the judges, who reversed the determination of the commissioners, and made an order laying out the road through the land of Michael Edick and others. The return states that the judges met on the 24th October, 1834, viewed the route of the road, and made an order in writing that the proceedings of the commissioners be reversed, and that the road be laid out pursuant to the prayer of the petition; that before proceeding to lay out the road, they adjourned to the 1st of November, for the purpose of hearing objections by the owners of the land through which the road passed. On the 1st of November, they met and surveyed the road ; the heirs of Joshua Randall made objections, and the judges adjourned to the 10th of November. They met on the 10th, heard the parties, and on the 13th November made their final order. No notice in writing was given to the commissioners of highways, nor to the occupants of the lands. But one of the commissioners met with the judges, and the return states that the judges on the 1st of November went to the house of the son of Michael Edick, and informed him of the time and place of meeting. Whether this was for the meeting on the 1st or the 10th of November, does not appear • but on the 10th of November Edick appeared and was sworn as a witness.</p>

Landlord and tenant. In this case Green instituted proceedings against Wilson, under the statute, for holding over after the expiration of his term, certain premises which had been demised to him. In the progress of the cause, Wilson applied for an adjournment, which was refused by the judge before whom the proceedings were had. A trial was then had before a jury, who found a verdict in favor of Green.

Demurrer to declaration. The plaintiff declared in sl.anderT charging the defendant with speaking words imputing to him the crime of forgery, in respect to bank bills.

This was an action of assumpsit tried at the New-York circuit in June, 1838, before the Hon. Ogden Edwards, one of the circuit judges. The plaintiff as endorsee, sued the defendant as endorser of two checks drawn by B. RatKbun, on the Commercial Bank of Buffalo : one for $2,000, dated July 17, 1836, payable to the order of and endorsed by the defendant, who resides in the city of New-York.

Error from the superior court of the city of New-York. Bloomer sued Vance in the marine court of the city of New-York on a due-bill in these words: “ Due G. Bloomer or bearer 44 dollars 30 cents, to be paid in ready made clothing after this date.” (Signed) James Vance.

Error, from the Tompkins common pleas. Randall sued Watson in a justice’s court on a promise made by him, that if the plaintiff would not sue Mrs. Thomas, the mother of the defendant, for the recovery of a debt which she owed to him-, that he would pay the debt by a certain day.

Demurrer to declaration. The action was against the defendant as the endorser of a check drawn by Benjamin Rathbun, on the cashier of the Bank of Buffalo for $500, payable to the defendant’s order. The check was dated August 21, 1836, but as.the count alleged was drawn on the 9th day of that month. The 21st day of August was Sunday, and payment of the check was demanded and notice of non-payment given to the defendant on Saturday the 20th day of the month.

Landlord and tenant. Proceedings were commenced by Morgan against Farrington before an assistant justice of one of the wards of the city of New-York for holding over, after the expiration of the term, certain premises demised to him.

This was an action on the case, tried at the Saratoga circuit in May, 1833, before the Hon. Esek Cowen, then one of the circuit judges. The declaration charged, that by the negligence of a servant of the defendant in driving a gig, a son of the plaintiff of the age of about ten years, was run over and killed.

<p>This was an action of covenant, tried at the Herkimer circuit, in November, 1837, before the Hon. John Willard, one of the circuit judges.</p> <p>George H. Feeter having transferred to the plaintiff a promissory note made by John D. Petrie and Adam Petrie, for the sum of $313.23, payable with interest, bearing date,28th January, 1833, and having guaranteed the payment thereof, the plaintiff commenced a suit against John D. Petrie (the other maker having died) for the recovery of the note. When the cause was ready for trial, it was found necessary in order to resist a defence of payment set up by the defendant, that Feeter should be released from his liability as guarantor, so that he might be called as a witness in support of the action. Feeter thereupon procured the defendant to execute an instrument under seal, covenanting and agreeing with the plaintiff to pay to him the amount of the note made by the Petries with the interest thereof, and also the costs of the suit against John D. Petrie (including the defendant’s costs, if the plaintiff should become liable therefor,) and of all suits in relation to the note in case the plaintiff should fail to recover said amount in the suit then prosecuted against John D. Petrie, or should be unable to collect the same in case he should obtain judgment therefor, provided that the plaintiff should prosecute the cause with due diligence. This covenant was stated to have been entered into in consideration of one dollar paid by the plaintiff to the covenantor, and also in consideration that the plaintiff, at the request of the covenantor, had released and discharged Feeter from his guaranty of the note, made by the Petries. On this covenant the plaintiff declared, averring that he diligently prosecuted the suit, but that he failed to recover3 a verdict having been found for the defendant, on which judgment was subsequently rendered for the defendant with the costs of the defence. He then assigned as breaches of the covenant, the non-payment of the amount of the note, the cost of the suit, and other costs incurred by reason of the filing of a bill in chancery by John D. Petrie in relation to the note. The defendant pleaded non est factum and various other pleas. On the trial of the cause, the execution of the covenant declared upon was proved, and it was also proved, that on its delivery to the counsel of the plaintiff, a release was delivered to Feeter from his liability under the guaranty executed by him, and that Feeter wras sworn as a witness on the trial of the cause of the plaintiff against Petrie, After the testimony was closed, the defendant insisted that the instrument declared upon was void for maintenance ; which objection, together with several others, was overruled by the circuit judge, who directed the jury to find for the plaintiff. The jury accordingly found a verdict for the plaintiff with 0783,68 damages. The defendant excepted to the decisions of the judge and procured a bill of exceptions to be sealed. At the last May term, the plaintiff moved for judgment on the ground of the frivolousness of the bill of exceptions, when all the exceptions were overruled except that above noted, in respect to which the court directed an argument. The cause was accordingly argued upon that point at the last July term, by</p>

