Volume 21 — Wendell's New York Reports

Error from the Tompkins C. P. The plaintiff held a mortgage of personal property executed to him by a person of the name of Grose, the property remained in the possession of Grose, an$ was seised by virtue of an attachment sued out by the defendant against his property. The plaintiff brought an action of trover against the defendant who justified under the attachment. It appeared that the affidavit upon which the attachment issued was radically defective.

This was an action of assumpsit tried at the Wayne circuit before the Hon. Daniel Moselet, one of the circuit judges. The defendant was sued as the endorser of a promissory note made by one James Young, for the sum of $560, dated 20th April, 1835, payable at the Chemung Canal Bank at Elmira, eighteen months after date, with interest after six months from date.

Error from the superior court of the city of New-York. This was an action of trover, for fourteen rollers for printing calicoes, brought by Bryce & Rennie against Brooks. In the autumn of 1833, Brooks, at the request, i;t seems, of Bryce & Rennie, sent two distinct orders to a correspondent in Manchester, England, to have a quantity of rollers prepared and engraved1 and forwarded to him in New-York, with all possible dispatch.

Error from the Chemung common pleas. Herman Bunts sued Rhodes and Rider in an action of replevin for taking and detaining a cow. The defendants pleaded severally non cepit and property in one Conrad Bunts, by virtue of an attachment against whom, the cow was taken.— The plaintiff took issue upon the pleas of property.

Demurrer, to a return to a writ of alternative mandamus. The writ of mandamus recited that John M. Mott had recovered a judgment against the relators before a justice of the peace, that the relators had removed the cause by appeal into the court of C. P. of Oneida county, where it was referred to three referees pursuant to the statute, that the referees reported that nothing was due to the plaintiff, and that the court on the motion of the plaintiff, set aside the report to…

Libel. The declaration in this case is substantially the same as in William White v. Delavan, IT Wendell, 49. The defendant put in two pleas of justification, to which the plaintiff demurred. It was admitted on the argument that the pleas were bad, but it was insisted that the defendant was notwithstanding entitled to judgment inasmuch as the declaration was radically defective.

Error from the Cayuga common pleas. Cook & Maxwell let a horse to hire to go on a journey, to Howe, who so improperly drove the horse that he died; whereupon an action was brought against Howe. The first and second counts of the declaration were in assumpsit, and the third in trover.

In this case certain property was seized under an attachment issued against- the property of John Galloway the younger, as a non-resident debtor ; a certiorari was sued out to the officer who issued the process, and on the coming in of the return to the same the following facts appeared : On 1st February, 1824, an indenture of lease was executed by E. M. Johnson and Maria his wife to Jchn Galloway, then of Brooklyn, demising certain premises for the term of twenty-one-years,…

Demurrer to replication. This was .an action of trespass de bonis asportatis.

This was an action of ejectment, tried at- the Saratoga circuit in May, 1837, before the Hon. John Willard, one of the circuit judges.

Error from the New York common pleas.- Seixas commenced a suit agáinst Hart, Bush and Young.

<p>A bond executed by an officer to be relieved from arrest on an attachment issued against him for not returning an execution, where the penalty exceeds one hundred dollars, is void, if the attachment was issued without an order fixing the amount in which the party proceeded against should be held to bail.</p> <p>It seems that in a declaration on such bond, it should be averred that the bond was ordered by the court to be delivered to the plaintiffs to be prosecuted ; and that an averment that it was ordered to be delivered up to be prosecuted, without naming the plaintiffs or authorizing them to prosecute, would not be held sufficient on demurrer.</p>

Error from the New York common pleas. This was an action of ejectment brought by Catharine Smith, to recover the dower assigned to her in the estate of her husband, Patrick Smith, deceased. Patrick Smith being an alien, came to reside in this state in 1822. On the 1st August, 1823, he took the incipient steps to become naturalized, by duly declaring his intention to become a citizen.

Error, from the Broome common pleas. Russell commenced a suit by summons against B. & C. Edwards in a justice’s court. After issue joined and the return of a venire sued out at the request of the defendants, the defendants moved for a nonsuit, on the ground that the plaintiff and the justice were cousins, offering to prove the fact should it be denied.

Error from the Tompkins common pleas. Farrington was sued by Baley in a justice’s court, for not paying over to Baley the amount of rent claimed by him, to be due from a defendant in an execution, whose property was sold by Farrington as a constable. Baley obtained a judgment before the justice, and Farrington appealed to the Tompkins common pleas.

<p>Where a cause which has been removed into this court by writ of error, is brought on to argument or submitted, the plaintiff must make up and produce error boohs, or the writ of error will be dismissed; it is not enough that a copy of the judgment roll in the court below and a bill of exceptions be presented.</p>

Error from the Onondaga common pleas. Brackett sued Watkins in an action of replevin, for taking 30 runs of woollen yarn. The plaintiff proved that he was a householder, and that in March, 1837, the yarn was taken from his possession by virtue of an execution in favor of the defendant, and by his direction. In March, 1836, the plain tiff purchased 300 sheep, which he sheared, and sold the whole of the wool except one large fleece of about 4 pounds.

Demurrer to declaration. The plaintiff declared in slander, for that the defendant in a discourse had with the plaintiff in the presence and hearing of divers citizens, uttered these words, “ You will steal and I can prove it,” adding, “ thereby, meaning and intending to have it understood and “ believed by those citizens last aforesaid, that the said plain- “ tiff had been guilty of stealing, or larceny.” There was a second count charging the words to have been spoken of…

This was an action of trover, tried at the Clinton circuit in June, 1836, before the Hon. Esek Cowen, then one of the circuit judges. The plaintiff and defendant were tenants in common of a sloop called the General Warren, navigated on Lake Champlain, and employed in the transportation of lumber from Plattsbvrgh and other ports on the lake to Whitehall; the plaintiff owning one-eighth and the defendant three-eighths of the vessel.

This was an action on the case tried at the Essex circuit, in June, 1835, before the Hon. Eseic Cgiven, then one of the circuit judges. The suit was brought for the seduction of a daughter of the plaintiff, of the age of about seventeen, whilst she was a member of the family of her father. She became a mother in April, 1835, and this suit was commenced on the thirteenth day of September preceding, after she became pregnant.

This was an action of replevin tried at the Yates circuit in June, 1838, before the Hon. Daniel Moseley, one of the circuit judges. The plaintiffs declared for the taking and detaining of 75 barrels of wheat flour. The defendant pleaded non cepit and property in himself. On the trial the following facts appeared : Charles Hubbard owned a flouring and custom mill on the outlet of the Crooked lake.

Error from the Monroe general sessions. The prisoner was indicted for that he, on, &c. at, &c. a cow, the property of &c. by a certain ill-disposed person to the jurors aforesaid [i. e. the grand jurors] known as Deman Boyce then lately before feloniously stolen, of the same ill-disposed person feloniously did receive, well knowing the same to have been feloniously stolen.

Demurrer to declaration. The plaintiffs declared upon a bail bond executed by the defendants to relieve Viele, one of the defendants, from an arrest on a copias ad respondendum.

Error from thetsuperior court of the city of New. York. This was an action of assumpsit by Mills and Hooker against Hanna.

This was an action of debt, tried at the Saratoga circuit, in December, 1837, before' the Hon. John Willard, one of the circuit judges.

This was an action of ejectment,, tried at the Clinton circuit in January, 1838, before the Hon. John Willard, one of the circuit judges. The plaintiff on the 11th March, 1829, obtained a judgment against Joseph Bindon, for $526 63, which was revived by scire facias against the defendants in. this suit, alleging them to be devisees of the defendant in the original judgr ment. The judgment roll on the scire facias being docketed 15th November, 1833.

