Volume 23 — Wendell's New York Reports

Information in the nature of a quo warranto. The attorney general on the relation of E. P. Upham filed an information alleging that the defendant had usurped, intruded into and unlawfully held the office of treasurer of the county of Chautauque ; and that the relator was rightfully entitled to the office.

This was an action on a policy of insurance tried at the Oneida circuit in October, 1838, before the Hon. Philo Gridley, one of the circuit judges. The plaintiff claimed that the defendants, on the 30th March, 1837* insured against fire, four wooden stores belonging to him, situate in Utica* for the term of one year, and underwrote the sum of $2,000 ; and that on the next day the stores were wholly consumed by fire.

Libel. The plaintiff, after stating in the introductory part of his declaration that he was a minister of the gospel, *being a [ *27 ] priest of the denomination called Roman catholic ; that he had been regularly appointed to discharge the duties of priest of the Roman catholic church of the village of Oswego ; that he had deservedly obtained the good opinion of his neighbors, of the members of the Roman catholic church at Oswego, and of the bishop and ecclesiastical…

Demurrer to declaration. The plaintiffs declared in covenant, setting forth, in the first place, an indenture of lease in ordinary form, of certain premises, reserving an annual rent of $1200, payable quarterly, and then alleging that after the making of the lease, and during the term thereby granted, it was covenanted and agreed by the defendants by an endorsement in writing made on the lease, signed and sealed by them, that in consideration that the plaintiffs had erected…

<p>Tn a suit under the acts of 1832 and 1835, against the drawers and acceptors of a bill of exchange, sued jointly, the plaintiff is entitled to recover, notwithstanding that he joins with the money counts, other counts in assumpsit, as counts for goods sold or work done.</p> <p>Where there is no allegation of fraud or surprise, it is a sufficient compliance with the statutes relative to taking the testimony of witnesses out of the state, that the judge, before whom the interrogatories are settled, endorse his allowance of the same upon the commission by referring to them as annexed to and accompanying the commission.</p> <p>The court will intend that the oath administered to witnesses named in a Commission publicly administered, when the commissioners certify that they administered an oath to the witnesses, that the answers given by them, to the interrogatories proposed should be the truth, &c., and such oath will be deemed to apply to the interrogatories on both sides.</p> <p>It cannot be urged on the trial of a cause as an objection to the introduction of depositions taken under a commission, that the depositions were not deposited in a post-office immediately after they were taken. The statutes in that respect are merely directory to the commissioners. If there be unreasonable delay in the return of a commission, the remedy of a defendant is to move for judgment as in ease of nonsuit, and of a plaintiff, for leave to proceed to trial notwithstanding the commission.</p>

This action was tried at the Oswego circuit, in December, 1838, before the Hon. Phido Gridley, one of the circuit judges. The defendants, on the 7th December, 1836, entered into a policy of insurance against fire, to the amount of $4000, upon a stone flouring mill, and a framed ware-house attached thereto, belonging to the plaintiff, situate at Oswego, for one year from the date of the policy. The mill took fire on the 23d October, 1837, and was injured to a great amount.

Demurrer to declaration. This was an action on a recognizance, entered into by the defendant, on her conviction as a disorderly person. 1 R. S. 638.

This was an application to set aside tbe report of a referee. The plaintiffs were merchants in New-York, and the defendants merchants in Hamilton, Madison county. The action was brought to recover the amount of two bills of goods, amounting to about 800, which the plaintiffs had sold the defendants in May and September, 1836, on a credit in each case of four months.

Counsel fees. The plaintiffs are partners as attorneys and counsellors at law, and this action was brought by them, to recover for the services of Mr. Stevens, as a counsellor, rendered for the defendant, in arguing in the court for the correction of errors, two causes in which the defendant was a party. For those services, the plaintiffs claimed §300. They also claimed §50, for preparing and drawing maps, to be lithographed for the use of the court on the argument.

To a seire facias quart executionem non on a judgment in favor of John A. Willink and Daniel Willink, against James Renwick and Robert J. Renwick, one of the defendants upon whom the seire facias was served, pleaded that John A. Willinh ought not, together with Daniel Willink, to have and maintain the action, because after the recovery and before the issuing of the writ of scire facias to wit, on the 22d October, 1819, John A. Willink, being an insolvent debtor within the…

Question on sale of real estate. On tbe twenty-fifth day of December, 1837, an agreement under seal was entered into between the par- [ *67 ] ties, whereby it was stipulated on tbe *part of Halsted to sell to Traver a farm containing about 163 acres of land, to be conveyed as described in his deed without survey, at the rate of $70 per acre, and that on or before the fifth day of April then next, on receiving from Traver the price of $70 per acre, that he would, at his own…

