Volume 22 — Wendell's New York Reports

General Banking Law. This was an action brought by Anson Thomas, as president of an association called The Bank of Central New-York, formed under the act to authorize “ the business of banking,” passed 18th April, 1838, for the recovery of three bills of exchange, drawn by the defendant and discounted by that bank. The defendant demurred to the declaration, which commenced in these words : “ St'. Lawrence county, ss.

This was an action of assumpsit, on a promissory note, tried at the Genesee circuit in October, 1836, before the Hon. Addison Gardner, then one of the circuit judges. The suit was brought on a promissory note, the consideration of which was the transfer of a right to make and vend, within certain limits, an improvement in a threshing machine, for which Harmon had obtained a patent in 1829.

This was an action of ejectment, tried at the Oneida circuit in May, 1838, before the Hon. John Willard, one of the circuit judges. The plaintiff claimed to recover the premises in question under a sheriff’s deed bearing date 28th February, 1835, in pursuance of a sale by virtue of an execution issued upon a judgment against the defendant, Daniel Ferguson, in favor of one Samuel B. Ferguson.

<p>A tenant cannot deny his landlord’s right to demise, nor can he set up an outstanding title against him, but he may become a purchaser of the reversion at a sheriff’s sale on an execution against the landlord, or he may acquire the interest of his landlord in the reversion as a redeeming creditor, where the reversion has been sold on an execution against the landlord.</p> <p>Where the interest of the landlord, thus acquired by the tenant, extends to the whole of the demised premises, he may set it up in har of a recovery for rent; but where it includes only a part of. the demised premises, it operates only in diminution of damages. The tenant in the latter case may demand an apportionment of the rent.</p>

Demurrer to declaration. This was an action of debt on an arbitration bond in the penalty of $2000, bearing date 9th July, 1838, and executed by the.Rensselaer County Mutual -Insurance Company, to J. B. Nichols and B. F. Fay, assignees of John H. Adams; the condition of which after reciting “ that whereas a certain difference has arisen between the said R. C. M. I. Company, and the said John U Adams respecting a certain loss claimed to have been sustained by him, by and upon…

<p>Encroachment on highway. In this case, a certiorari was issued to Orange Foote, Alden Brown and George Grummond, commissioners of highways, of the town of Kirkland, in the county of Oneida, to which they returned that on 22d April, 1837, a complaint was exhibited to them of an encroachment upon a certain highway ; that they immediately proceeded to examine into the matter, and determined that an encroachment had been made, and agreed to meet at a certain place, on the 20th day of April, for the purpose of consulting on the expediency of making an order for the removal of the encroachment; that they, the three commissioners, met accordingly, and having consulted together, two of them, viz: Foote and Brown, made an order, and subsequently to the loss of the order of the eighth of May, reduced the same to writing, as of the twenty-eighth of April. " The order thus made, commences as follows: “ At a meeting of the commissioners of highways, of the town of Kirkland, in the county of Oneida, holden at the Inn of Alden Brown, in said town of Kirkland, on the 28th day of April, 1837, at which said meeting Orange Foote and Alden Broion, two of the commissioners of highwaysof said town, were present, and George Grummond, having been duly notified, did not attend, (but was) deemed and adjudged by the two commissioners (to be) present. After a careful examination of the road, &c.” they adjudged that the breadth of the road as originally intended was three rods, and that John Fitch had encroached. This paper purported to have been signed by the three commissioners, but there is a note attached to it in these words : “ George was not present, but assented to the foregoing. April 28th, 1837.” The commissioners then further return that they caused a survey of the road to be made on the fourth day of May, the minutes of which survey and an accompanying diagram was delivered by the surveyor to two of the commissioners, viz: Foote and Brown, who thereupon gave due notice to Grummond, of an intended meeting on the eigth day of May, at the house of Brown, for the purpose of making an order requiring Fitch to remove the encroachments, and notifying him to remove his fences. That at the time and place appointed; Foote and Brown attended, and made and subscribed an order, and also made and subscribed a notice, a copy of which they annexed to their return; they further certify that Grummond consulted with them as to making the order and notice of the eighth of May, and that he approved of the same. The notice of the eighth of May, annexed to the return, was directed to John Fitch and was to the effect, that an order had been duly made and filed in the town-clerk’s office, dated on the eighth day of May, requiring him within 60 days to remove his fence, specifying the breadth of the road originally intended, describing the line to which his fence should be removed, and specifying the extent of the encroachment. This notice was served on Fitch, on the day of the date of the notice, and he on the same day denied the encroachment in writing. The commissioners thereupon applied to a justice for a precept to summon a jury to inquire into the premises. Two juries heard the proofs and allegations which were produced, and could not agree upon a verdict. A third jury was summoned, who, on the 26th July, 1837, found a verdict and made and subscribed a certificate of their finding, which was filed on .the same day, in the town-clerk’s office. The jury certify that John Fitch has encroached by fences on the highway leading from the village of Franklin, in the town of Kirkland, to the town of Marshall, beginning at the south line of his farm on the high-way ; running northerly on the line of said highway to the north line of his farm on said highway, according to the last survey of Gains Butler. The commissioners, in the return, stated two surveys to have been made by Butler, one on the 4th May, 1837, and the other on the 24th July, 1837, and that both were filed in the town-clerk’s office.</p>

This was an action of ejectment, tried at the Onondaga circuit, in September, 1837, before the Hon. Daniel Moseley, one of the circuit judges. Both parties claimed under the will of Rudolph R. Shoemaker, which was made on the 7th June, 1827. By it, the testator gave all Ms estate, real and personal, of which he was then or should be in possession at the time of his decease, to his toife Margaret, without any words of limitation.

This was an action of ejectment, tried at the Oneida circuit, in October, 1838, before the Hon. Philo Gridley, one of the circuit judges.

This was an action of ejectment, tried at the Yates circuit, in December, 1838, before the Hon. Daniel Moseley, one of the circuit judges. The plaintiffs claimed to recover 109 acres of land situate in the town of Milo, in the county of Yates, under a devise in the last will and testament of Gozen Ryerss, of Richmond, in this state, bearing date 21st October, 1800, in these words: “ Item.

Motion to set aside report of referees. This was an action of covenant on a sealed agreement, by which the plaintiffs contracted to complete a certain wall in a good, sufficient and workmanlike manner, as soon as might be, for which the defendants agreed to pay, within 30 days from the date, ¡$1500, with other sums. This action was brought to recover the ¡$1500. For this sum, one of the defendants had given his acceptance to the plaintiffs, which had been dishonored.

This was an action of debt on judgment, tried at the Herkimer circuit in May, 1838, before the Hon. John Willard, one of the circuit judges.