Question of parties. In contemplation of obtaining an act of incorporation of a literary association to be called the De Ruyter Institute, in the county of Madison, a meeting was held of persons called the directors of the institute on the 15th October, 1835, at which a committee was appointed to superintend the erection of an edifice for the purposes of the institute, consisting of Henry Crandell, Perry Bur-dick, L. B. Goodwin, E. D. Jenlcs, and Ira Spencer.

<p>This was an action of assumpsit tried at the Albany circuit in October, 1838, before the Hon. John P. Cushman, one of the circuit judges.</p> <p>The plaintiff claimed to recover against the defendant as the endorser of a promissory note, dated 13th March, 1832, for $1000, made by one J. Jackson, which had been negotiated by S. Dutcher to the plaintiff. The defence set up to a recovery was, that the note for $1900" had been received by Dutcher, to enable him among other, things to .take up a note for $763, which it was alleged on the part of the defendant was usurious, and that the note for $1000 had been negotiated to the plaintiff, under such circumstances that the defence of usury was available against him.. In proof of the usury, it was shown that Dutcher having lent $250 to Jackson, the latter brought to him the note for $763, drawn by one Holdridge, payable to Jackson', endorsed by him and a firm of livery stable keepers, and desired Dutcher to procure the same to be discounted. Dutcher took the note to a bmk, and was there told if he would endorse it, it would be discounted ; he accordingly endorsed it and received the avails, Avhich he applied by appropriating, $2'50, to refund, himself for the money lent Jackson, $30 for his endorsement and the trouble he had in the matter, and the residue he paid to Jackson. His own account of the affair is—“ I took out $250 which belonged to me, then I took $30 for my trouble and for endorsing—I do not endorse for nothing.” And again, “ I told Jackson I charged $10 for going to Norton (the president of the bank) to get the note discounted, $10 for having used my name upon the note and $10 for the bother I had about the $250, and he took the balance contentedly.” There was evidence given on the part of the defendant, for the purpose of showing that the note for $1000 had been diverted in its appropriation by Jackson from the purpose for which it was made, the defendant being a mere accommodation endorser, and that the plaintiff was not a bona fide holder. The judge submitted the questions of whether there was usury in the transaction, whether there had been a misappropriation of the note, and whether the plaintiff was a bona fide holder, to the jury, who found a verdict in favor of the plaintiff, for $1444 and 83 cents. The defendant asks for a new trial.</p>

Release of parties. The plaintiff declared in assumpsit on the money counts against Richard Raynor, Willett Ray-nor and Josiah Wright, attaching to the declaration a copy of a promissory note, with notice that the same would be given in evidence under the money counts according to the statute.

<p>A nonsuit granted after evidence given on hath sides, will not be set aside for that cause alone.</p>

Error from the Albany mayor’s court. Brown brought an action of debt against Buckbee for $61 70, the dockage and wharfage of a sloop of which the defendant was the owner and master, claimed by the plaintiff as dock master of the port of Albany.

Error from the Onondaga common pleas. Bennett sued Earll in trover, for the conversion of certain personal property. The plaintiff’s claim was founded upon a mortgage •executed to him on the twenty-fourth day of August, 1836, to secure the payment of a sum of money on the first day of September ensuing the date of the mortgage.

This was an action of assumpsit, tried at the Herkimer circuit in May, 1838, before the Hon. John Willard, one of the circuit judges. The action was against the defendants as endorsers of a prbmissory note.

Demurrer to declaration. This was an action on covenants of warranty and for quiet enjoyment, contained in a deed of land, dated July 7th, 1797, executed by the defendant to John Johnston.

This was an action of ejectment tried at the New York circuit, before the Hon. Ogden Edwards, one of the circuit judges. ' The premises claimed were alleged to have esc heated by' the death of one Thomas Irvin without heirs capable of inheriting. Thomas Irvin, although an alien born, had been duly naturalized, and was a citizen of the United States. He died intestate the 10th May, 1837, seised in fee of the premises in question.

Bemukrek. to declaration. The plaintiff declared in debt on bond dated 4th March, 1836, in the penal sum of ¿1)5000, conditioned for the payment of §2500, in six equal annual instalments, with interest The defendants pleaded L Non estfactum ; and, 2.

This was an action of assumpsit for wheat sold and delivered in October, 1834. The cause was referred, and at the hearing before the referees the plaintiff made out a prima facie case by proving a delivery of the wheat at the store house of De Mott, Ingersoll dp Co., of which firm the defendants were members. The defendants called as a witness Halsey Sandford, who was a member of the firm of De Mott, Ingersoll dp Co., which was dissolved in 1835.

Demurrer to declaration. The plaintiffs declared against the defendant Elizabeth Brinckerhoff, that by a certain agreement made in writing between the plaintiffs and the -defendant, on, &c., at, ,&c. it was stipulated, that if the plaintiffs should locate their road on Water street, terminating at the square at the lower, end of Genesee street in Utica, and should require for the purposes of their ,road certain lands in the vicinity of such.square (particularly describing…

This was an action of ejectment, tried at the Delaware •circuit in May, 1838, before the Hon. John P. Cushman, one of the circuit judges. The plaintiff claimed under a deed to him from Levi Buck and his wife, dated March 29, 1830. The defence ■jyas, that Buck, at the time the deed was given, was incompetent to contract on the ground of idiocy or insanity.

<p>Damages in replevin. The defendant in an action of eplevin brought by the plaintiffs for about 200 saw-logs, obtained judgment for a return of the property, and sued out a writ of inquiry of damages, &c. ■ The logs measured 63,582 feet, board measure, and cost the defendant $3 25 per 1000 feet, delivered on the canal near his 'saw-mills in Royalton, Niagara county, where they were replevied by the plaintiffs in the summer of 1832. The writ of inquiry was executed in January, 1838. The defendant proved that his principal business was the sawing of logs, and transporting the stuff-to market; that he might, have sawed the logs, taken by the plaintiffs under the writ of replevin, in the summer of 1832 ; that those being taken away, he had an inadequate sqpply for his mills,; and that it was difficult to supply the deficiency before the ensuing winter. He also proved what would have been the value of the stuff, made from the logs taken by the plaintiffs, in the Albany and Troy markets in the summer.of 1833, (at which time it would, in the ordinary course of business, have reached those places, and at which places the defendant usually dealt,) deducting from such estimate the cost of preparing the lumber for and transporting it to market. The defendant also proved that the logs in question were sawed by the plaintiffs: All which evidence was objected to by the plaintiffs as inadmissible, on the ground that the proper measure of damages was the difference between the value of the logs at the time of the deliverance, and what would have been their value at the present time, with interest from the time of deliverance ; but the objection was overruled, and the testimony received. By the inquisition, it appears the plaintiff’s damages were assessed at $452.</p>

This was an action of ejectment tried at the Wayne circuit in April, 1838, before the Hon. Daniel Mosely, one of the circuit judges.

Demurrers to replications. The plaintiff declared in trespass, assault and battery, against three defendants, viz. Must, Winton and Stewart. The defendant Rust pleaded, ].. the general issue, and 2, specially, .that long before and at the said time when, The plaintiff, by leave of the court, put in four replications to this plea. First, not necessary to be noticed. Second.

This was an action on the case, tried at the Oneida circuit, in May, 1838, before the Hon. Robert Monele, one of the circuit judges. The defendants were sued as common carriers and charged with the non-delivery of a box of merchandize entrusted to them in December, 1835, at Batavia, for carriage to Utica. The declaration stated that they were common carriers of goods and chattels from Batavia to Utica.

This was an action 'of ejectment for dower, tried at the Tompkins circuit, in September, 1837, before the Hon. Robert Monell, one of the circuit judges. The' plaintiff, to prove her right to recover, produced a commission sued out to Illinois, and the testimony token under it, which was received by the judge, although objected to by the defendant as inadmissible.