Error from the Oswego common pleas. Lockwood and Car-' ter sued Bennett in a justice’s court, and declared in an action on the case, for taking a horse and wagon belonging to the plaintiffs from the possession of one Crippen, to whom the same had been let, and using the horse and wagon. The plaintiffs alleged, by way of special damage, that they had been subjected to expenses in searching for their property.

This was an action of slander, tried at the Oneida circuit, before the Hon. Hiram Benio, then one of the circuit judges. This suit was brought for words spoken by the defendant, charging the plaintiff with an assault with intent to kill the defendant or one Ira Lusk.

Error from the mayor’s court of the city of Rochester. Gould and Frink brought an action of assumpsit in the mayor’s court of the city of Rochester against Grover, and declared that “ for that whereas the said defendant on, &c. at the first ward in the city of Rochester, in the county of Monroe, and within the jurisdiction of this court, was indebted to the said plaintiffs in the sum of $249, of lawful money, &c., for divers goods, wares and merchandizes by the said…

This was an action of ejectment, tried at the Monroe circuit in October, 1836, before the Hon. Addison Gardiner, then one of the circuit judges. The plaintiffs claimed to recover three undivided fifths of about 49 acres of land, as heirs at law of James Kennedy, who being an alien came to reside in this state in the year 1802. In 1810 he entered into a contract with Daniel Penfield for the • purchase of the premises in question, Penfield then being the owner of the same.

Error from the New-York common pleas. Boughton sued Bruce in an action of replevin in the detinet, for three promissory notes delivered to the defendant as collateral security for the payment of another note made by the plaintiff to the defendant on an usurious agreement. The plaintiff proved a demand of the notes for which the action was brought, and a refusal by the defendant to deliver them up.

This was an action of debt against the defendant, as sheriff of the county of Ulster, for the escape of a prisoner from execution, tried at the Ulster circuit in October, 1836, before the Hon. Charles H. Ruggles, one of the circuit judges.

This was an action of replevin noticed for trial at the Oneida circuit, in May, 1837, and submitted to the Hon. John Willard, one of the circuit judges upon a case agreed upon by the parties setting forth the following facts : On the 12th December, 1835, Jl.

<p>A deed where a sale is had under a surrogate’s order, omitting to set forth at large the order of sale made by the surrogate, is inoperative at law until confirmed by the chancellor ; it need not be literally recited, but every substantial part of it should be set forth.</p> <p>Where measures are authorized by statute in derogation of the common law by which the title to land of one is to be divested, and transferred to another, every requisite having the semblance of benefit to the former must be strictly complied with.</p> <p>So where the interest of a party is to be affected by an order which is required by statute to be drawn up in a specified form, the requirement must be exactly pursued, or the order is void.</p> <p>A surrogate’s order of sale of real estate for the payment of debts, cannot ordinarily be impeached collaterally even for fraud ; if the surrogate obtains jurisdiction by the presentment of an account of the estate and debts of the deceased, his adjudication that the personal estate is insufficient for the payment of debts, followed by an order of sale, is conclusive in any collateral proceeding.</p> <p>Such adjudication is examinable only on appeal, or by a proceeding in the nature of an appeal.</p> <p>It seems that an account of debts, stating neither the names of the creditors, the amounts due them severally, nor the consideration of indebtedness, would not confer jurisdiction upon the surrogate ; nor, it seems, would funeral expenses of the deceased be a proper item of such account.</p> <p>A penalty incurred by the deceased in a contract made by him while living, is a proper item of such account, and will be deemed due to its whole amount, either as equivalent to actual damages, or as stipulated damages. 1</p>

This was an action of assumpsit^ tried at the New-York circuit in May, 1837, before the Hon. Ogden Edwards, one of the circuit judges. The plaintiffs are endorsees of a promissory note for S3,000, made by the defendants to Samuel S. Hill, dated 27th July, 1835, payable twelve month's after date. The defendants were partners in trade, and the note was signed in the partnership name, “ Thomas Evans & Sons,” by Thomas Evans, the senior partner.

This was an action of ejectment, tried at. the Tompkins circuit in October, 1831, before the Hon..Robert. Monell, one of the circuit judges. The plaintiffs made title to the premises in question: 1. By a conveyance from John Richardson to Polhemus, one of the plaintiffs, bearing date 16th April, 1796; and 2.