Demurrer to declaration. The plaintiff declared in debt for a penalty as stipulated damages, on the following agreement : “ Whereas, unfortunately, a difficulty has heretofore existed between Jacob McGinnis, of, &c. and Harvey Hoag, of, &c. of and concerning sundry deal and traffic, &c. now, therefore, to put an end to all dispute, Sec. it is hereby reciprocally agreed by and between the said parties, that all their difficulties shall be submitted to the arbitrament of B. J.…

The prisoner was convicted in July, 1839, at the New York oyer and terminer, of the murder of one Peter Fitzpatrick.

Error from the superior court of the city of New-York. Ostrander sued Walsh and Mallory for money had and received to his use, and on the trial of the cause proved that on the 3d December, 1836, he gave to the defendants a promissory note of one N. C. Platt, for the sum of $535, payable 12th November, 1837, for which the defendants gave him a receipt on account; and it was agreed that the plaintiff might trade out a part then, and the balance six months thereafter.

<p>In case of the dissolution of a copartnership, actual notice of the dissolution must be brought home to all persons with whom the firm has had dealings, te protect, as to such persons, one partner from the acts of another in the use of the partnership name after the dissolution.</p> <p>Where a note was made by a firm in the copartnership name, which was discounted by a bank for the accommodation of the payee, and was repeatedly renewed, it was held, that the firm must be considered as having had dealings with the bank within the meaning of the rule requiring actual notice of the dissolution. *</p> <p>Proof that the bank took a newspaper in which notice of the dissolution was published, was held not to amount to actual notice.</p> <p>It seems, however, that the rule of actual notice would not be applied to err ery person through whose hands, in the ordinary course of business, the paper of the firm had passed, but would be limited to those who were in the habit of taking the paper under circumstances where the knowledge of the fact on the part of the firm might be legally presumed.</p> <p>It seems, also, that the acceptance of a note from one of several partners, for a debt due from the firm, in lieu of the note of the firm previously given* will not discharge the other partners unless there be evidence that such was the intent of the transaction ; and that the new note remaining unpaid, the creditor may recover his debt under the common counts, in a is action against all the members of the firm.</p>

<p>Error from the supreme court. On the 10th May, 1825, Dankin & Bacon bought of W. Williams a newspaper éstablishment, known as the Utica Sentinel, and the good will and patronage of the paper, for which they agreed to pay $3500 ; viz; $3000 for the patronage and good will of the establishment, and $500 for the types and printing apparatus ; and the parties accordingly entered into an agreement under seal to carry the purchase into effect. A. Seward, uniting with W. Williams, these parties covenanted as follows : “ That they will not, nor will either of them, establish, set up or commence the publishing, editing or printing of any paper of a literary, political or miscellaneous character, in the village of Utica, or county of Oneida, during the time the parties of the second part, or either of them, or their or either of their immediate assigns shall continue the publishers or proprietors of any paper in the aforesaid village. And they further agree, that they will not, nor will either of them, suffer any such paper to be published or printed in any building owned by them or either of them ; and that they will not aid or assist, or be in any way or manner accessary to the printing or publishing of any such paper, by any person or persons whatsoever, in the aforesaid village or county, during the time above specified.” For the faithful performance of which covenant, Williams and Seward bound themselves in the sum of $3000. Then followed a mutual stipulation that the said sum of $3000, should be and was thereby fixed and settled as liquidated damages and not as a penal sum for any violation of the covenant, or any of its terms or conditions. In January, 1826, Williams sold a quanity of type to one Merrell, and rented to him a printing press, with which type and press he published a political newspaper, called the Utica Intelligencer, which was continued for 16 months, and Williams occasionaly advertised in it. The first page of the first number of the paper was set up by Merrill in the printing shop of Williams, in Utica, but without the actual knowledge of Williams or Seward; In June, 1830, one G. S. Wilson contemplatihg the establishment of a newspaper of a political, miscellaneous and literary character, to be called the American Citizen, employed Williams to print 1000 copies of the first number of the paper, as a specimen of the contemplated publication ; who accordingly printed the said ] 000 copies, stating in the same that it was printed by him, and containing an advertisement of his own as an advertising customer. The publication of the American Citizen was continued in Utica by Wilson for 29 weeks, during which time R. North-way, junior, and D. S. Porter, assignees of Bakin & Bacon, Were the publishers of a newspaper in the village of Utica, called the Sentinel and Gazette. Previous to the publication of the American Citizen, to wit, in January, 1830, Dakin, (who had become solely interested in the covenant of Williams & Seward, by the relinquishment of Bacon,) for the consideration of one dollar, released Williams & Seward from their covenant “ as to the editing, printing or publishing of an anti-masonic paper called the Elucidator, so long as it shall be anti-masonic.” In January, 1831, an action of debt was commenced in the names of Dakin & Bacon, against Williams & Seward on the instrument of the 10th May, 1825, in which the plaintiffs assigned as breaches the conduct of Williams in respect to the publication of the two newspapers called the Utica Intelligencer and the American Citizen. The cause was put at issue and tried by a jury, who found a special verdict, setting forth the above facts, and concluding by finding $3000 for the plaintiffs, if, &c. The supreme court decided that the $3000 should be considered as liquidated damages, and not as a penalty, and gave judgment accordingly for the plaintiffs. See the case more fully stated, and the opinion delivered by the chief justice. 17 Wendell, 447, et seq. The defendants sued out a writ of error.</p>

Error from the supreme court. This was an action of assumpsit, brought in the superior court of the city of New-York by S. & M. Allen against the bank, to recover the amount of a bill of exchange, drawn in New-York on a mercantile house in Philadelphia, and deposited by the plaintiffs with the Merchants’ Bank in New-York for collection, which was lost to the plaintiffs in consequence of the omission to give notice of non-acceptance to the endorsers.

<p>An agent of a foreign mercantile house who induced a merchant here tcj> make a shipment of goods to his principals, to be sold on commission, and engaged, that insurance should be effected either here or in Europe on the .property shipped, was held not to be personally liable for 9, breach of the agreement tp insure ¿ the action, if maintainable, lay only .against the principalis. y</p>