Contracts in restraint of trade. The plaintiff declared on a bond dated 9th July, 1835, in the penal sum of $25,000, executed to the plaintiff by the defendant; which, after reciting that the defendant had been engaged in running a line of packet boats upon the Erie canal, that he had on the day of the date of the''bond sold his boats and othei* property connected with them to the Rochester and Buffalo Packet Boat Company., for the consideration of $12,500, and that ' he had…

Demurrer to declaration. The plaintiff declared in debt on bond, in the penal sum of $2000, dated August 17, 1836, conditioned that the defendant should keep himself at .all times entirely free and out of the business of manufacturing pot or pearl ashes or soap, or any art, trade or occupation requiring ashes or the consumption of ashes, &c. for ■the term of ten years, and within forty miles of the village of Lockport.

This was an action of trover, tried at the Montgomery circuit in May, 1838, before the Hon. John Willard, one of the circuit judges. The suit was brought for the taking by the defendants of a yoke of oxen and other properly, purchased by the plaintiff at a sale of ihe property of one B. Whitcomb, on the eighth day of August, 1837.

This was an action of assumpsit, tried at the Herkimer circuit, in November, 1837, before the Hon. John Willard, one of the circuit judges. The suit was brought to recover back money paid under the following circumstances: On ■. 27th April, 1829, the plaintiff John D. Pethe signed a note as surety for Adam Petrie, payable to John Graves or bearer, for the sum of $554 95.

Error from the superior court of the -city of New York. The action below was brought by Coddington aginst Yale and Henshaw. In addition to the general indebitatus counts in assumpsit, the declaration contained several counts on a special contract, by which the plaintiff sold certain goods to the defendants, to be paid for on delivery by their note at four months.

This was an action of trover, tried at the Yates circuit, in June, 18.38, before the Hon. Daniel Moseley, one of the circuit judges. The suit was brought for the taking of a horse.

Error from the mayor’s court of the city of Troy. The plaintiff declared on the common money counts, and in pursuance of an order for that purpose, furnished a bill of particulars, in these'words : .“-you will please to take notice that the nine promissory notes, commonly called bank notes, of which the following are copies, constitute the particulars of the plaintiff’s demand for which the above suit is brought.

This was an action on the case, for negligently running down the plaintiff’s scow, tried at the Onondaga circuit, in April, 1836, before the Hon, Daniel Moseley, one of the circuit judges. The plaintiff’s scow lay at a dock or wharf in the Oswego river, at the village of Oswego, with the stern projecting westward beyond the end of the wharf from 8 to 16 feet into the river, at a place where the channel was narrow, and only from 50 to 70 feet wide.

This was an action on the case against the defendant as a common carrier, for the loss of 154 barrels of oysters shipped at Buffalo, to be transported across Lake Erie to Detroit, tried at the Albany circuit, before the Hon. John P. Cushman, one of the circuit Judges. The oysters were shipped in the month of November, 1835, on board the steamboat Columbus, belonging to the defendants.

Demurrer'to declaration. The plaintiffs Gerrit Smith, James Cochran and Catharine V. R. Cochran, declared against the defendants for that on the 21st March, 1836, at, The defendant Tallcott appeared alone and demurred to the first count of the declaration, assigning as special causes of demurrer, the following: 1st. The agreement signed by Mr. & Mrs. Cochran, has never been executed by Gerrit Smith. 2d. Gerrit Smith is not a party to the agreement signed by the defendants,…

Demurrer to replications. The plaintiffs declared in replevin, for that the defendant on, &c., at, &c., did unjustly take and detain a canal boat, together with her apparel and furniture, goods and chattels which the plaintiffs were then and there entitled to the possession of, of great value, <&c. The third plea of the defendant was actio non, &c., because the said goods and chattels, at the said time, when, &c., were the property of Heman Ward and Mahlen Kings-man jointly,…

This Was an action of nSsúmpsit, tried at the Chautauqua circuit in. July, 1837, before the Eton. Addison Gardiner, then one of the circuit judges. The suit was brought on a check drawn by thé defendant) in July, 1836, on the Commercial Bank of Buffalo, for $2002, payable to the order of John Z. Saxton, and endorsed by. him and five other persons.

This was an action of trespass, tried in October, 1837, before the Hon. John Willard, one of the circuit judges. The action was brought for the taking of a span of horses, a waggon and sleigh, purchased by the plaintiff at a public auction held by one Jacob Settle, jun. on the first February, 1836.

, Escape ; bond for the liberties ; old and new sheriff. The plaintiff, as late sheriff of the county of Broome, declared against the defendants on a bond for the limits, in the penal sum of $200, bearing date 4th March, 1831.

This was an action of ejectment, tried at the Niagara circuit in April, 1837, before the Hon, Addison Gardner, then one of the circuit judges. On the 29th February, 1836, the parties entered into articles of agreement under seal, for the sale, and purchase of 106 acres of land.

Information in the nature of a quo warranta. Held: it is by virtue .of the force of the common law, as those statutes are wholly silent as to any forfeiture incident to the breach of any condition. It is therefore a condition implied by the common law..

Error from the Washington C. P. King sued Dunn in the court below for breaking and entering his close, situate in the town of Argyle, and cutting and carrying away trees. The declaration contained two counts. The first count set out the boundaries of the close as follows : “bounded on the west by lands owned or possessed by James Shannon, on the south by lands, &c.”—giving the name of the owner or occupant on each of the four sides.

Demurrer to declaration, &c. The plaintiffs declared in assumpsit, than on 22d July, 1833, the defendants for the consideration of $587 60 paid to them, sold and transferred to the plaintiffs a note made by one Daniel Simmons, dated 15th December, 1832, for 582 39, payable six months after date to the order of the defendants ; and that the defendants agreed in case the plaintiffs could not set-off the note in payment of any balance that might be due from them to Simmons on…

PRócEEDíNGS-againsí ships and vessels. A vessel called The Tompkins of Tioga, had been seized under a warrant issued upon the application of the plaintiff by a supreme court commissioner, by virtue of the act authorizing proceedings for the collection of demands against ships and vessels, 2 R. S. 492.

<p>Demurrer, to replication. The plaintiff declared in covenarlt on an obligation executed by Baker, for the faithful performance of his duties as one of the constables of the city of Albany; Staats, the other defendant, signed the ' obligation ¡as the surety of Baker. The plaintiff alleged that on the 14th September, 1836, he delivered to Baker an execution issued from a justice’s court in . his favor against one William Wright, for $50 64-damages and costs, to be duly executed. The execution was returnable in 90 days, and before the return day, Baker collected the money, but neglected to bring it into court. The defendants pleaded that the money collected by Baker, was made by the sale of certain property,- for the selling of which an action of trover was brought against him by one Margaret Gaylor, on the 16th September, 1836, in which action Mrs. Gaylor subsequently in May term, 1837, recovered a judgment for $156 53 damages and costs; that on the trial of such cause the present plaintiff appeared and defended, that the question litigated was, whether the property belonged to Wright or to Mrs. Gaylor, and that the jury found in favor of Mrs. Gaylor. In addition to which the defendants averred that the property did in fact belong to Mrs. Gaylor. To this’plea the plaintiff replied, that on delivery of the execution against Wright to Baker, he with a sufficient surety, executed a bond of indemnity to Baker, to save him harmless, &c., and that thereupon, Baker sold the property and made the amount of the execution. The plaintiff further averred that after the judgment against Baker, in favor of Mrs. Gaylor, to wit, in July term, 1837, Baker commenced a suit upon the bond of indemnity, which is still pending. This suit was commenced in July term, 1838, The defendants demurred to the replication.</p>

This was an action of ejectment, tried at the Chemung circuit in October, 1837, before the Hon. Robert Monell, one of the circuit judges. The plaintiffs were Michael Beardslee, Phineas Catlin, Guy Hinman, George T. Hinman and Mary Hinman.