<p>Ml debet is not a good plea to a declaration in debt on recognizance ; the statute relative to notice of matter to be given in evidence oythe trial, to be served with the plea of nil debet, does not authorize that plea to be interposed in cases other than those in which before it was proper.</p>

<p>Error from the supreme court. Everett brought an action of trover in the superior court of law of the city of New-York against Messrs. Salt¿£, for a quantity of lead. In August,-1825y Bridge §• Vose, merchants at New-Orleans, shipped 179 pigs of lead on board the brig Dove} of which^William Collins was master, consigned to Messrs. Tufts, Eveleihcf Burrell, of New-York, on account and risk of Otis Everett, the plaintiff, to whom they referred-for instructions. The Dove put into Norfolk, in distress, and part of the lead was sold, to pay expenses, and the residue was transferred in December, 1825, by an agent of Capt. Collins, to the schooner Dusty Miller, Captain Johnson, who signed a bill of lading, acknowledging the lead to have been shipped by F. M., agent for William Collins, and promising to deliver the same in New-York, to order, on payment of freight. The Dusty Miller met with a disaster on her voyage to New-York, and on her arrival there, the lead, by the order of Captain Collins, was delivered to the firm of Coffin $f Cartwright, who paid the freight, and $72.87, the average contribution charged upon the lead, for the loss occasioned by the disaster to the Dusty Miller. On the 9th March, 1826, Coffin Sf Cartwright sold the lead to the Messrs. Saltos, the defendants, for $542.74, and received payment. The freight of the lead from New-Orleans to New-York amounted to $14.72. Everett brought an action against Coffin is Cartwright, to recover the value of the lead, but was non-suited, in failing to prove that before suit brought, he offered to pay the freight, average and charges to which the lead was liable, and which had been advanced by Messrs. Coffin and Cartwright, and this court, on application, refused to set aside the non-suit. See 6 Wendell, 603. In October, 1831, the plaintiff demanded the lead of the Messrs. Saltus, and offered to pay any lawful demands they had on the same ; to which they answered, that they would have no further communication on the subject. It was proved.that in March, 1826, one of the firm of Tufts, Eveleth §* Burrell demanded of the Messrs. Saltus the lead, or its value, and received for answer, that they had bought the lead, and paid for it, and would not do any thing about it. Upon this evidence the plaintiff was again non-suited. Whereupon he sued out a writ of error, removing the record into the supreme court, where the judgment of the superior court was reversed. See opinion delivered in the supreme court, 15 Wendell, 475, et seq. The defendants then removed the record into this court, where the cause was argued by</p>

Error from the supreme court. Ogden andM’Comb brought an action in the superior court of law of the city of JYew-York, on a policy of insurance underwritten by the American Insurance Company, on three-fourths of a schooner, in the names of Ogden & M’Comb, as the agents of the owner—loss payable to them. The policy was on time, for six months from the 17th of November, 1829—sum insured, $1,800.

Error from the supreme court. This was an action on the case, by Suydam & Boyd against S. & M. Allen, for negligence in omitting to present for acceptance,a draft for |616.89, drawn by one John Eastabrook, at New-York, on W. W. & J. E. Eastabrook, a mercantile firm transacting business at Concord, New-■Hampshire, in favor of the plaintiffs, bearing date 21st July, 1833, and payable two months after date.

<p>The widow of a natural born citizen who was an alien when the act passed in 1802, enabling aliens to purchase and hold real estate, is not entitled to dower under the provisions of that act, where the lands in which dower is claimed were acquired by the husband, and the marriage took place previous to the passage of the act,</p> <p>-A feme covert who is an alien may be naturalized; but her naturalization has not, under the general acts of congress, a retroactive operation, so as to entitle her to dower in lands of which her husband was seised during Coverture, and Which he had aliened previous to her naturalization.</p> <p>•A feme covert is not barred of her right of dower by joining with her husband in the conveyance Of lands, and acknowledging her execution of the deed before an officer authorized to take the acknowledgment of deeds, if at the time of such acknowledgment, she be a minor within the age of twenty-one.</p> <p>•B seems, that such feme covert need not do any act disaffirming such convey nee before suit brought for the recovery of dower.*</p>

<p>A private, act of the legislature authorizing the sale qf the estate of infants, for their maintenance and education, is within the scope of the legitimate authority of a state legislature.</p> <p>Such act is constitutional; it neither violates the provision of the constitution of this state, adopted in 1776, viz. that no member of this state shall be disfranchised or deprived of his rights, unless by the law of the land or the judgment of his peers; nor the provision of the constitution of the United States inhibiting the passage of laws impairing the obligation of contracts.</p> <p>Where an act for the sale of the estate of infants required the assent of the chancellor, an order for sale to be made by him, and an investment of the proceeds, so as to secure to the infants at least the principal of the purchase money; and the chancellor in his order authorized the proceeds of the sale to be applied, among other things, to the payment qf the debts of the father of the infants, and a sale took place and a conveyance of the property executed: It was held that, the chancellor having jurisdiction in the matter, no error committed by him in directing the application of the proceeds in a manner different from that provided by the legislature could affect the title of a bona fide purchaser, in an action atiaw, brought by the infants for the recovery of the property. 1</p> <p>Where the order of sale authorized the trustee to sell, or to mortgage or to convey '¡the premises in satisfaction qf any debt owing by him, requiring, however, that every sale, and mortgage, and conveyance in satisfaction, should be approved by a master, by a certificate endorsed on the deed; and a sale for cash took place, and a deed was executed without the approval of the master obtained, it was held, by a majority of the court, that the approval of a master was hecessary only in the third alternative, specified above, and that consequently the deed executed on a sale for cash was valid, notwithstanding the want of such approval.*</p>