<p>Error from the supreme court. Halliday sued J. D. Ansley, J. McDougall and W. J. Wightman, in the superiot coürt of the city of New-York, as the drawers of two bills of exchange of $750 each, drawn in the city of New-York, in the name of Ansley, MeDougall fy Co., on a firm transacting business in Chai'leston, under the name of J. D. Ansley 8f Co., both bearing date 86th November, 1825, payable to the order of the plaintiff,- one in 30, and the other in 40 days after sight. The bills were accepted but protested for non-payment.- MeDougall alone was brought into court,the sheriff having returned the other defendants not found on the capias ad respondendum, issued in the cause. The bills were drawn by Ansley, in the name of Ansley, Mc-Dougall Sf Co., and were accepted by Wightman in the name of J. D. Ansley Co. They were protested by a notary public at Charleston, under his notarial seal, he certifying in the protests that he had made demand of payment, that the same had been refused, and that he had given due notice of non-payment to the drawers and acceptors. The plaintiff proved that Ansley and Wightman were co-partners in trade, transacting business under the name of J. D. Ansley fy Co., that in July 1825, Ansley being in England, entered into a written agreement with MeDougall in these words: “We engage to allow Mr. MeDougall one-fourth the profits of our trade by his becoming an active partner, or give him the option of having his expenses paid out and home. Should Mr. McDougall not be satisfied with his proportion of the profits arising out of the said concern, we shall allow him a salary of $1200 per annum;”' to which agreement, Ansley affixed the name of his firm, viz. John D. Ansley Sf Co. In pursuance of this-agreement, McDougall came to- this country. He arrived in New-Yord on the eight day of November, 1825. Previous to his arrival, Ansley, had put up a sign at a place of business in New-York, with the names upon it of Ansley,. McDougull Sf Co., and it was generally reported previous-to the arrival of McDougall, that he had become a partner with Ansley. He frequented the place of- business, over the door of which was the sign of Ansley, McDougall Sf Co, and transacted business as a member of that firm. On the-' fifth day of December, 1825, he sailed for Charleston, leaving up the sign of Ansley, McDougall Sf Co.- In relation to Wightman being a member of the firm of Ansley, Mc-Dougall Sf Cov, there was - no evidence whatever, other than reputation. When the plaintiff rested, the defendant’s counsel moved for a nonsuit, on the ground that there was no evidence that Wightman was a-member of the firm of Ansley, McDougall Sf Co. The motion for a-nonsuit was-denied. When the proofs were closed, the defendant’s counsel renewed the objection, and - requested the judge to charge the jury that the plaintiff could not recover, unless they were satisfied that he had shown that Wightman was, a partner in the firm of Ansley, McDougall Sf, Co., and that general reputation was not alone sufficient to establish such fact. On the subject of general reputation, all that was said in the charge to the jury was the following : “ If the jury should not be satisfied that McDougall elected to become a partner, then they were to find upon the evidence whether he held himself out, or knowingly suffered himself to be held out by others, as a partner in such a manner as to induce the world to believe he was such a partner. If he did so, then he was bound as a partner by the acts-of the firm to all persons, except such as-might know that in fact he was not a partner. The jury, however, in considering the evidence on this head, must carefully lay out of view ' the acts or declarations of Ansley, or of any other person, before the arrival of McDougaH in the country, and also the reputation on the subject of the partnership prevailing before that time.” The judge further charged the jury, that before the plaintiff could recover, they must be satisfied that all the defendants were partners in the firm of Ansley, Mc-DougaM Co. The jury found for the plaintiff, on which verdict judgment was entered. The defendant having excepted to various decisions made in the progress of.the trial and to the charge of the judge, sued out a writ of error removing the record into the supreme court, where the judgment of the court below was reversed. See the case more fully stated, and the opinion of the supreme court, delivered by Justice Cowen, 20 Wendell 81, et seq. The plaintiff 'thereupon removed the record into this court.</p>

<p>For the purpose of raising a presumption or proving a pedigree in an action for the recovery of lands by recitals contained in an ancient instrument, the probate of a will as a will of personal estate, or the record thereof in the proper office, is admissible in evidence.</p> <p>Evidence of pedigree ; and evidence to warrant the presumption of an ancient grant.</p>

<p>Error from the supreme court. Carow brought an action of trover in the superior court of the city of New-York, against Hoffman & Co. auctioneers in the city of Baltimore, in the State of Maryland, for a quantity of merchandize stolen from the plaintiff in the city of New-York, and forwarded by the thief to the defendants to be sold at auction. The thief was indicted and convicted of the felony in May 1833, previous to which time the goods had been sold and the proceeds paid over by the defendants to the thief, without notice of the felony. The suit was commenced in October, 1834, against the defendants, who moved for a nonsuit on the grounds, that the proceeds of the goods having been paid over to the thief previous to his arrest, and before the defendants had notice of the robbery, the plaintiff was not entitled to recover; and that at all events under the circumstances of the case, the plaintiff was bound to prove a demand and refusal. The judge presiding at the trial refused a nonsuit, and charged the jury to find for the plaintiff. The defendants excepted. The jury found a verdict for the plaintiff, upon which judgment having been entered the defenants removed the record into the supreme court, where the judgment of the court below was affirmed. See the opinion delivered by the chief justice, 20 Wendell, 22. A writ of error was thereupon sued out removing the record into this court.</p>

Error from the supreme court. Wells & Spring brought an action of assumpsit against Thomas Evans and two others as the makers of a promissory' note for $3000, dated 27th July, 1835, payable to Samuel S. Hill, twelve months 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.

Error from the supreme court. Kortright brought an action of assumpsit against the Commercial Bank of Buffalo, for the refusal of the bank to permit a transfer to be made upon its books of 100 shares of stock, standing there in the name of Pierre A. Barker.

<p>Mrror will not lie for a misjoinder of counts, in a declaration, e. g. adding a count in assumpsit to one in" covenant, after issue has been taken upon each count and a general verdict found for the plaintiff; the defendant, if desirous to take advantage of the mistake of his adversary, should have demurred.</p> <p>A special assignment of errors that the issues joined Were not tried, is bad, as impeaching the record; a plea of in nullo est erratum to such assignment, operates as a demurrer, and not as a Confession of the fact assigned as error.</p> <p>Cause's of action may be joined in a declaration which are of the same nature, admit of the sameplea, and in which the' same judgment can be rendered ; and sometimes they may be joined though not admitting of the same plea: for instance, debt on bond may be joined with debt on judgment. Per Chancellor Walworth.</p>

Error from the supreme court. The plaintiff brought an action in^the superior court of the city of New York on a policy of insurance on the British ship Priscilla at and from Liverpool to the port of St. Johns, New Brunswick. The vessel was wrecked and totally lost.