Bond on suing out an attachment. The plaintiff declared on a bond executed by the defendants, which after reciting that Gardner had applied to a justice of the peace for an attachment against Ball, was conditioned that Gardner would pay to Ball all damages and costs which he might sustain by reason of the issuing of such attachment if Gardner should fail to recover judgment thereon ; and in the event of such judgment being recovered, that he should pay to Ball all moneys…

Demurrer to plea. The plaintiffs declared on subscriptions for stock made by the defendant. The plaintiffs are an incorporated company. The defendant subscribed for 21 shares of $100 each, upon which stock, calls were made to the amount of ninety per cent, and for the non-payment of which, upon the shares owned by the defendant, this action was brought.

Error from the Onondaga common pleas. Coonley sued Anderson in the court below, for the non-delivery of a quantity of barley, agreed to be sold at a certain price. On the trial of the cause, it appeared that the contract for the sale and purchase of the barley was made between Anderson and one W. S. Worthington, who was the agent of Coonley, to contract for the purchase of barley; and that the barley was not delivered pursuant to the contract.

Error from the Allegany common pleas. This was an action on the case for a malicious'prosecution, brought by Morris against Scott, for maliciously, and without probable cause, making complaint to a magistrate against Morris, for aiding and assisting'in the removal of the property of a third person, for the purpose of defrauding the creditors of such person, suing out a warrant for his arrest, causing him to be arrested and brought before the magistrate, and subsequently…

<p>Error from the Montgomery common pleas. This was an action on the case brought in a justice’s court by Piper against Manny as an innkeeper, for the loss of a quantity of butter. The servant of the plaintiff put up for the night at the house of the defendant ; he had a sleigh load of butter, and inquired of the hostler if there was a barn in which the load could be placed, who answered that it was as safe in the yard as under lock and key. The yard was an open unenclosed space, within 16 or 18 yards of the centre of the travel-led part of the highway, on the opposite of the highway from where the defendant’s house was situate. The load was placed near an open shed, where the hostler directed it should be placed. The defendant was told in the evening that there was butter in the load'. In the morning a tub of butter was missing. The cause was tried in the justice’s court by a jury, who found a verdict for the.plaintiff for $24 50. The common pleas of Montgomery, on a certiorari sued out by the defendant, reversed the justice’s judgment, assigning as a reason for their judgment that the defendant was not liable as an innkeeper for the lost butter, because the butter was not brought within the inn, nor was it received into Manny's possession or keeping, but was left by Piper’s agent in the highway ; and because Manny or his servant was not guilty of any negligence that would render him liable for the butter. The plaintiff sued out a writ of error.</p>

Demurrer to declaration. The plaintiff declared that £he defendant, being the holder of a promissory note made by W, &.

Error from the, Washington common pleas. Campbell sued Sherrill as sheriff of the county of Washington, for the escape of one Abram Rowan an imprisoned debtor. The suit Was brought in a justice’s cotirt, where judgment Was rendered for the plaintiff.

<p>This was an action on the case, tried at the Montgomery circuit in May, 1837, before the Hon. John Willard one of the circuit judges.</p> <p>The suit was brought for the flowing of lands of the plaintiff, and obstructing the operations of a mill owned by him, by means of a dam erected by the defendant across a stream upon which the mill of the plaintiff is situate. The plaintiff James Burr, showed title to one portion of the premises, part of which was overflowed, under a deed executed to him by Nathaniel Burr, bearing date 27th April, 1801; and to another portion, part of which was also overflowed, under a deed executed to him by Nathan Burr, bearing date 10th March, 1809, containing the following reservation: “ Reserving, however, out of the premises above conveyed a right of flouring such part of the said premises as may be necessary for a mill pond at or near the plape where the old mill stood, by erecting a dam at or near the old dams for the benefit of mills; if erected, the water not to be raised more than to be as high as a large rock in the old pond or creek.” The mill of the plaintiff was erected about the year 1823, on the premises conveyed to'him by Nathan Burr. In 1835 the father of the defendant erected a mill and dam on the same stream on which the plaintiff’s mill was situate, below the plaintiff's mill, which dam raised the water in the stream and set it back upon the wheels of the plaintiff’s mill, so as entirely to render the mill useless, and also overflowed about three-fourths of an acre, a portion of the premises conveyed to the plaintiff by Nathaniel Burr, and rendered it useless. The father of the defendant died in 1836, and the defendant succeeded him as his heir at law, in the possession of the mill built in 1835. On this evidence and proof of the damage sustained, the plaintiff rested. The defendant then gave in evidence a deed from Nathaniel Burr to Nathan Burr, bearing date 27 th April, 1801, conveying certain prerhises, including the premises subsequently conveyed by Nathan Burr to the plaintiff, containing the following proviso: “ provided, nevertheless, that nothing above mentioned shall be so construed as to injure the privileges heretofore enjoyed with regard to raising water for the benefit of my saw mill where it now stands or others if erected at or near the same place.” In 1824 Nathaniel Burr died, having previously by his last will and testament devised to four grandchildren in fee, the east half of the mill lot, as commonly called, together with all the rights appurtenant to the same mill, privileges, Spc., which title thus devised, subsequently to wit, in 1835, became vested in the father of the defendant. It was admitted that at the time of the conveyance from Nathaniel Burr to Nathan Burr, to wit, in 1801, Nathaniel Burr had a saw mill and dam on the premises devised by him to his grandchildren, near where the defendant’s mill and dam now are,; that the same was carried off by a freshet in 1804; that Nathaniel Burr made preparations to rebuild the same before his death ; that after his death, and when the plaintiff was about building his mill, the plaintiff said that the right to build the dam belonged to the devisees of Nathaniel Burr, but that they would never agree and" build the dam. The judge ruled that the defendant had not shown title to erect and keep up the dam and to overflow any part of the lands of the plaintiff; and the jury under his direction found a verdict for the plaintiff. The defendant moves for a new trial.</p>

This was an action of assumpsit, tried at the Rensselaer circuit, in October, 1835, before the Hon. James Vanderpoel, then one of the circuit judges. The plaintiffs were incorporated in April, 1831, with-power to make and construct a turnpike road from the city of Troy to Bennington or Pownal, in the state of Vermont; and also to make and construct a single or double rail road from Troy to either of the said towns.

Error from the Onondaga common pleas. Russell brought an action of replevin in the delinet, against the defendant Jefferson Butterfield, and on the trial the following facts appeared: on the 23d March, 1835, Russell sold a horse, waggon and .harness to George W. Butterfield, for the sum of .$90, and to secure the payment thereof, took a mortgage of the same property, with a defeazance therein expressed, that the same should be void on the payment of $50 on the first day of…

<p>Error from the Delaware C. P. Van Horn sued Oakley in a justice’s court in trespass, for levying upon and selling a saddle for a school tax. Oakley justified as collector of school district No. 10, [Roxbury,] under a warrant regular on its face. The plaintiff claimed to live in the adjoining .district No. 11, the line between which and No. 10 divided his farm. The proof was strong that he resided in No. 11, but there was proof that he resided in No. 10. His residence was within a very few rods of the line. The cause was tried by a jury, who found for the defendant. The common pleas of Delaware, on certiorari, reversed the justice’s judgment. The return to that' court showed enough to make out the defence affirmatively, provided the plaintiff was a resident of No. 10, except that it did-not appear that any evidence was given to show that before the levy the -collector demanded the payment of the tax, according to 1 R. S. 478, § 48, 2d ed., nor on the other hand did it appear that the abscence of such proof was objected to or in any way noticed upon the trial.' On the return of the jury into court before the justice, the plaintiff was present but was not called by the justice, who rendered judgment for the defendant, with $6 42 costs/ Oakley sued out a writ of error.</p>

<p>On an indictment here against a prisoner for having in his possession, with intent to pass, hank notes, purporting to have been issued by a banking corporation of a state other than that of New York, it is not necessary to show that there is in fact such a corporation in existence; at all events, proof of the most general character of its existence is sufficient.</p> <p>Where the direct charge rests for its proof upon the testimony of accomplices, such proof is sufficient to convict, if it be corroborated by the evidence of credible witnesses, although such evidence has only an indirect tendency to establish the commission of the particular offence charged: as where the testimony of the accomplices fixes upon the prisoner the charge of having in his possession counterfeit bills with the intent to pass, and the proof by the unimpeached witnesses shows that the prisoner was possessed of a press and plates used in making counterfeit impressions of bank bills. The confirmation of the accomplices must, however, be of some fact or facts which go to fix the guilt of the accused.</p> <p>A witness called to sustain the character of an impeached witness, testifying that he has known him for a number of years, and that he knows his associates, but is not acquainted with his general character for truth and veracity, will be permitted to testify that he would believe Mm on his oath.</p>

Certiorari tp the Hon. Thomas J. OaJcley, one of the' justices of the superior court of the city of New York, to remove into this 'court, proceedings had before ¿him against John Brown and Hugh Brown, as non-resident debtors.