<p>Where a banking company, incorporated in another state, kept an office in the city of New-York for the purpose of discounting notes and issuing bills to be put in circulation as money, and the president of such company entered into an agreement with a broker of New-York to receive of him all notes of the banking company which he should procure in his business as a broker, and pay him the amount thereof in cash, deducting a discount of one-eighth of one per cent., it was held, on demmrrer to pleas alleging those facts and averring that the agreement was entered into to aid the banking company in the above operations, and that by means thereof, and the acts of the plaintiff under the agreement, the banking company was the better enabled to carry on its operations and business of discounting and issuing notes at their office in the city of New-York, that the agreement was void, as made with the design to violate the provisions of the statute of this state forbidding all associations (unless expressly authorized so to do) to keep an office within this state,“for the purpose of discounting notes, or issuing bills to be loaned or,put in circulation as money.*</p>

Error from the supreme court. - Westervelt, as sheriff of the city and county of New-York, by virtue of several writs of fieri facias, on 28th February, 1834, sold all the interest of the defendants in the execution, in certain leasehold premises, which had been demised on 21st March, 1833, for the term of twenty-one years, to W. S. Sears for the sum of $400, who paid the amount of the bid, and claimed an absolute assignment of the premises purchased.

<p>Error from the superior court of the city of New-York. William R. Van Cortlandt and others, the heirs at law of William Ricketts Van Cortlandt, commenced an action of ejectment against Charles Tozer, for the recovery of part of a house-lot in the city of New-York. The property in question, was devised in 1754, by the grandfather of the plaintiffs, to his wife Mary, for life, witlpremainder in fee to his two sons, Philip Van Cortlandt and William Ricketts Van Cortlandt, as tenants in common. The testqtor died in 1756. In 1759, his widow married the Rev. Philip Hughes, and on the 8th April, 1770, she and her husband released her life estate in the premises to her son Philip. Mrs. Hughes died in 1789. William Ricketts Van Cortlandt married in 1765, and in 1783 became a lunatic, and continued in that state until his death in 1830 ; he left four children, three of whom are plaintiffs in this cause. On the part of the defendant was produced and read in evidence, a certified copy of the record of a deed from William Ricketts Van Cortlandt to his brother Philip, purporting to bear date 31st December, 1764, conveying the property in question, together with other property, to the grantee in fee. This deed purported to have been executed in the presence of two subscribing witnesses, and its execution to have been proved by one of the subscribing witnesses, before a judge of the court of common pleas of Queens county, on the 2d March, 1768, and to have been recorded in the clerk’s office of that county on 20th July, 1771. The copy produced was certified by the clerk of the county of Queens in 1833 ; the counsel for the plaintiffs objected to its being read in evidence, but the objection was overruled. The defendant also proved, that in 1772, Philip Van Cortlandt mortgaged the premises in question to one Dennis Carlton, to secure the payment of the sum of ¿61200 ■ that the mortgage was foreclosed, and under a decree in chancery, made in 1786, the premises were sold to one Jonathan Pearsy, who was shown to be in possession of the same in 1791, and under his title it has been held ever since. Philip Van Cortlandt occupied the premises in question during the revolutionary war i he was a major in the British army, and at the close of the war went with his family to England. He never returned to this country, and has been dead several years. The jury, under the charge of the presiding judge, found a verdict for the defendant, on which judgment was entered. The plaintiffs •sued out a writ of error, removing the record into the supreme court, where the judgment was affirmed. See the opinion delivered in that court, 17 Wendell, 339, et seq. The plaintiffs then removed the record into this court, where the case was argued by</p>

Error from the supreme court. Hunt brought an action in the ■ífew-York common pleas for the non-delivery of goods purchased by him at a sale by the -defendants as auctioneers-, the terms of sale were approved endorsed paper at six months for sums over $100, and under that amount cash, without discount. The plaintiff purchased five parcels, which were separately struck off to him, and amounted together to the sum of $224.40.