<p>Error from the supreme court. This was an action of ejectment, brought by Rachel Malin against Israel Herrick for the recovery of a tract of land conveyed to her by one James Hathaway, by deed, bearing date 30th July, 1794. The premises conveyed being described as follows: “ A “ certain tract of land in township number seven in the se- “ cond range of Massachusetts pre-emption, being in com- “ mon and undivided with the proprietor of said land, and “supposed to contain about four hundred acres : it being all “ my right, title, interest and demand to lands in said town, “except one hundred acres, which is conditionally convey“ed Mariah Hathaway. The remaining part of my right “ in said town is hereby conveyed to said Rachel; and I “ do, by. these presents, put said Rachel in my place and “ stead, to receive said lands in the division thereof with the “ said proprietor, to her own use and to her heirs and as“signs forever.” The deed was read in evidence without objection. At the time of the execution of the deed, Hathaway resided on the premises conveyed ; he died about two years thereafter, and his widow continued in possession about four or five years after his death, when she quit. After which, the premises remained unoccupied until the defendant entered in 1824 or 1825. On the part of the defendant, a witness was called, who testified that from an inspection of the deed executed by Hathaway to the plaintiff, it appeared plain to him that a letter had been erased from the end of the word proprietor, (as italicized above;) that where the word land is now written, (italicized as above,) he could discover that the word town had been originally written—he could see the outline of the letters t, o, and n, and what might have been a w; that the word town appeared to have been written with the same ink as the rest of the deed, whereas the word land was written with different ink, darker and apparently newer. As to the words in said town, (italicized as above.) he testified that the word in and said, and the two first letters of the word town, appeared to have been written over, with blacker ink than the rest of the deed—the two last letters of that word having probably been worn off, or torn off by accident. The counsel for the defendant requested the judge who presided at the trial of the cause, to charge the jury that the alterations in the above deed were material, and avoided the deed if made after its execution, even though made by a stranger; that if the alterations were immaterial and were subsequent to the execution of the deed, made by the grantee or by her direction or with her assent, such alterations would avoid the deed and prevent its being legal evidence of title; and that the alterations must be presumed to have been made subsequent to the execution of the deed, until the contrary was made to appear. The judge omitted to charge the jury as requested, and instructed them that if they were satisfied with the evidence in the case, they should find a verdict for the plaintiff. To which charge., and omission to charge as requested, the counsel for the defendant excepfed. The jury found a verdict for the plaintiff. There was much other evidence in the case, and various other questions of law agitated, but the case is reported only in reference to the question arising upon the alterations of the deed. The defendant applied to the supreme court for a new trial, which was denied, and judgment was rendered for the plaintiff. In reference to the question of alteration, Chief Justice Savage, who delivered the opinion of the court, in a case of the same plaintiff against 1. N. Rose, in which the same question arose, observed : 11 It is said, however, that the deed has been altered, and, in consequence of such alteration, it cannot be evidence to support the plaintiff's title. The first subject of enquiry in relation to this point is, whether the alteration is in a material part. The only alteration consists in writing the word land upon an erasure of the word town, and erasing the letter s at the end of the word proprietors. This alteration occurs in the description of land conveyed ; it originally read, “ a certain tract of land in township number seven in the second range of Massachusetts pre-emption, being in common and undivided with the proprietors of said town.” Now it makes no difference whether the parcel conveyed was in common and undivided with the proprietors of said toion, or with the proprietor tof said land. The word land can have no other sensible meaning than township or town, in the connexion in which it is used. If land is held in common, there must be at least two owners ; to say that the grantor holds in common with the proprietor of said land, is saying that he holds in common with himself; and what follows shews that the property conveyed, is all his right, title and interest to lands in said town, to wit, township number seven. If however, the alteration can be supposed to alter the sense and meaning of the deed, then it is incumbent on the party producing it to give satisfactory explanation, 2 Wendell, 555, unless the estate is such an one as may have existed without a deed, and -has vested by transmutation of possession; in which case the estate continues, although the deed be destroyed, 8 Cowen, 71. The grantor in this case died soon after executing the deed. His widow remained a number of years in possession, as was understood, under Rachel Malin, who was the reputed owner of the lot:”</p> <p>The defendant sued out a writ of error removing the record into this court, where the case was argued by</p>

<p>'The acts of the legislature of 1830 and 1832, giving a lien for work done or materials furnished is the erection of buildings in the city of New York upon the fund in the hands of the owner of the buildings due to the original contractor, apply only to the creditors of the original contractors ; a creditor of a sub-contractor can claim nothing under these acts.</p> <p>An account verified by the oath of the claimant is an attested, account within the meaning of those acts.</p> <p>it seems, that work done and materials found, although not applied to the building itself, come within the purview of the acts, if connected with the building and embraced in the contract.</p>

<p>A guaranty for the payment of a note is not void orr the ground of maintenance, although substituted for another guaranty for the express purpose of inducing the holder thereof to release the first guarantor so that he may be called as a witness to maintain an action brought for the recovery of the debt the payment whereof he had guaranteed.</p> <p>Such first guarantor on being released becomes a competent witness, although the substituted security was obtained by bis procurement, where there is no evidence that he had agreed to indemnify the second guarantor. Maintenance is no longer an oifence here, except as to the buying and selling pretended titles to land and falsely moving and maintaining suits.</p>

Erbor from the supreme court. Lusk sued Hasting iti an action of slander, for the speaking of words charging him with perjury, whilst testifying before a magistrate on an examination had before the magistrate on the return of a warrant issued against the defendant on the complaint of the plaintiff, that the defendant had threatened to shoot him, The defendant pleaded, 1. Non cul.; 2.

<p>Error from the supreme court. This was an action of trespass quare clausum fregit, brought by Pearsall against Post, for entering upon the land of the plaintiff, prostrating his fences and depositing a quantity of manure. The defendant pleaded non cul. and gave notice with his plea that he would give in evidence in bar of a recovery, that at the time when, &c. and long before there was and had been, on the close of the plaintiff, a common public highway and landing on the east side of .Hempstead Harbor, for all the citizens and inhabitants of the state of New York, to go, return, pass and repass, on foot and on horseback, and with cattle and carts, &c. at their free wili and pleasure, and to deposite, load and unload manure and other materials at their like free will and pleasure : wherefore he, the defendant, being a citizen and inhabitant of the state of New York, and having occasion to use the same way and landing, at the said time when, &c. entered with cattle, carts, &c. upon the said highway and landing, and deposited, loaded and unloaded thereon a quantity of manure, as he lawfully might; and because fences had been wrongfully erected and were then standing upon and across the highway and landing so that he could not pass, &c. he removed the same, doing no unnecessary damage. Upon the issue thus joined the cause was tried in September, 1838. The defendant admitted that the plaintiff was the owner of a farm of which he had been seised and possessed for five years and upwards, previous to the trial, and that his ancestors had been seized and possessed of the same for upwards of one hundred years. A map of the farm was produced exhibiting the mansion house of the plaintiff and his ancestors,^Hempstead Harbor, a portion of the grounds designated as the landing lying directly in front of the mansion house, from which it was separated by a garden fence, and a store, store-house and other'buildings on a public highway near the. landing. Israel Pearsall, an ancestor of the plaintiff, was in possession of the farm as long since as forty-five years before the trial; he planted a number of cherry trees on the landing, and enclosed them with a fence which stood for a few years until the trees grew out of the reach of cattle ; with the exception of this enclosure, the landing had always remained unenclosed until about forty days previous to the trespass, when the plaintiff enclosed it with a fence. After the landing was enclosed the defendant arrived with a sloop load of manure, took down a portion of the fence and desposited the manure on the landing, against the will of the plaintiff and after having been expressly forbidden. The landing, as it is called, is a rugged knoll, terminating in a quagmire, and is unfit to be used for agricultural purposes. The defendant offered to prove that the portion of the farm called the landing had been used for forty years, and still was used by the citizens and inhabitants of this state, as a landing place to deposite, load, and unload manure and other materials thereon; that the same had been so used under a claim of right and adversely to the rights of the owners of the feé of the land, who knew that the public were using the same for such landing and place of deposit, during the time aforesaid ; that the same had been by such use dedicated to the public by the owners of the farm, as a landing place and place of deposite of all kinds of manure and other articles carried to and from market; and that he, the defendant, at the time when, &c. was an inhabitant of the town of North Hempstead (in which town the farm is situated) and axitizen of this state. This evidence was objected to by the plaintiff’s counsel and rejected by the circuit judge, on - the ground that the public could not acquire any right by user to the landing in question : to which decision the defendent’s counsel excepted. The jury thereupon found a verdict for the plaintiff with six cents damages and six cents costs. This verdict was rendered upon a second trial; on the first trial a verdict was found for the defendant, which was set aside by the supreme court and a new trial granted. See the case as presented on the first trial, and the opinion delivered upon the granting of a new trial, 20 Wendell, 111, et seq. Judgment having been rendered for the plaintiff on the second verdict, the defendant sued out a writ of error. The case was argued in this court by</p>