This was an action for libels published by the defendant, of and concerning the plaintiff and his official conduct as a public officer, tried at the New York circuit in November, 1837, before the Hon. Ogden Edwards, one of the circuit judges. The libels consisted of three letters written by the defendant, addressed to Levi Woodbury, secretary of the treasury of the United States, in the months of June and July, 1836.

Error from the New York common pleas. Merritt, sued the Leo Wolfs for seizing and selling his property under a distress warrant for rent, in which more rent was claimed than was due, and after a tender of the amount actually due. The defendants pleaded non ml.

<p>In pleading a judgment rendered by a justice, it is not necessary for the purpose of showing jurisdiction in the magistrate to allege that a plaint was levied or process issued ; it is enough if facts be averred showing that he had jurisdiction over the persons of the parties and the subject matter of the action.</p> <p>A suit cannot be abated by a plea that another action for the same cause was afterwards commenced ; but a judgment in such second suit, in favor of the plaintiff may be pleaded in bar of a recovery for the same cause of abtion.</p> <p>On demurrér to a plea puis darrien continuance, it cannot be objected that it is not verified by aifidavit, nor that it is accompanied by another plea ; such questions can be raised only on motion.</p>

<p>This was an action of debt, tried at the New York circuit in October, 1S37, before the Hon. Ogden Edwards, one of the circuit judges.</p> <p>In iSeptetnber, 1834, a contract was entered into between the parties, by which the plaintiff engaged to build for the defendants a steam-boat, intended to ply on the Susquehanna river between Owego and Wilkesbarre; the boat to be completed and put in operation by the first day of May, 1835, for which the plaintiff was to be paid the sum of $12,500. The boat was built but not entirely completed, when she was accepted by a committee of the defendants, and proceeded down the river about the seventh day of May; she was accepted on condition that what remained to be done in her completion, should be done, and which was not done until some time in July. On her return to Owego she broke her shafts, which were repaired at the expense of the plaintiff. This delayed her four days, and after she again started for Owego was delayed sixteen days more by reason of the lowness of the water. On her second trip she again broke her shafts, and the defendants, at their own expense, procured-a new set from New York, which cost about $700, The defendants, after they had took possession of the boat, enlarged her wheels and made olher alterations, and proved that the guards were too low, and that the expense of altering them would cost $250. Several witnesses for the defendants proved the iron of the shafts to be bad : in this, however, they were contradicted by the plaintiff’s witnesses. It was proved that a trip between Owego and Wilkesbarre could be performed in four days at a nett profit of $100 per trip, and that the river between those places is navigable only four months in the year. When the plaintiff first rested, the defendants produced in evidence an instrument under seal, bearing date 28th May, 1835, executed by the plaintiff, whereby, for the consideration of $500, the plaintiff assigned to James Pumpelly, one of the defendants in this cause, the contract upon which this suit is brought, and stated therein that he had received and endorsed upon the contract the sum of $7975 34, and that he had directed his attorney to pay over the balance due upon the contract, when collected, to Mr. Pumpelly, after deducting certain charges. On the production of this instrument, the plaintiff read in evidence an instrument of the same date, signed by Pumpelly, whereby he engaged to pay over to the plaintiff all moneys he should receive by virtue of the assignment made to him, deducting such sums and interest thereon as he had that day advanced to the plaintiff. The defendants insisted that the assignment thus executed to Pumpelly, one of the defendants in the cause, was a bar to a recovery. The judge, however, ruled otherwise, and instructed the jury that they should deduct from the amount otherwise due to the plaintiff such sum as would be equal to the expenses necessarily incurred by the defendants in remedying such defects as existed in the boat or its* machinery; but that they were not authorized to take into consideration the delay of the boat, or loss of trips, or loss of profits consequent upon any defect in the boat or machinery in reducing the amount of the plaintiff’s recovery—the damages sustained by the defendants from those causes being too remote and consequential to be allowed in this action, and the remedy of the defendants for any injury sustained from those causes being by action against the plaintiff. The jury found a verdict in favor of the plaintiff for $5240 31, and consequently must have allowed the whole sum of $12,500, with the interest thereof from 1st May, 1835, deducting only the sum admitted by the plaintiff in his assignment to Pumpelly to have been received by him, and a sum of about $100 besides. The defendants asked for a new trial.</p>

This was an action on the case, tried at the Ulster circuit, in May, 1837, before the Hon. Charles H. Ruggles, one of the circuit judges. The suit was brought against the defendant as sheriff of the county of Ulster, for neglect of duty, in not bringing into court the amount of an execution, a fi.fa. put into his hands for collection in favor of the plaintiffs against D. S. Tuthill.