Erbob from the supreme court. This was an action of ejectment, brought by Fox against Phelps, in the superior court of law of the city of New-York, for the recovery of the undivided fourth part of a house and lot. - The plaintiff proved that his grandmother, Catharine Thorne, .died seized of the premises ;■ that she left five children her heirs at law ; that one of them, named Thomas, died in 1807 or 1808, without issue, and that another, Abigail, the mother of the…

<p>Error from the supreme court. Jenkins brought an action of replevin against Pell, in the New-York common pleas. The defendants avowed the taking of the goods in question for rent in arrear, setting forth the making of an affidavit of the amount of rent due, See. and the delivery of a warrant of distress to a marshal of the city, by virtue whereof the goods were taken. The affidavit, made on the 26th April, 1834, was in these words : “ City and county of New-York, ss. Ferris Pell, being duly sworn, says, that Thomas Jenkins is justly indebted to him in the sum of one hundred dollars, lawful money of the United States, for rent of certain premisés, situated No. 77 Grand-street in the said city, for one quarter’s rent due the first day of February last.” The warrant of distress delivered to the marshal was in one of the avowries alleged to be a warrant of distress in writing ; in the other the allegation was merely that a warrant of distress was delivered to the marshal. On the trial of the cause it was admitted by the counsel for the plaintiff, that the plaintiff held the demised premises as the tenant of the defendant under the rent and payable at the time in the avowries mentioned. (The avowries stated that the plaintiff held under the yearly rent of $400, payable quarterly, on the first day of August, November, February and May, by even and equal portions.) It was further admitted, that the sum of $100 of the rent for the space of three months beginning on the first day of November 1833, and ending on the first day of February, 1834, was due and in arrear at the time of the distress. The warrant of distress produced on the trial was under seal. The counsel for the plaintiff raised two objections to a verdict for the defendant : 1. that there was a variance between the warrant, as described in the avowries and as produced in evidence; the warrant produced being under seal, and the avowries containing no allegation that it was under seal; and 2. that the affidavit did not conform to the requirements of the statute. The court of C. P. overruled the objections, and the jury, under its direction, found a verdict for the defendant, on which judgment was entered. The plaintiff having excepted to the decisions of the court, the record was removed into the supreme court, where the judgment of the C. P. was affirmed. See the opinion delivered in the supreme court, 17 Wendell, 418. The plaintiff sued out a writ of error removing the record into this court, where the ease was argued by</p>

The appellant filed a bill of discovery relative to certain property in the city of New-York, in the possession of the Reformed Protestant Dutch Church of that city, and praying an account, &c.j he alleged that the church was an incorporated body, and was in possession of the property in question, under a devise contained in the will of John Harberdinck, bearing date 23d April, 1722 ; which devise he averred to be void, on account of the incapacity of the church to take real…

The respondents filed a bill in chancery, before the vice chancellor of the fifth circuit, to set aside as fraudulent an assignment made by Stoddard, one of the appejlants, to Thurber and Townsend, the other appellants in this case. The respondents being creditors of Stoddard, commenced; a suit in January, 1834, for the collection of the demand due to them.

The appellant filed a bill against the respondent before the vice chancellor of the fourth circuit, to redeem a lot of land sold under a foreclosure of a mortgage, executed by one Daniel Mason to William Stevenson in the year 1824, of which the respondent had become the assignee, and which was foreclosed by her.

<p>A devise of real estate to executors in trust to receive the rents and profits, and pay over the same to the children of the testator for the term of twenty-one years, is void; so, also, a power in trust to make partition at the end of such term is void.</p> <p>Where, by the same will, the testator gave to each of his grandchildren who should be living at the time of his death the sum of $6,000, to be paid upon their attaining the age of twenty-one, or marrying, such payment, however, to be subject to the approbation of the parents of the grandchildren, and the time of payment to be.fixed by them 5 it was Held, that the legacies were vested and not contingent, and that the power given to the parents did not prevent the vesting of the legacies.</p> <p>The bequest of the legacies to the grandchildren being in itself free from objection, and having no necessary connection with the trust adjudged to be void, it' was held, that the will in respect to such legacies should be carried into effect, notwithstanding that the trusts created by the will were declared void : this de cisión is in accordance with Hawley v. James, 16 Wendell, 61, though not with Root v. Stuyeesant, IS Wendell, 257. #</p>

The respondents filed a bill in chancery, before the vice chancellor of the first circuit, against the appellants and others, asking for a decree subjecting the income of certain trust property to the payment of a debt due to them, for a quantity of coal furnished on the order of Joshua Dyett, which was appropriated in the carrying on of a cotton factory, into which a portion of the trust property had been converted.

Jacobus Barheydt and others, heirs at law of John I. Barheydt, filed a bill in chancery for the partition of certain premises, which had been devised by the ancestor to his grandson John, the son of his son John, the appellant in this cause; the complainants below contending that the devise to the grandson gave a mere life estate, and that the devisee having died, the property had descended to the heirs at law of the testator.

<p>This was a motion to dismiss an appeal from an interlocutory order of the court of chancery. The appellant, who was the defendant in the court below, made a motion before the chancellor on the 6th of September, 1837, which was denied by the chancellor on the 27th August, 1838. Daniel Anderson, the respondent, who was the complainant below, having died in the month of May, intermediate the hearing and the decision, the order of the chancellor denying the motion was, by his direction, entered nunc pro tunc, as of the time the motion was heard. On the 11th September, 1838, the solicitor for Daniel Anderson in his lifetime, served notice of the chancellor’s order on the solicitor of the appellant, Samuel Anderson, who thereupon, within the fifteen days allowed for appealing from interlocutory decrees, appealed to this court, and executed a bond <c unto Daniel Anderson, if living, and if not living, then to his executors, administrators or representatives and heirs, and to those who may succeed to the rights of the said Daniel Anderson in the subject matter of the suit mentioned in the recital of this bond.”</p>

On the petition of Samuel Ward and others, who were stockholders of the Sea Insurance Company, praying the appointment of a receiver and the issuing of an injunction pursuant to the statute relating to proceedings against corporations in equity, 2 R. S. 461, the court of chancery, on the 3d day of December last, made a decree directing a reference to one of the masters of the court to appoint a receiver of the property and effects of the company, and investing the receiver…

Mandamus. This was a motion for a mandamus directing the comptroller to issue his warrant, authorizing the treasurer to pay to the relators certain moneys drawn for by them, under the following state of facts : In 1836, an act was passed by the legislature of this state authorizing the establishment of a state lunatic asylum, Statutes,■ sess. of 1836, p. 110.