<p>Appeal from chancery. On the 12th November, 1836, Thomas Darling made an assignment of all his real'and personal estate to Leonard Kip and Joseph F. Darling, and accompanied the assignment with five deeds of the same date, conveying specific parcels of real estate to his assignees, which deeds were executed by him and his wife. The property assigned and conveyed by a schedule accompanying the papers was valued at $94,724. In the assignment it was stated, that the object of the assignor in its execution was to make over and secure to his creditors, or to the assignees in trust for them, all his estate real and personal. The trusts declared were that the assignees should, with all due diligence, sell and dispose of the estate, real and personal, at auction or private sale, for the most moneys that could be gotten for the same, or to mortgage the real estate, or any part thereof, as they should deem most advisable and best calculated to be the most productive and advantageous ; and collect the debts; and, from the proceeds after deducting costs, charges and expenses, pay certain preferred creditors, whose debts were estimated at $70,082,43, and with the residue of the proceeds pay and satisfy the remaining creditors of the assignor. Then followed a power of attorney to the assignees to collect debts. In October, 1837, the respondents filed a creditors’ bill in the court of chancery, alleging the obtaining of a judgment in their favor and a return of nulla bona, &c. and charging the assignment of the ] 2th November, 183.6, to be fraudulent, praying a discovery, that the assignment might be declared void and a receiver appointed, and also praying for an injunction restraining the assignor from disposing of any of his property, and restraining the .assignees from selling, mortgaging or .otherwise .encumbering the property assigned to them, or parting with the same in any way, until the order of the court. The assignor and assignees put in separate answers, acknowledging the assignment, but denying all fraud, &c. In April, 1838, a motion was made by the complainants be? low for the appointment of a receiver, and at the same time a motion was made by the defendants to dissolve the injunc? lion which had been granted according to the prayer of the ■bill. The Chancellor thereupon made an order adjudging and declaring that no estate in the real property of Thomas Darling vested in the assignees by virtue of the assign? ment and conveyances executed to them, and made a refer? ence to a master to appoint a receiver of the rents and profits of the real estate, authorizing him to execute leases, and requiring the assignees to give their assent to the leases. As to the motion to dissolve the injunction: the Chancel? lor denied, it as respected the assignor, and in respect to the assignees, modified it as it regarded the real estate so far as to authorize the assignees to sell the real estate in case the receiver approved the sale : the purchase money to be deposited in a trust company, and in case of sales on credit, the bonds and mortgages to be taken in the name of the assistant register and deposited with him. In respect to the personal property assigned, the injunction was wholly dissolved. From the order thus made the assignor and as? sjgnees respectively appealed. The appeal was argued i$ this court by</p>

<p>Appeal from chancery. The appeal in this case grew out of a motion originally made before the vice chancellor of the first circuit, to compel a purchaser at a master’s sale to complete his purchase of certain lots in the city of New-York, he refusing to do so upon the allegation of defect of title. The order for the sale of the property was made in a partition suit prosecuted in the court of chancery. The bill for partition was filed by Henry Jackson and Maria his wife, and the defendants in the suit were Benjamin B. Edwards and Nancy his wife, David S. Jackson and Sarah his wife, John O. Fay and Catharine his wife, Moses W. S. Jackson, and John J. H. Jackson. The sale took place ] 5th February, 1837, and John M. Bloodgood, amongst others, was a purchaser, two lots being struck oft’ to him at the sum of $16000. The terms of sale were as follows: ten per cent, of the purchase money to be paid down; thirty per cent, to be paid on the first day of March following the sale, or as soon thereafter as the decree should be enrolled; and sixty per cent, to be secured by bond and mortgage, to be paid within three years, with interest. The master’s report of the sale was confirmed on the 14th of March, 1837. On the 7th April, 1837, a deed, executed by the master in pursuance of the sale, was tendered to Bloodgood, and evidence of the enrolment of the decree exhibited to him ; and performance on his part of the terms of the sale demanded, which he refused, alleging that the deed of the master would not confer a perfect title. One difficulty in respect to the title grew out of the conveyance by which the estate of Mrs. Edwards was granted to her. It was a deed executed to her and her husband by Henry Jackson on the 6th July, 1835, which conveyed one third of a certain share of property to her husband during his life, with a right to raise $>5000 out of the remaining two thirds; and all the residue of the share was conveyed to her during the joint lives of herself and husband, with a power to her of appointing the fee, either by deed or will. If she died before her husband without executing the power, the estate was limited to her "issue, and in default of issue, to her right heirs, and if she survived her husband, she took the absolute fee. Mrs. Edwards, however, in her answer to the bill, had consented to a partition or sale, if the same should become necessary, and in her own hand-writing had endorsed her approval upon the draft of the decree ordering a sale. On the 17th April, 1837, the vice chancellor made an order of reference to a master to hear and examine the purchaser’s objections to the title. Previous, however, to the hearing before the master, the vice-chancellor on the petition of the complainants made another order on the 27th November, 1837, directing Mrs. Edwards to execute a deed to the purchaser, cutting off the contingent limitations : which deed was accordingly executed by her on the 22d December, 1837. On the 8th January, 1838, the master, in pursuance of the order of reference to him", reported a number of objections to the title as presented by the counsel for the purchaser, and amongst others, the following: I. That the estate and interest of Mrs. Edwards is derived and held under certain indentures, (setting them out,) and that under them she doth not hold an estate in fee simple in the premises, but her estate is subject to certain powers, remainders and conditions in favor of persons not parties to the suit in partition ; and If. That the femes covert, parties to the partition, are not precluded of their estates and claims in and to the premises. In respect to which objections, he expressed the opinion, that a good title to the premises would pass to the purchaser under the proceedings in the partition suit, and by virtue of the conveyance excuted by Mrs. Edwards on the 22d December, 1837. The master further reported, that on the hearing before him, the purchaser further objected : I. That in determining upon the validity of his objections formerly taken, the master ought not to take into consideration the deed of Mrs. Edwards, or permit the complainants after the time which had elapsed since the sale, to avail themselves of any deed showing a purchase of an outstanding claim or right, and thereby make a title to the lots sold, which did not exist .at the time of the master’s sale; and II. That if.the complainants were permitted to make a title which did not exist at the time of the purchase, the master ought to take testimony (which was accordingly offered to be given,) showing a depredation which had taken place in the value of the lots since the same were struck off to the purchaser: which objections the. master reported he overruled as not embraced within the order of reference, and therefore not within his power to hear. To this report both parties excepted : the complainant excepted, because the master had not reported that the title was sufficient without the deed or appointment of Mrs. Edwards.; and the purchaser excepted, because the master had not reported that a good title would not pass under the proceedings in the suit, or otherwise, and because he overruled the additional objections made on the hearing, and refused to receive testimony in support of the second objection. The case was heard before the vice chancellor on the 28th February, 1838, on the master’s report in respect to the title, and the exceptions to the report, on which occasion was offered and read subject to objection, an affidavit of the purchaser, that he purchased the lots struck off to him with a view to a resale; that about 1st May, 1837, could he have given a good title, he could have .obtained for the lots $6600; that from about 1st June, 1837, the lois have been gradually and extensively depreciating in value, and that since 1st October, 1837, they have not been worth more than $4500, and on the 24th May, 1838, the vice chancellor denied the motion to compel the purchaser to take the title and complete his purchase ; he holding that the exception which related to the inchoate rights of dower of the femes covert was well taken, although they were parties to the record, in conformity to a former decision made by him in 1 Edward's Ch. R. 565. From this decretal order, there .was an appeal to the Chancellor, who, on the 29th March, 1839, affirmed the order of the vice chancellor, but on a different ground from that taken by him. The chancellor held, that a sale under a judgment or decree in a partition suit bars or extinguishes the contingent right or interest of the wife of a tenant in common, where she is made a party to the suit with her husband, and that, whether she be an infant or adult; but he further held, that such great delay had occurred in perfecting the title, that the purchaser ought not to be compelled to complete the purchase, and, for the latter reason, affirmed the order appealed from. See the opinion of the chancellor, 7 Paige, 386. From the decree'of affirmance, the complainants below appealed to this court. Besides the appeal in this cause, there were four other appeals resting upon precisely the same grounds. It is necessary, to the full understanding of the points made by counsel on the argument and the opinions delivered in this court, that it should be further stated, that the parties to the suit in partition derived their title, either by devise or descent, since 1830, and that the marriage between David S. Jackson and his wife Sarah took place subsequent to the commencement of the suit in partition. The case was argued in this court, by</p>