<p>Error from the superior court of the city of New York. " Belknap brought an action on the case in the court below against the company, as common carriers between New York and Philadelphia, for the loss of his baggage, being a trunk and its contents, of the value of $300.. The defendants pleaded not guilty. On the trial before Ch. J. Jones, it appeared that the company had two offices in the city of New York, the one at number 12, and the other at number 14, Washington street. In August, 1833, the plaintiff with his family arrived in the city of New York, in the steam boat from Hartford, Connecticut, between twelve and one o’clock in the day, on their way to Wilmington in the state of Delaware. The plaintiff immediately proceeded to the office (No. 12) of the company, for the purpose of taking passage that afternoon for Philadelphia by the way of Trenton, but was told by Bliven, a clerk and porter in the office, that he could not go that afternoon—that no boat left to go by the way of Trenton until the next morning at six o’clock. The plaintiff, intending to go in the next morning line, asked Bliven if his baggage, consisting of three trunks, would be safe in the office, and Bliven replied that it would—that he would put it under lock and key. The plaintiff requested Bliven to do so, and left the trunks in the office. About three o’clock in the afternoon of the same day the plaintiff returned to the office and found the trunks standing where he had left them, when he complained that they had not been locked up, and Bliven replied that he had been busy, but he would do it immediately. In the evening the plaintiff went again to the office and found two of the trunks where he had left them—neither of them having been locked up—the third trunk was missing. Bliven could give no account of this trunk, but said he supposed it had been taken away by mistake. The plaintiff then took away the two remaining trunks, and afterwards pursued his journey by another line of conveyance. There was a closet in the office where it was usual to lock up baggage. Bliven, who was sworn for the defendants, had no recollection of having seen the plaintiff until in the evening, when it was discovered that one of the trunks was lost. He said they were in the habit of locking up baggage in the lock up room whenever any body requested it; that he always considered himself bound to do so when requested; that both deck and cabin passengers were in the habit of putting their baggage in that office., He was satisfied that he did not undertake to lock up the plaintiff’s baggage; but in that he was clearly mistaken, as was fully proved by two witnesses. Wyall, a public porter, testified that he had frequently carried baggage to the office No. 12, where it was received and locked up— that there is always a man at the office to receive baggage, who locks it up—that they are in the habit of locking it up.</p> <p>Ira Bliss, a witness for the defendants, testified that he was the agent of the company in the city of New York: that the office at No. 12 is only for the accommodation of passengers while waiting for the boats, and the other is the transportation office, where goods are booked, freight paid and receipts given. That there is a.closet in No. 12 for the convenience of passengers, where their baggage is locked up if they require it; that Bliven is at the office the principal part of the time, and has charge of the baggage ; he makes entries at the office and receives the fare from the deck passengers, but not from the cabin passengers, who pay on board ; that he has no power to make contracts of any kind. The witness said that he and all the agents of the company have express orders to make no contracts in relation to baggage; that a notification in large characters, “ all baggage at the risk of the owners,” has at all times been fixed up in the office and on board the boats, and has been inserted in all the company’s.notices in the public papers ; that the agents have no power to bind the company for baggage in opposition to the notice; that the passengers have'free access to the baggage and full control over it in the office—it is delivered to them whenever they ask for it—that when brought to the boat the baggage is put in a crate, and the passengers still have free access to it.</p> <p>Tne defendants moved for a nonsuit on the ground, 1. that this was a contract for a deposit which the company could not make by their charter; 2. that they could make no such contract for a deposit out of the state of New Jersey; 3. that the plaintiff was bound to prove that Bliven was the authorized agent of the company to make such contract; and 4. that if Bilven could make such contract to bind the company, the contract as proved was nudum factum, and the loss complained of proceeding from nonfeazance, the action .could not be sustained. The chief justice overruled the motion and charged the jury as follows—“ that the defendants, as common carriers, if they received the plaintiff’s trunks as the baggage of a passenger to be carried with him by their line, would, on common law principles, be answerable for the loss of the missing trunk; but that the notice limiting their liability, if it reached the plaintiff or came to his knowledge, controlled the common law rule, and protected them from responsibility, unless assumed by them to the plaintiff by contract, or unless usage and the permitted course of business and the practice of their office has been such as to establish that office in the consideration and belief of passengers and others having intercourse and dealings with it, and with the agents and servants of the defendants conducting it, as a place of deposit for the reception of the baggage of persons intending to take passage by their line, in the absence of the boat and until her arrival, and they, the defendants were chargeable on that ground with the custody of the trank and liable for its loss. That proof of the actual personal knowledge by the passenger of the notice limiting the defendants’ common law liability was not indispensably necessary; the circumstantial evidence might be such as to supersede the necessity of positive proof; but that the circumstances must be so strong and conclusive as to satisfy the jury, and leave no doubt on their minds that there was no positive proof of knowledge by this plaintiff of the notice, but that there was strong circumstantial evidence, and it was for the jury to judge of its sufficiency to satisfy them ; that if they believed from the evidence before them that the notice was known to the plaintiff, then the defendants would be protected by it from their liability as carriers further than would be afterwards stated to them; otherwise they would be under their full common law liability. That if the jury should be of opinion that th.e plaintiff was apprised of the defendants’ notice limiting their liability, the next inquiry for them would be, whether the defendants, notwithstanding their protection under. that notice, have made themselves responsible for the- loss by an express undertaking. for .the safe keeping of the trunks, or by any implied engagement or obligation, created by or resulting from the course of their business as carriers, .and the character they have" allowed to be stamped upon their office as a receiving office or place of deposit for the baggage of passengers to go by their line. -That the plaintiff insisted that the defendants were bound by the special contract of their agent to take charge of his trunks and safely keep them, and if the plaintiff’s witnesses were to bp believed, the agent did, though he denies it, enter into such an engagement with the plaintiff. But there ivas no sufficient proof of his authority to make such a contract for the principals ; that' on the contrary, in the view taken by the court of the" evidence, he" was nort only not authorized,-but expressly forbidden by his employers to enter into any such engagement; and his employment as an agent in that office by the defendants did not appear to the court to impart to him-that authority. Such'an agreement by him with the plaintiff, therefore, if made by him, did not appear to the court tó be binding upon the defendants. The question" consequently" arose, whether the defendants, by the permitted course of their business as carriers, and the.mode of conducting it by the agents at the office in question, had impressed upon that office the char-' acter of an office established or kept by' them for the reception of the baggage of passengers intending to go by their line, to be kept by them until it could be taken on board the boat ? and if this question is answered in the affirmative, then whether they were guilty of such negligence in the duty, which devolved upon them in the premises as to render them liable for the loss. That it was in evidence that the agents and servants of the defendants did receive the baggage of passengers at that office in the absence of the boat, and -when required did put the same in the inner closet and lock it up, without any notice, explanation hr admonition at the time that the same was to be otherwise or to any greater extent at the risk of the owners than it would be if on board the boat; and if the usage and practice of passengers to deposit, and of the defendants’ agents and servants to receive and keep baggage intended for transportation with the passengers by their line, had been so general, uniform and long continued, as to cause that office to be considered and regarded as the receiving office or place of deposit established or kept by the direction or with the knowledge of the defendants, for the reception of the baggage of passengers intending to go by their line, and applying for passage in the absence of the boat, to be kept by the defendants’ agent and servant, and locked up in the inner closet if required, until it could be put on board the boat; and that passengers acting upon this usage and the presumption and understanding on their part that the baggage so left was to be in the charge of the defendants ; and if the jury should also be of opinion that the neglect to place the baggage of the plaintiff in the inner closet and to lock it up, as the agent was requested to do by the plaintiff, and leaving it in an exposed situation in the outer office, was gross negligence in the agents or servants of the defendants, then they should find their verdict for the plaintiff, otherwise for the defendants.” The counsel for the defendants excepted to this charge, and the jury found a verdict for the plaintiff with $300 damages. Judgment having been entered upon the verdict the defendants sued out a writ of error.</p>

■ Error from the superior court of the city of New York. Barrell sued Simonton and declared in debt on a judgment rendered in his favpr against the defendant in a circuit court of the district of Columbia, held for. the comity of Washington. The defendant pleaded nul tiel record,'nil debet and payment. Issues being joined, the cause was brought to trial, when the plaintiff produded an éxemplification of- the record of judgment and rested.

This was an action of assumpsit for money paid. The declaration contained the money counts only; Wright alone was brought into court. On the trial it was proved, that in September, 1835, the defendants were partners in the saddling business; which partnership has since been dissolved.

<p>A destruction of merchandize insured, by the blowing up with powder of a- building in which it was stored, under the direction of a chief magistrate of a city to prevent the spreading of a conflagration, was held to be a peril insured against in a policy against fire, and the insurers adjudged liable for the loss, where it appeared that the fire would have destroyed the building had it not been blown up.</p> <p>The power thus exercised, though it should be admitted to have been illegally exercised, does not bring the case within the exception exempting the assurers from liability in case of loss arising from usurped power. The usurped power provided for in a policy means a usurpation of the power of government, and not a mere excess of jurisdiction by a lawful magistrate.</p>

Error from the New York common pleas. Anderson sued Harker on a check drawn by the latter on the Lafayette Bank for $140, dated 10th August, 1835, payable to bearer. He proved the presentment of the check at the bank and the non-payment thereof. This suit was commenced on the 12th August, 1835. The plaintiff having rested on the above proof, the defendant moved for a nonsuit on the ground of want of notice of the non-payment of the check.

Error from the superior court of the city of New York. This was an action of ejectment, brought by the plaintiff (Mary Young) for the recovery of an undivided moiety of a house and lot in the city of New York, whereof her father James Knox, died seised in 1823. James Knox came to this country from Scotland, in 1774, leaving the plaintiff in Scotland, with his grandfather, his wife having previously died. He remained in this country from his first arrival until his death.