Question of costs. This was an action of debt, on a bond given by a deputy sheriff and his sureties, conditioned for the faithful discharge of the duties of the office of deputy. The plaintiff assigned six breaches : four of which related. to one default of the deputy, and two to another. The cause of action in the four breaches was the same ; the breaches differing only in form. So of the two breaches. The plaintiff recovered a verdict.

Mandamus. This was an application for a mandamus, commanding the sheriff of Jefferson to execute a deed of certain premises, sold by virtue of an execution against the Brownville Cotton Factory, struck off at public vendue to W. Averill, and claimed to have been redeemed by the relator.

In this case, which is an action of replevin against the defendant as sheriff of the city and county of New-York, for taking certain property on an execution issued in favor of Gardner Gallup, an application was made in behalf of the plaintiff in the execution, that he be permitted to defend the action by a certain law firm in the city of New-York as his attorneys, and that they be substituted as such attorneys for JV*.

Special bail. The superior court of the city of New-York ordered an ex oneretur to be endorsed on a bail piece under these circumstances : On the 15th January a declaration was served de bene esse, in a suit commenced by the relators by capias. On the 25th January special bail was put in, and notice thereof given to the plaintiffs’ attorney, who on the next day excepted to the bail, and gave notice of exception.

Confession of judgment by one of several partners. The plaintiffs filed a declaration and entered a rule to plead, but before service of copies of the declaration upon the defendants, received a warrant of attorney under seal, executed by S. Holmes for himself and as attorney for his copartner, authorizing the confession of a judgment in favor of the plaintiffs ; and by virtue of which a judgment was accordingly entered against both defendants.

Practice under usury laws. On an affidavit setting forth that the defence in this case is usury, that the plea is duly verified, that the defendant can not safely proceed to trial without the testimony of the plaintiff who resides in the state of Vermont, and that the cause is noticed for trial at the Monroe circuit, a motion is made to stay proceedings unless the plaintiff shall attend the trial, so that he may be examined as a witness, in pursuance of the provisions of the…

The defendant was attached for not putting in special bail in replevin, for one Hopkins at the suit of the relator. The attachment was returnable on the first Monday of January last, but was not served in its life. After it expired, the coroner who held it sent it to the sheriff (the defendant) who admitted the service, and caused the writ to be filed, with a return endorsed, on the 28th of January, nünc pro tunc.

Motion to set aside an attachment. On the 31st May, 1839, an attachment was issued by the circuit judge of the first circuit against the real and personal property of Cornelius G. Van Riper, as a non-resident debtor, under 1 R. S. 764, 2d ed. § 1, sub. 2, et seq. The non-residence of Van Riper was duly shown by the affidavits of two witnesses.

In this case the corporation presented a petition for leave to discontinue their proceedings in the above matter. The petition stated among other things, that, on the application of the petitioners, made to this court, May 4th, 1837, commisioners of estimate and assessment had been appointed, who reported at the special term, in March last, when the petitioners moved this court that the report be confirmed.

<p>A sheriff’s return of milla tona will not be set aside as false, where the evidence produced on a motion for that purpose is contradictory in reference to the value of the property of the person against whom the execution issues over and above former liens. Indeed, it seems, that in no ease will the return of a sheriff upon process be set aside as false upon affidavits, except where fraud or collusion is shown.</p>

In this case to a common law certiorari directed to the judges of Westchester county, the judges returned that the commissioners of the town of Bedford, (the parties prosecuting in the certiorari,) on an application to them for that purpose had refused to lay out a certain road; that on such refusal an appeal was made to three of the judges of the court of common pleas of the county, a majority of whom reversed the decision of the commissioners, and laid out the road…

The plaintiff sued out a writ in the nature of a writ of error tor am nobis, to reverse a judgment rendered against him by default, and which was docketed 6th January, 1837. The writ of error was filed in the office of one of the clerks of this court on the sixth day of May, 1839. The plaintiff assigned as error in fact, infancy at the time of the rendition of the judgment.