<p>Whether a party sued at law by a co-partnership can avail himself of the answer of one of the members of the firm to a bill of discovery filed after the dissolution of the firm, and when the interest- of such member in the subject matter of the suit has ceased, quere.</p> <p>Whether a defendant who omits to file such bill of discovery, during the pendency of the suit at law, can subsequently file a bill in chancery for relief, quere.</p>

<p>A feme covert may contract a debt in regard to her separate estate, and may even become the debtor of her husband, for money borrowed of him to improve such estate ; and payment of the debt thus contracted will be enforced in equity as a lien upon the estate, unless by the terms of the donation the feme be prohibited from charging the -estate..</p> <p>A debt thus contracted by the wife, may be discharged by a donatio causa mortis, as by the declaration of the husband that the money was her’s, and by destroying the bond, the evidence of the debt.</p> <p>If from the circumstances of the case there be reason to doubt the competency of the husband to dispose of his property, on the question coming before the chancellor, it seems a feigned issue should be awarded to try the question.</p> <p>The incidental power of the court of chancery to award an issue is not affected by the provisions of the revised statutes on the subject of feigned issues in certain specified cases.</p> <p>Long continued inebriety, although resulting in occasional insanity, does not require proof of a lucid interval to give validity to the acts of the drunkard, as is required where general insanity is proved on a question of devisavit vel non. Where the indulgence has produced permanent derangement of mind, it would be otherwise, 'it seems.</p> <p>The act of a party addicted to intemperance, in disposing of his property, will not be invalidated on the ground of undue influence exercised over him by the inmates of his family, where the influence arises from kind offices springing from attachment or affection ; to vitiate the act, the influence must be shown to have arisen from threats, force or coercion, destroying free-agency, and the boon to have been obtained by such coercion, or by importunity that could not be resisted—producing compliance for the sake of peace.</p>

<p>Appeal, from- chancery.- The appellants filed a bill in' chancery to foreclose a mortgage executed to their testator by Wesson Briggs, on the 7th February, 1632, of a tract of 1000-acres of. land situate in the county of St. Lawrence ^ which mortgage was duly recorded. The mortgagor derived his title from John Tibbits, by deed bearing date 9tb November, 181 Oj which was duly recorded, and was possessed of the premises until his death in 1831. After his death the bill for the foreclosure of the mortgage was filed, and' his children as his heirs at law were made parties defendants-.- They put in an answer alleging that in the month of July, 1801, John Tibbits, their maternal grandfather, executed a deed to his daughter, their mother, Polly Briggs, the wife of the mortgagor, conveying to her in fee the whole of the premises covered by the mortgage except 200 acres which he reserved; that in August, 1802, the deed of July, 1601,'was destroyed-and a new. deed executed by their grandfather to their mother of the whole tract of 1000 acres. That their mother died in the month of March, 1810, and that in the ensuing month of November, whilst they were infants, their father surrendered the deed of 1802, and took a deed to himself of the tract conveyed to their mother. Proofs were taken and the execution of the two deeds to Polly Briggs satisfactorily proved, the latter in the month of August or September, 1802; and the surrender of the deed of 1802, and the execution thereupon of the deed of 1810, to the mortgagor, was shown by the declarations of both the grantor and grantee of the last deed.</p> <p>The principal question in this case arises upon the con- , struction of the recording acts. That portion of the state which is now known as the cou-nty of St. Lawrence was, on the organization of the county of Oneida, on the 15th March, 1798, embraced within the bounds of Oneida. See Statutes of this state (21 sí sess.) Loring Andrews’ erf. p. 295. Whilst this territory thus formed part of Oneida, an act was passed on the 3d April, 1798, requiring all deeds of land situate in certain counties, (amongst which Oneida but not Clinton was enumerated,) executed after the 1st February, 1798, to be recorded upon pain of being adjudged fraudulent and void against subsequent bona fide purchasers and mortgagees, see Statutes as above, p. 453. On the revision of the laws in 1801, the act last mentioned was incorporated as a section to a general act concerning the proof of deeds and conveyances, passed 6th April, 1801, which, however, by a' subsequent act of the same year, it was declared' should not go into effect until the first day of October, 1801. See Statutes, vol. 1 ,p. 479, § 4, and p. 619 of the same vol.Webster’s ed. Three days previous to the act of 6th April, 1801, by ‘an act to divide this state into counties,’ the portion of the territory of the state now known as the county of St. Laiorence was embraced in the county of Clinton. See Statutes, vol. 2, p. 5, Webster’s ed. On the 3d day of March, 1802, the county of St. Lawrence was erected, Statutes, vol. 3, p. 5, same ed.; and on the 10th April, 1805-, the fourth section of the act of 1801 was extended to the county of St. Lawrence, and it was enacted that all conveyances of land situate in t.'.at county, executed since 1st October, 1802, should be recorded on or before the 1st January, 1806. iSlee Statutes, vol. 4, p. 301, §3, same ed. Thus it will be seen that at the time of the execution of the first deed to Mrs. Briggs, the premises in question were situate in the county of Clinton, which was not a recording county, and that the second deed was executed previous to the time limited by the act of 1805, as the period designating deeds which should be recorded before 1st January, 1806. Then came the act of 1813, (l jR. L. 370, § 4,) requiring all deeds of lands situate in certain counties, amongst which is enumerated St. Lawrence, executed after 1st February, 1799, to be recorded upon pain of being adjudged fraudulent and void against subsequent bona fide purchasers and mortgagees.</p> <p>The vice chancellor of the fourth circuit held that under the registry acts of 1805 and 1813, the deed of 1802 to Mrs. Briggs, not having been recorded, was void as against the mortgagee, relying upon the opinion of Thompson, J. in Barker v. Jackson, Paine’s U. S. G. C< Rep. 559, 571, and accordingly decreed a foreclosure. The defendants appealed to the chancellor, who reversed the decree of the vice chancellor. «See the opinion of the chancellor, 6 Paige, 327 et seq. Whereupon the complainants brought an appeal to this court. The case was argued here by</p>