<p>This was an action of assumpsit, tried at the Erie circuit, in January, 1839, before the Hon. Nathan Dayton, one of the circuit judges.</p> <p>The suit was brought on a note made and dated at Buffalo, in this state, on the 8th July, 1836, for $>2500, payable twelve months after date, at the Commercial 'Bank in Buffalo, in Canada money. The note was made by James Sloan and John Wilkeson, payable to the order of Johnson, Hodge & Co., which firm was composed of E. Johnson P. Hodge and M. P. Johnson; by the latter of whom the note was endorsed in the name of the firm.</p> <p>The suit was brought against the makers and endorsers jointly. [ *72 ] The declaration contained a special count upon the note, and *also the common money counts. After proving the signatures of the defendants, the protest of the note and notice to the endorsers, the plaintiff’s counsel offered to read the note in evidence to which the defendant’s counsel objected, insisting, that being payable in Canada money, it was not negotiable ; that Canada money meant bills of the Canada banks. The plaintiff thereupon offered to prove that at the time of the making of the note, Sloan and Wilkeson, the makers thereof, desired to have it drawn payable in Canada bank bills, but that he objected, and insisted that it should be made payable in Canada money ; which testimony was objected to, and rejected. The plaintiff thereupon, under a written consent of the defendants, read in evidence a copy of an act of the provincial parliament of Upper Canada, passed 20th April, 1836, fixing the weight and rate of certain gold and silver coins, and declaring that the same should pass current and be deemed a legal tender in the province, in payment of all debts and demands ; as thus : “ The British guinea weighing five penny weights nine and a half grains, Troy, at one pound five shillings and six pence ; the British sovereign, weighing, &c. at, &c.; the Eagle of the United States of America, coined before, &c. weighing, &c. at, &c.; the Eagle of, &c. coined since, &c. weighing, &c. at, &c.; the British crown at six shillings; the Spanish milled dollar at, &c.; the dollar of the United States of America at, &c.; the Mexican dollar at,” &c., and after reading the same, rested. The counsel for the defendant then offered to prove the meaning of the words Canada money, as generally understood at Buffalo by persons in trade there; which evidence was objected to by the plaintiff’s counsel, but the objection was overruled by the judge, and the defendants thereupon called several witnesses, who proved that Canada money was understood at Buffalo to mean hills of the Canada hanks. Upon which evidence the judge ordered a nonsuit to be entered. The plaintiff asks for a new trial.</p>

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. The plaintiff declared on the money counts and attached to the declaration the copy of a promissory note made by the defendant for $1100, bearing date 24th April, 1837, payable to A Wheeler & Son, on demand, with interest.

This was a motion for a new trial, in a.cause in which the plaintiff submitted to a nonsuit. The action was^ against the defendant, as the second endorser of a promissory note.

This was an action of debt to recover a sum of money fixed upon as liquidated damages, in an agreement under seal.

. This was an action on the case for a malicious prosecution tried at the Chenango circuit in August, 1838, before the Hon. Robert Monell, one of the circuit judges. Peter J. Betts, one of the defendants, as the agent of Peter Betts, the other defendant, sued out an attachment from a justice’s court against the plaintiff, on the allegation that the plaintiff was indebted to Peter Betts, and had departed the county of Chenango with the intent to defraud his credit, ors.

<p>A statute of one of the states of the Union, authorizing proceedings against absconding debtors, and an assignment of their property for the benefit of their creditors, being in the nature of a bankrupt law, the assignment does not work a legal transfer of the property of the debtor, so as to render invalid a conveyance of property made by him, in another state to a citizen of such state, for a bona fide consideration; and such assignment, in one state, not being obligatory upon the citizens of another state, is not binding upon the citizens of the state in which the proceedings are had, in respect to property conveyed to them by the debtor, in another state. It was accordingly held, that the property of an absconding debtor, taken by him from this state, and transferred by him in anQther state, in satisfaction of a judgment there render-eel against him, was not subject to the control of the trustees of his estate, after the property was brought back to this state, although he and the creditor to whom the transfer was made were at the time residents of this state, and the transfer was made after the publication of the notice that an attachment hacl issued.</p>

A motion was made for a non-bailable attachment against a coroner of Niagara county, for not returning an attachment against .the sheriff of that county, and it was also moved that an elizor residing in the county of Albany, be appointed to execute the process, in consequence of the difficulty of having process of this kind served in Niagara,