<p>This was an action of trover for a pair of horses of the Value of $110, tried at the Clinton circuit in January, 1837, before the Hon. John Willard, one of the circuit judges.</p> <p>The defendant, Jones, being the assignee of a note made by the plaintiff, Otis, and payable to one Rodolphus M. Farnum in boots and shoes, obtained an attachment in his own name from a justice of the peace against Otis, on which process, a constable took the horses in question from the possession of Otis and delivered them to Jones for safe keeping. This was in April or May, 1836. On the return of the attachment, Jones produced and declared on the note; but as it was not negotiable, the suit, by advice of the justice, was discontinued, and Jones sued out a new attachment in the name of Farnum the payee of the note. On the return of this attachment, the justice inadvertently entered the suit and judgment on his docket as though Jones, and not Farnum, was the plaintiff, although all the papers showed that Farnum should have been mentioned on_-the docket as plaintiff. The judgment was for about seventy dollars, damages and costs. On the 27th May, 1836, an execution was issued On the judgment, naming Jones as the plaintiff, on which the horses were sold about the first of June, and purchased by Jones for $39. After the return of this execution, the justice discovered the error in his docket, and corrected it by naming Farnum as plaintiff; and on the 31st August, 1836, issued execution on the judgment as amended, on which the horses were again sold about the first of September, and again purchased by Jones for $36. The constable testified that he took the horses by direction of Jones, and put them into his hands for safe keeping, where they remained from the time they were taken on the first attachment until after the return of the second execution, except that they were twice taken away by the constable to sell at auction. Jones made some use of the horses, but they were in better condition at the time of the last sale than they were when first attached. This suit was not brought until after the second sale.</p> <p>The judge decided that the effect of the second sale, which was legal, was to mitigate the damages, and would prevent the plaintiff from recovering any more than nominal damages. The plaintiff excepted, and the jury, by direction of the judge, found a verdict in his favor for six cents, The plaintiff now asks a new trial.</p>

<p>Error from the New York common pleas. Ellis sued Collins under the act for the better security of mechanics and others erecting buildings in the city of New York, commonly called the lien law, and the act amending the same. See Statutes, sess. of 1830, p. 412, and sess. of 1832, p. 181. Collins had entered into a contract with one John G. Young, whereby the latter engaged to do the carpenter work according to a specified plan of four houses then erecting by Collins in the city of New York, for which he was to receive $3800 in certain specified instalments as the work progressed. Before the job was completed, Young abandoned the work, leaving an instalment of $1000 unpaid. Ellis, the plaintiff below, having furnished Young, the contractor, with a quantity of plank used in the erection of the buildings, for which he claimed the sum of $256 as due to him, gave notice of such claim to Collins, the owner of the buildings, and demanded payment of the same. The notice of claim was accompanied by an account, drawn up by Ellis, charging Young as debtor, specifying the quantity of plank and the value thereof, and two affidavits: one of Ellis himself, declaring the account to be just and true, and stating the amount due to him to be $256; the other was made by a third person, who merely swore to the value of the plank. On the production of these papers on the trial, the defendant objected to their sufficiency, insisting that the statute required an attested account of the materials furnished and the value thereof, and that the papers produced did not .amount to a compliance with the requirements of the statute. The objection was overruled. The plaintiff then called Young, the contractor, to prove a balance due to him from the defendant for work done on the buildings, over and above the payments received by him. He was objected to as not a competent witness, but the objection was overruled; and he then testified that the defendant was indebted to him over and above the payments received in the sum of $232, for extra work upon the buildings, and that what remained to be done under the contract when he abandoned the job, would not cost a sum equal to the last instalment which remained unpaid. On the other hand, evidence was given tending to show that the cost of completing the job would greatly exceed the $1000 and the sum claimed for extra ■work. The jury found a verdict for the plaintiff for the whole sum claimed. The defendant having excepted to the decisions of the court, sued out a writ of error.</p>

Error from the Saratoga common pleas. Maxwell sued Palmerton in a justice’s court in an action of trespass for killing his dog. The defendant proved by several witnesses that the dog was ferocious, had repeatedly made attacks upon sundry persons, and was looked upon as dangerous.

Forgery. The prisoner Stearns was indicted for forging an order in these words: “ To the cashier of the Union Bank—Sir, please deliver to Messrs.

Demurrer to plea puis darrien. The plaintiff declared on several promissory notes made by the defendants. Mills alone appeared and pleaded non assumpsit and several special pleas.

Error from the superior court of the city of. New York. C. I. Henshaw sued S. D. & ft. Barnes in the court below in an action of assumpsit. The declaration contained the money counts only, but the plaintiff had furnished a bill of particulars, which, after stating the title of the cause, Was in these words : “ 1834. June 16. Cash lent and advanced to defendants at their, request $225. 1834. Dec’r 19.

Error from the superior court of the city of New York. Thomas Asten, as survivor, &c. brought an action of debt on a bond executed by William Conklin to him and John Baker, as administrators, &c., of Abraham S. Egerton, deceased, bearing date'lstMay, 1827, conditioned that'during the life of one Judith Myers, the obligor should pay to the ' obligees annually the sum of $84; and that if they should within two years after the death of Judith Myers cause the fee of a certain…

This was an action of assumpsit, tried at the Rensselaer circuit, in September, 1838, before the Hon. John P. Cushman, one of the circuit judges. In October, 1835, the plaintiffs sold goods to the defendants, who were in partnership as merchants, to the amount of $149 67. In the spring of 1836, the partnership of the defendants was dissolved, M’Kinney agreeing to pay the partnership debts.

Error from the Wayne common pleas. Brown sued Jenkins in a justice’s court, by summons, returnable on the 27th July, 1836. The summons was returned personally served, and at the return day, the plaintiff appeared, and put in his declaration : the defendant did not appear, and the cause was adjourned, on the motion of the plaintiff, to the second day of August, then next.

Error from- the Washington common’ pleas.- Comstock and three other persons, owners of a. boat on the Champlain canal, commenced a suit by warrant in a justice’s-court againsí J. & S. Shannon for a breach of contract; the warrant having issued on an affidavit that the defendants were non-fesidents of the state. The defendants were arrested and brought before the justices.

This was an action of ejectment,, tried at the Dutchess circuit, in October, 1838, before the Hon. Charles XL Ruggles, one of the circuit judges..

This was an action of ejectment, tried at the Erie circuit in July, 18¡37, before the Hon. Addison Gardner, then one of the circuit judges,.-. • .

This was an action of assumpsit, tried at the Onondaga circuit in April, 1838, before the'Hon. Daniel Moseley, one of the circuit judges. The suit was brought against the maker and endorsers of a promissory note for 81500, at ninety days, dated 7th March, 1837, drawn by H. S. Gilbert, payable to L. Babcock, and endorsed by the latter and two mercantile firms, viz. Trowbridge &p Grant and J Sp H. Paddock.

Motion to set aside report of referees. The declaration contained the common money counts. The suit was commenced by declaration, which wás served on the defendant, Reed, only. The plaintiffs are commission merchants in the city of New York. The defendant, Dixson, in the fall of 1835 and the year following, resided at Richmond, Ontario county, and was largely engaged in manufacturing flour, which was sent to, and sold by the-plaintiffs, in New- York.

Indictment for forgery. Benjamin Rathbun, the prisoner, being in the city of New York, enclosed in a letter directed to David E. Evans, of Batavia, in the .county of Genessee, three promissory notes, of $5000 each, drawn by himself, and purporting to be endorsed by eleven individuals, to whom the notes were made payable ; desiring Mr. Evans to make and send to him three notes of similar ¡amounts, drawn by Mr. Evans, payable to ¡the prisoner, .and to keep the notes sent to…

This was an action of trespass, assault, battery and false imprisonment, tried at the Oneida circuit in April, 1839, before the Hon. Philo Gridley, one of the circuit judges. At a public méeting on the Sabbath, the plaintiff presented an anti-slavery memorial for signatures, to be forwarded to the legislature of this state, praying their interference on the subject of slavery.

Error from the superior court of the city of New York. The action below was brought by the bank against Cun-■ñingham to recover the amount of a check for $146, which ■it was alleged had been drawn by him on the Greenwich Bank, N. Y., and negotiated to the plaintiffs, and which had been lost. 2 R. S. 406, § 75 , 76.