<p>Motion by the defendant that Nathan Randall pay the costs of this action, on the ground that he was the assignee of the demand for the recovery of which the suit was prosecuted, judgment having been rendered for the defendant for costs amounting to $518.91. The action was brought by the plaintiff against the defendant as sheriff of Chenango, to recover a penalty of $250, for making deliverance in an action of replevin after a claim of property, without first trying the right. The cause was tried in May, 1834, and a verdict found for the plaintiff for the penalty. The circuit judge refused a new trial, and judgment for the plaintiff was perfected on the verdict. The case then came before this court on appeal from the circuit judge, and a new trial was ordered at May term, 1837. The cause was afterwards three times noticed for trial, but not tried, and in June, 1839, the defendant obtained a judgment as in case of nonsuit.</p> <p>On the 7th February, 1837, after the case had been argued hi this court and before the decision, the plaintiff made an assignment of the claim to Randall by a writing, which, after entitling the suit, was as follows : H Verdict for $250 in May, 1834, for plaintiff, case made by defendant, and deeded by Judge Monell in favor of the plaintiff—carried to supreme court by defendant—yet undecided. In consideration of the sum of two hundred and fifty dollars to me paid by Nathan Randall, I hereby assign and transfer to him all my right, claim or interest in the above verdict and judgment. .February 7, 1837. Albert Miller.”</p> <p>Miller was indebted to Randall, and had been called on to pay or give security. Randall had also endorsed a note for Miller, which he afterwards had to pay. The assignment was made by way of security, the avails, if any, to be applied to Miller’s debt and the liability of Randall as endorser. It was understood at the time that Randall was to have nothing to do with the further prosecution of the suit, and that he was not in any way to be liable for costs. Randall did not in fact take any part whatever in the subsequent prosecution of the suit; but on the contrary, when the plaintiff’s attorney called on him for that purpose, (the plaintiff himself being absent) he refused to take any charge or have any thing to do with the suit.</p> <p>On one occasion the circuit judge refused to try the cause on the ground that Randall, who was his relative, was assignee of the claim. The defendant’s attorney wrote a letter to Randall mentioning this fact, and enquiring how they should get the cause tried, and asking on what terms R. would settle the suit. In January, 1838, Randall wrote an answer, saying if the judge would not try the suit, he was willing to change the venue to another connty, though his interest was such that the judge might try it. He added, that he should be a loser by Miller if he got the whole, but he would assign or cancel the judgment, if he had the power to do so, for $200. This was the only thing that Randall ever did in relation to the prosecution of the suit.</p>

On a motion to set aside an inquest taken at the circuit, where the default of the defendant was satisfactorily excused, it was shown on the part of the plaintiff that the defence relied on by the defendant was usury, in the making of the note the foundation of the action, and it was insisted that in addition to the usual terms of relief, the defendant should be required to relinquish the defence of usury.

This was an action of ejectment for dower, in which the plaintiff claimed to recover several distinct parcels of land. The defendants admitted her right to recover two of the parcels described in the declaration, but denied her right as to the residue. They therefore applied to the court for leave to surrender the two parcels, and that as to those all further proceedings be stayed.

<p>C. P. Kirkland, for the defendant, moved to set aside the report of commissioners in partition, on the ground that they had improperly made partition between the parties, who were tenants in common, in equal moieties, of a woollen factory, a house, barn, and twenty acres of land. He read affidavits tending to show that the premises were so circumstanced, as not to admit of a just and equal partition, and that they should therefore have been sold. But, if otherwise, that the commissioners in making partition had mistook the character of several articles of machinery belonging to the mill, considering them as personal property, whereas they should have been regarded as real estate, and had in effect, therefore, passed to the plaintiff, to whom the mill and' its appurtenances were awarded and set off in severalty, with six acres of land and one-half the barn ; the residue, including the dwelling-house, being set off to the defendant. The affidavits tended to show other inequalities, and fifteen affidavits were produced in which the deponents expressed their general opinion that the premises could not be divided without great prejudice to the owners.</p> <p>The partition was made while the defendant was absent, he being a resident of the state of Missouri, whence he had returned to this state to attend an auction of the premises in question, under the impression that the commissioners would report in favor of a sale. Before proceeding to Missouri, he appointed an attorney to take charge of the suit. One of the commissioners, Mr. Goodrich, made affidavit that separating, from the premises the loose machinery as being personal property, the commissioners concluded that partition of the residue, which alone they considered real property, could be made without prejudice ; otherwise not Mr. Smith, another of the commissionere, made oath, that those parts of the machinery which were thus separated, consisted of two double carding machines, a picking machine, shearing machine, spinning machine, looms, fyc.; and concurred, that if they were not to be considered personal property, the commissioners would have been under the necessity of reporting the premises so situated that a partition could not be made. These machines, according to the defendant’s affidavit, had been used and passed from one owner of the factory to another as parts of the factory, for eleven years or more, the same as if they had been actually annexed; and he expressed his opinion that they were parts of the factory.</p>

Mandamus. By the return to the alternative writ, it appeared that James Griffin recovered a judgment against the relator before a justice of the peace, on the twelfth day of March, 1839, from which the relator had attempted an appeal to the C. P. When the cause came on for trial in the C. P., Griffin objected that the court had no jurisdiction, and on referring to the affidavit and appeal bond it appeared those papers recited a judgment as rendered by the justice on the…

Mandamus. Abraham Ackerman and another brought an action of assumpsit against the relator in the superior court of New-York, in which there was a report of referees in favor of the plaintiffs, which the court, on motion, refused to set aside, and rendered judgment for the plaintiffs. The relator sued on* a writ of error, andjhe court below settled a state of facts to be inserted in the record, with a view to the questions of law, which the relator desired to review on error.