This was a bill to foreclose three mortgages executed by the respondent and two other persons.

A. Stewart, the plaintiff in person, moved to incorporate the case made in this cause into the record as a bill of exceptions, in order that he might review upon writ of error the decision at the circuit, which was sustained by this court.

Motion to set aside a writ of fi. fa. for irregularity. A deputy sheriff of Oswego received the writ, with a letter from the plaintiffs’ attorneys, directing him to endorse it as received January 6, 1840, at 9 A. M. The letter was dated the 3d January, and mailed before judgment was perfected. It enclosed the writ, with the intention to perfect the judgment at the time when the sheriff was directed to endorse the writ as received.

Motion to set aside a Ji. fa. or for a rule to enter satisfaction on the judgment record.

Motion in behalf of the plaintiff for general costs against an executor. The suit was in assumpsit on an unliquidated demand, and was referred by order of the circuit judge. The referees reported in favor of the plaintiff for $1209. The defendant had taken out letters testamentary, but omitted to file an inventory, or give notice to creditors to present their claims, 8fc., according to the statute, 2 JR. S. 29, § 34, 2nd ed. There were ample assets which had been collected.

Motion in behalf of the defendant, to set aside a judgmen entered on a report of referees ; and for leave to move to set aside the report on the merits. The report was delivered to the plaintiff 28th October, 1839; and was in his favor for $1017,29. Affidavits to set it aside on the merits were drawn and served on the second day of November; and the cause placed on the calendar for argument at the next January term.

Motion to stay proceedings - until the plaintiffs file security for costs. One of the plaintiffs- (Ferriss). resides in the state of Ohio ; the other (Eaton) in this- state. The action is covenant on a policy of insurance, the interest in which was assigned to two persons in trust for certain creditors of Ferriss; and which assignees brought this suit, and are prosecuting it for the benefit of such creditors. The assignees, or one of them, reside in this state.

Motion to stay execution. This court gave judgment against the defendants, on a special verdict, in a mandamus case and they brought error. A motion is now made for a special order to stay execution until the decision of the court for the correction of errors. A bond with sureties has been executed securing the costs in error, and filed with the clerk.

Corporation election. The Union Insurance Company . was incorporated in 1818; its charter was amended in 1=819, and was extended in 1837. Statutes of 1818, p. 63 ; 1819, p. 130; 1837, p. 110. At the annual election for twenty-three directors of the company, held on the 13th day of January last, some of the stockholders voted for the whole number of persons to be chosen directors; others voted for only twenty-two, and some Voted for a less number.

Motion to set aside a default and subsequent proceedings for not declaring in an action of replevin.

Landlord and tenant. Writs of ji. fa. upon judgments, .amounting to $800 and upwards, in favor of the above plaintiffs, were issued to the sheriff of Franklin county, in November, 1839, returnable in January following. The sheriff levied, and on the 15th January, 1840, sold all the personal property of the defendant,, who was insolvent, for $163.

The plaintiffs recovered a judgment against the defendants which was docketed May 7, 1819. They sued out a scire facias to revive the judgment, returnable at January term, 1839.

Ejectment for non-payment of rent of demised premises, the lease having been assigned. The premises being wholly unoccupied, there being no dwelling house or other building thereon, and the assignee of the lessee having no place of residence known to the plaintiff, and he not being able to make personal service of the declaration, caused it to be served by affixing a copy, with the proper notice, in a conspicuous place on a post standing on the demised premises.

Special bail. The defendant became special bail for Asa F. Cochrane, a non-resident debtor in an action upon contract, ,at the suit of the plaintiff, brought in the New-York common pleas. In January, 1839, judgment was recovered in favor of the plaintiff. In June following a ca. sa. against the principal was returned non est. In December, 1839, the plaintiff commenced this action against the bail, who obtained an order enlarging the time to surrender until May last.

The plaintiff recovered judgment against Flannely in the New York common pleas. Flannelly brought a writ of error to this court, and on that occasion he, with the two other defendants in this suit as his sureties, executed a bond to the plaintiff pursuant to the statute. 2 R. S. 595, 26, 28. The writ of error was afterwards quashed, and the plaintiff brought this action on the bond.

The plaintiff being a non-resident, the defendants obtained an order that he file security for costs. 2 R. S. B20, tit. 2, The plaintiff’s attorney became surety by executing the proper bond, and justifying pursuant to the statute. The defendants now moved for judgment of non-pros, on the ground that an attorney cannot become such surety, and likened it to the case of special bail.

Motion to change venue. The venue was laid in Jefferson county. The declaration was served on the seventh day of May. On rthe twenty-seventh day of M ay the defendant pleaded and gave notice of motion to change the venue to Montgomery, accompanied with an order to stay proceedings. The circuit in Jefferson was appointed to be held on the fifteenth day of June.