Information in the nature of a quo warranta. On the first day of May, 1839, the attorney general filed the information in this case, charging the defendant with having usurped the office of first judge of the county of Fulton, and having used and exercised that office since the first day of January, 1839, without lawful authority.

This was an action of assumpsit, tried at the Chautauque circuit in July, 1838, before the Hon. Nathan Dayton, one of the circuit judges. The suit was brought on a bill of exchange, drawn by Henry Davis and three other persons on William Davis, of the city of New York, for the sum of $2536 61, dated at Brockport, 25th November, 1835, payable to the order of A. D. Patchin, Esq. three months after date.

Landlord and tenant. Certiorari to one of the assistant justices of the city of New York, to remove proceedings before him to recover the possession of land for the non-payment of rent, there being no sufficient distress, pursuant to 2 R. S. 511, art. 1. Ewbank demised certain premises in the city of New York to Wilder, for one year from the first day of May, 1838, at the annual rent of $700 payable quarterly.

Error from the superior court of the city of New York. Johnston & Boorman sued Oakley as the endorser of three promissory notes, bearing date 9th July, 1835, amounting together to the sum. of 87868 80, made by one John Ordronaux, payable eight months after date, to his own order, ¡and subsequently endorsed by him and passed to the plaintiffs for goods sold by them to a mercantile firm doing business under the name of Helio, Verren 6f Co. On the 14th-September succeeding the…

This was an action of ejectment, tried at the Oneida circuit in October, 1838, before the Hon. Philo Gridley, one of the circuit judges. The plaintiffs claimed to recover three-sixteenths of 640 acres of land, held in common and undivided, with the owners of the residue of the tract; and deduced title from Joseph Montague, who, on the 30th January, 1799, conveyed the tract of 640 acres to one Jacob Cram, from whom the plaintiffs derived title.

Error from the superior court of the city of New York. Fowler and others brought an action against the Sea Insurance Company, on a policy dated 28th October, 1835, by which the defendants insured goods and merchandizes valued at $3000, laden or to be laden on board the good brig Abeona, at and from New York to Newfoundland.

Demurrer to declaration. The plaintiff declared on a covenant executed by the defendant, whereby, after reciting that the plaintiff, as sheriff of the city and county of New York, had levied upon $8511 56 in bank bills, $300 in treasury notes and $150 in gold) by virtue of an execution in favor of John T. Smith'Ds.

The defendant was tried before a court of special sessions and a jury, on a complaint of an assault and batteiy committed by him on tile body of William Bean, a lad of elevenyears of age. The defendant was a schoolmaster., and the lad-his scholar. The assault consisted in alleged cruelty on the part of the defendant, whilst correcting the complainant for misconduct in school.

This was an action of trover, tried at the Delaware circuit in May, 1837, before the Hon. James Vanderpoel, then one of the circuit judges. Both parties are farmers, residing in the county of Delaware. The defendant, when he went to market with his own butter, had been in the habit of taking and selling butter for his neighbors, for which he received a commission of fifty cents per firkin.

This was an action on the case, tried at the Oneida circuit in May, 1838, before the Hon. Robert Monell, one of the circuit judges. The suit was brought by the plaintiff William Hartfield, by his next friend, Gabriel Hartfield, for an injury sustained by being run over, as alleged, by the defendants, with a sleigh and horses, and having his arm broken.

Error from the New York common pleas. Smith sued Franklin in an action on the case for negligence in omitting as a notary to give notice of the non-payment of a note, whereby the plaintiff alleged he had lost his remedy against the endorser.

This was an action of assumpsit, tried at the Oneida circuit in October, 1836, before the Hon. Hiram Denio, then one of the circuit judges. The action was on a promissory note dated February 2, 1833, by which the defendants promised to pay the intestate $150, in three instalments, with interest from December 22, 1832. The defence was that the note was without consideration.

This was an action of ejectment, tried at the. Delaware circuit in May, 1837, before the Hon. James Vanderpoel, then one of the circuit judges.

Demurrer to declaration. The plaintiffs in the first count of the declaration set forth an agreement under seal between the intestate, Robert North, and the defendant, Elijah Pepper, bearing date 15th December, 1837, whereby the intestate agreed to sell and convey to the defendant a farm for the sum of $3200, and that on the first day of May, then next, he would execute to the defendant a proper conveyance of the farm in fee, containing a general warranty and the usual full…

This was. an action of assumpsit, tried at the Livingston circuit in March, 1836, before the Hon. Addison Gardner, then oiie of the-circuit judges. The defendant pleaded non-assumpsit and the statute of limitations. The plaintiff gave in evidence a paper signed by the. ^defendant as follows: “August 6, 1822. -This day settled with John Van Fossen, one of the executors of Wm.

This was an action of assumpsit, tried at- the Oneida circuit in October, 1838, before the Hon. Philo Gridley, one of the circuit judges. The action was against the defendant as endorser of a bill of exchange for §1000, dated at Chittenango, February 27th, 1838, drawn by Henry H. Cobb, on Sanford Cobb of Albany, and payable to the order of the defendant, at the Commercial Bank of Albany, four months after date.

Error from the Oneida common pleas. Kavana brought an action of false imprisonment against Moulton, for causing him to be..arrested on an execution issued from a justice’s court, on a judgment in favor of Moulton against Kavana, which execution he alleged had been illegally issued, previous to the time limited by the statute for the issuing of justice’s executions ; and that if it had been issued on oath of danger, that he (Kavana) had not had due notice of Moulton’s…

<p>This court will not, upon a common law certiorari, review the decision of a justice of the peace in a cause before him, in refusing the defendant leave to withdraw a demurrer and to plead de nova, after judgment against him.</p>

This was an action-of covenant, tried at the Oswego circuit in November, 1838, before fhe Hon. Philo Gridley, one of the circuit judges.

In this case a motion was made to quash a writ of error, sued out by the plaintiff below, who brought an action of replevin for a pair of horses. The declaration contained two counts. The defendant pleaded the general issue and a special plea to each of the counts. Issues of fact were joined upon all the pleas except the special plea to the second count, to which there was a demurrer, and upon which the court below gave judgment for the defendant.

This was £i motion by special bail for an exoneretur, on the ground that the principal, since the judgment against him, had obtained a discharge under the act to exonerate the persons of debtors from imprisonment. The motion was resisted on the ground that the principal not being a resident of this state, came her a fraudulently for the purpose of obtaining his discharge.

In a proceeding against a person as an absconding debtor, the affidavit required by statute to be made by disinterested witnesses, though unqualified in its terms that the debtor had left the state with intent to defraud his creditors, is not enough to justify the issuing of a warrant; the witnesses must state the facts and circumstances to establish the grounds on which the application is made, so that the officer to whom the application is made may exercise a discretion in…

In October term, 1839, a judgment was recovered in the name of the plaintiff against W. M. Tallman, as administrator of D. Tallman, deceased, to the amount of $272 14 on a former judgment against his intestate. The judgment had been assigned to one Paul P. Yale. In December, 1839, the defendant, Tallman, purchased a judgmént against Yale, in favor of Bennett & Stryker to the amount of $225 69, and took an assignment to himself as administrator.

Appropriation of moneys raised by execution. Folger and Townsend were partners as rope manufacturers. Fen-ton having obtained a judgment against Folger for $1234 31, for a debt owing by Folger individually, had an execution delivered to the sheriff on the 13th May, 1839, which was levied upon a quantity of rope, cordage, hemp, &c. the partnership property of Folger and Townsend, which was advertised to be sold on the 21st October.

Motion to set aside a writ of habere facias possessionem as issued irregularly, and for a new trial under the statute in an action of ejectment. The suit was originally commenced in the Suffolk common pleas, where the plaintiffs obtained a verdict in October, 1830. In January 1831, a new trial was granted' by the common pleas, and in the month of May following, the cause was removed into this court by certiorari.