Cross-motions for retaxation of costs, in ejectment. On the trial the jury found a verdict for the plaintiffs, Guy, George T. and Mary Iiinman-, for an undivided quarter of the premises, for the plaintiff Cdtlih 'fóv an undivided half of-the premises, and as to the plaintiff Beardslee,-wh.o claimed the remaining quarter, the jury‘found a verdict for the defendant.

This action was commenced in 1824, in theNew-York, C. P., and after declaration was removed into this court by certiorari. The action was brought to recover moneys w'hich, as was alleged, the defendant had collected for the testator in the Havana. The declaration contained counts upon promises to the testator only. The cause having been referred, was heard by the referees in September and October last, and a report was made for the plaintiffs for $1,200.36.

Replevin. The declaration contained two counts. The defendant pleaded to both counts, 1, noncepit, and 2, property in a stranger $ and then, as to each count, he made cognizance as bailiff of E. A. Wetmore, and acknowledged .the taking asa distress for rent in arrear, in the usual form..

<p>In replevin, the bond to the sheriff must be executed by tico sureties. Where there is but one surety, the defendant may move to set aside the proceedings, and is not bound to except. The plaintiff, however, on payment of costs, will be allowed to amend, by filing a new bond with sureties, and the sureties justifying.</p>

<p>In an action commenced by atlaelmennt against a foreign corporation, for the recovery of bills or bank notes issued by it, the plaintiff in his bill of costs is entitled to charge for 'copies of the bills or notes produced to the officer issuing the attachment ; also for copies of the same filed with the declaration, where that contains only the money counts ; also for copies of the same inserted in the judgment record, where the judgment is by assessment after a default for not pleading.</p> <p>The plaintiff is not entitled to charge for copies of the notes or bills voluntarily served with the declaration ; nor for copies of the same inserted in the circuit roll where there is a defence, or in the judgment roll, where there is a verdict.</p> <p>It seems that it is necessary to insert copies of the bills or notes m the circuit roll only where the plaintiff includes several different parties, as dt-awer or maker and endorser, in the samé action.</p>

The defendant was arrested previous to the last July term oil a capias on which bail was required, and committed to prison for the want of bail. He employed an attorney to defend the action, who gave notice of retainer to the plaintiff’s attorney. In October term the defendant’s attorney was served with a copy of the declaration, but no copy was delivered to the defendant in person, or to the sheriff or keeper of the jail and on that ground,

Motion by defendants to set aside default for not joining in demurrer, and subsequent proceedings. The defendants pleaded several special pleas, to which the plaintiffs demurred. The defendants thereupon served amended pleas without an affidavit by the attorney, as required by the 23d Rule. Both attorneys iesided in Buffalo. The plaintiffs’ attorney kept the pleas over 20 days, and then entered the defendant’s .default for not joining in demurrer.

Death of parties. The defendant demurred to the declaration, and the plaintiffs joined in demurrer in 1838. In July term, 1839, the cause was submitted to the court for decision, and in October term following, judgment was rendered for the plaintiffs on the demurrer, with leave to the defendant to amend on payment of costs. In July term, but whether before or after the cause was submitted for decision is left uncertain by the affidavits, the defendant died.

<p>A plaintiff suing in forma pauperis, is not liable to costs for not proceeding to trial pursuant to notice; nor is he, it seems, liable to costs under any circumstances, until he is dispaupered. The order allowing him to sue asa poor person will be annulled on motion, upon cause shown, and then he will be liable to costs in the same manner as though the order had never been made.</p>

Motion by defendant to set aside default and subsequent proceedings. The plaintiffs commenced a suit by the filing and service of a declaration, against Fisk as the maker, and Bullock as the endorser of a promissory note, but the declaration was only served on Bullock. He appeared in due time and put in a plea of the genera] issue, which was entitled and pleaded in the same form as though he had been sued alone, without saying impleaded with, fyc.

<p>'The service of a declaration on a defendant in a salt commenced by the filing and service of a declaration, is not a violation of the statute, forbidding the service of civil process on an elector during the time appointed for the election of state and county officers.</p>

The action is ejectment for the recovery of a portion of a large tract of land originally sold by Robert Bowne, the ancestor of the plaintiffs, to Thomas R. Gold, who executed the mortgage to secure the consideration money. Gold sold to one Marvel Ellis subject to the mortgage.

<p>Where an attorney has not an agent at the places required by the rules for the receipt of papers, and a paper is put into the post-office directed to him, the day the paper is mailed, and not when it is received, is the day of service.</p>

<p>In street cases, it is a matter of course to grant a certiorari, after confirmation oft report of the commissioners of estimate and assessment, where the object of t party is to remove the proceedings into the court for the correction of errors.</p>

In the improving of this street, a piece of ground was taken, which the commissioners of estimate and assessment in their report, stated to belong to the estate of John Vark deceased, and that in consequence of the taking of such ground, they had allowed as damage, the sum of $8,600 to the estate of John Vark deceased; which sum has since been paid into court.