<p>The retainer of an attorney at a distance from the residence of the defendant and of the plaintiff’s attorney to put in a plea, when it is manifestly done for the purpose of disabling the plaintiff’s attorney from noticing the cause for trial at the circuit immediately after the joining of the issue, is a fraud upon the practice of the court, and a default entered as for not pleading, will be sustained as regular, notwithstanding a plea is served previous to the expiration of the time to plead.</p>

A judgment having been obtained in the superior court of the city of New-York by Bettner against E. Fenner and three others, E. Fenner alone brought error. He assigned infancy for error, Oct. 4, 1839, a copy of the assignment being served the same day on the attorney for the defendant in error.

<p>On serving replications the plaintiff may deliver a notice of trial, but the proceeding is subject to be defeated or modified by the subsequent delivery of a bona fide demurrer and the decision thereon. If after the notice and before the trial, the defendant demur to some of the replications and issues of fact be joined on others of the pleas, the plaintiff may proceed and take a verdict, notwithstanding he has not joined in demurrer; but he holds the verdict dependent upon the event of the demurrer.</p> <p>Under peculiar circumstances, a notice of trial may be served as late as eleven o’clock, P. M.</p>

A. Taber,- for the defendant in error, moved to quash the writ of error, as having been irregularly issued. McClaughry sued Clark in a justice’s court and recovered judgment. Clark appealed to the common pleas, where McClaughry again recovered ; but certain exception^ were taken by Clark, on the trial which took place in December, 1839.

<p>Where a party intends to appeal from the decision of a circuit judge granting or refusing a new trial, an order to stay proceedings must be obtained within eight days after the malting and signing the decision.</p>

<p>Where trick and management is resorted to in the retainer of an attorney and in the service of a plea for the purpose of delaying the plaintiff and preventing a trial, and the plaintiff in consequence thereof, after due diligence, is unable to serve a notice of trial in season for the circuit where the venue is laid which he might have done but for such management, the retainer and plea may both be treated as nullities, and the default of the defendants entered as for not pleading.</p> <p>Jt seems that a frivolous demurrer put in to prevent the trial of a cause may be disregarded, and the frivolousness of the pleading will be deemed a sufficient answer to a motion to set aside an inquest as irregularly taken.</p>

<p>An order to stay proceedings granted to enable a defendant to move for Change of venue cannot be disregarded by the plaintiffs, although its effect be to throw the cause over both circuits—the circuit, in the county where the venue is laid, and in the county to which it is proposed to be changed. The remedy of the plaintiff in such case is to obtain a revoCatur of the order.</p>

On motion to change the venue in this cause, and on motions in several other suits where an affidavit of merits was necessary, it was objected that the affidavit did not conform to the 61st rule, .which requires the party to swear “ that he has fully and fairly stated the case to his counsel.” The affidavits were, that the defendant, had stated his case, this case and his defence to counsel,

<p>In a suit commenced previous to the act of 1840, a plaintiif is not obliged to wait thirty days from the entry of the judgment, before issuing an execution.</p>

Discovert of books, and adjournments by referees. The defendant pleaded the general issue and gave notice of set off, and furnished a bill of the particulars of his set off under a judge’s order. On the 3d c^f March last, the cause was referred to three referees.

Costs against administrators. The plaintiff was the payee and owmer of the joint and several promissory note-for $500, made by Jeremiah Iiine, the intestate, and by Charles W. Hine. On the first day of May last, and within the time prescribed by the statute for presenting claims, 2 JR. «S'. 88, § 34, the plaintiff served the administrators with a copy of the note, and his own affidavit of the amount justly due, 35, and required payment.

Costs against executors in error. The executors sued Judah in the marine court of the city of New-York, where they were non-suited. On certiorari, the superior court of the city of New-York reversed the judgment. Judah then brought error to this court, where the judgment of the superior court was reversed, and that of the marine court affirmed.

<p>A copy of a promissory note attached to a declaration containing the common counts, with a notice to the defendant that the suit is brought against him as a party to the note, is not enough to authorize the plaintiff to disregard an order for a bill of particulars : to justify such a course the note must be stated to be the only demand on which the plaintiff claims to recover.</p>

<p>A plaintiff cannot disregard a plea, and treat it as a nullity, for the want of being accompanied with an affidavit of merits, unless it appear by the declaration or the plaintiff’s bill of particulars that the written instrument or record declared upon is the only cause of action upon which the plaintiff relies.</p> <p>A notice attached to a declaration on the common counts, that the suit is brought against the defendant as a party to two promissory notes, of which copies are given, is not such a specification of the only cause of action on which a recovery is claimed, as will authorize a plaintiff to treat a plea as a nullity, which is not verified by affidavit.</p>

<p>Where the defendant before the expiration of the rule to plead in two suits brought against him, obtained an order to stay until a motion could be made to consolidate, and the motion was made and granted after the rules to plead had expired, and the plaintiff forthwith entered the defendant’s default for not pleading, it was held , that the default was regularly entered, and that the plaintiff was entitled" to retain it, notwithstanding that on the same day, though after the entry of the default, the defendant served a demurrer ; the court holding that the defendant should have pleaded before the motion was made for consolidation.</p>

Motion to set aside default and subsequent proceedings, for irregularity, and also on the ground of merits. The declaration was served on the 24th June last.

<p>In suits' commenced previous to the 14th May, 1840, it is not necessary that there should by sixty days between the teste and return of executions. An execution though tested on Sunday is amendable.</p>

This was a motion in behalf of David Rogers, to set aside a judgment entered as upon confession, in November, 1837. The matron was founded on the alleged want of authority. The counsel for David Rogers relied on his affidavit, which was taken before the Hon. Fitz Wilhelm Didrickson, judge and recorder of the town court of Christianstadt, in the island of St. Croix, in the dominions of the king of Denmark, on the 5th day of May$ 1840.

Taxation of costs. In assumpsit, the plaintiff recovered a verdict for $ 135. The commissioner taxed the costs at the full rate allowed by the act of 1S40, p. 327, § 1, refusing to deduct one third under 11, sub. 2. He also taxed for prospective transcripts and postage of same, {$10.

<p>The Manhattan Company in the city of New-York have not the power to take a public street or any part thereof, for the purpose of a reservoir to supply the city with water.</p> <p>It seems they may occupy streets temporarily, whilst laying aqueducts,&c.</p> <p>It seems, further, that the discretion of the company in appropriating private property subject to valuation and payment of damages, will not be .controlled by the supreme court on a motion for the appointment of commissioners of estimate j if there be an abuse of power, the party aggrieved must seek his remedy otherwise.</p>

<p>Where it is intended to’apply to the court to have the ñamé of an attorney stricken from the rolls, the proper course of proceeding is, not to give notice of the motion, but to present the evidence relied on to the court, who will direct a rule to show cause to be entered, if a case proper for the action of the court lie presented.</p>

Error from the supreme court, Russell brought an action of replevin against Minor for a large quantity of paper, and declared in the detinet only.