<p>In the first above entitled cause, the declaration commenced in the name of “ Joseph D. Beers,” described as “ President of the North American Trust and Banking Company, an association doing business in the city of New-York, *under and by virtue of an act of the legis- [ *104 ] lature of the state of New-York, entitled ‘ an act to authorize the business of banking,’ passed April 18th, 1888, who prosecutes for and on behalf of the said associationand then was set forth in the usual form a count on a promissory note by the third endorsee against War- [ *105 ] ner and Ray as endorsers. The declaration *also contained the common money counts, and the insimul eomputassent, alleging the debts to have arisen, and the promises to have been made to “ the said association” and concluded with the words “ to the damage of the said association of five hundred dollars ; and therefore the said plaintiff as president as aforesaid, brings suit, &c.”</p> <p>[ *106.] *The declaration in the second suit was like the preceding, except that it contained only the common money counts, and the count on the insimul eomputassent. To these declarations, demurrers were put in by the defendants respectively. In the first suit, the following causes of demurrer were assigned, viz :</p> <p>*1. It is not shown by the declaration, that the plaintiff Joseph [ *107 ] E. Beers, had any cause of action whatever against the defendants ; on the contrary, all the causes of action therein stated are shown to exist in favor of the association called “ The North American Trust and Banking Company,” or the individuals composing that Association.</p> <p>II. No authority exists in law for the plaintiff to sue the defendants for or in behalf of The North American Trust and Banking Company, or upon promises made or causes of action accruing to the said company. The suit should have been brought in the name of the‘company.</p> <p>III. If the institutions authorized by the act in the declaration mentioned, entitled “An act to authorize the business of banking,” are mere associations of special partnerships of individuals, and are not corporations, then the declaration is defective, because it does not state the persons to whom the several alleged promises therein mentioned, were made.</p> <p>IY. By the laws of this state, no association of persons not incorporated, nor any combination or partnership, are entitled to maintain suits in the name of a president or other officer, or in the name of their firm or association, or in any manner, except in their baptismal and individual names.</p> <p>Y. The institutions or associations authorized and intended to be created by the act entitled “ An act to authorize the business of banking,” are corporations or bodies politic, and the act expressly allows the creation of an indefinite and unlimited number of such corporations, at the pleasure of any persons who may associate for that purpose. The act is therefore a violation of the ninth section of the seventh article of the constitution of this state, and is absolutely void.</p> <p>The declaration in the second above entitled cause was *in its [ *108 ] commencement and conclusion similar to the declaration in the first cause. It contained only the common money counts, and an insimul eomputassent. The defendant here also interposed a demurrer assigning special causes, similar to the special causes in the first count; the fourth special cause being in these words: “ For that the act in the declaration mentioned, entitled ‘ An act to authorize the business of banking,’ so far as the same proposes to authorize this suit, is a violation of the provisions of the constitution of this state, respecting the creations of incorporations, and is void ; and also that the said act is void, because the same did not receive the assent of two-thirds of all the members elected to the legislature of this state, by which legislature the said act purports to have been passed.”</p> <p>The two demurrers were brought to argument before the supreme court, at the January term, 1840, and judgment given in both cases for the plaintiffs. The court referred, for the reasons of the judgment, to the opinions delivered by Chief Justice Nelson, Mr. Justice Bronson and Mr. Justice Cowen, in the case of Thomas v. Dakin, 22 Wendell, 9 et seq. Both causes were removed by writs of error to the court for the correction of errors, and were brought on to argument on the 18th February, 1840. The argument was conducted by</p>

Information in the nature of a quo ivarranto. In January term, 1839, the attorney general filed an information in the nature of a quo warranto, against the Kingston and Middletown Turnpike Road Company, charging them with usurping the liberties, privileges and franchises of being a body politic and corporate, by the name of the Kingston and Middletown Turnpike Road Company, and by that name to construct and maintain a turnpike road within certain *bounds, (specifying the…

<p>Information in the nature of a quo warranto. The attorney-general, in January term, 1838, filed the information in this case, charging that the directors and company of the Bristol and Bensselaerville turnpikeumad claimed, and for five years then last past, had claimed to be a body politic and corporate, by the name of “ The Directors and Company of the Bristol and Bensselaerville Turnpike Boad,” and by that *name [ *224 ] to have the franchise of constructing and maintaining a turnpike road, beginning at a certain point in the county of Greene, and terminating at a certain other point in the county of Albany, and to levy, collect, and receive tolls from all persons using such road ; all which privileges and franchises he charged to have been usurped.</p> <p>The defendants pleaded that by an act of the legislature, passed 25th March, 1808, and by another act amendatory of the first, passed 3d March, 1809, they were constituted and declared to be a body corporate and politic in fact and in name, by the name and style of “ The Directors and Company of the Bristol and Bensselaerville Turnpike Boad that within two years after the passing of the acts, they commenced operations, and within five years from the same period constructed the road specified in the said acts, and completed the same; that after such completion, to wit, on, &c. they gave notice thereof to the then governor of the state, who appointed three discreet freeholders to view the road, and report whether the same was completed in a workmanlike manner, according to the true intent and meaning of the act relative to turnpike companies, passed 13th March, 1807; that a favorable report was made, and the governor thereupon granted a license authorizing and permitting the defendants to erect a gate or turnpike across and upon the road ; and that they accordingly erected a gate and collected toll. Whereupon they prayed judgment, &c. The defendants also alleged, that on the sixth day of April, 1837, an act of the legislature of this state was passed, authorizing them by their corporate name, to make such alteration in the location of their road as would lessen its ascents and descents, preserving the general course of the road, and concluded by praying judgment, &c.</p> <p>To this plea, tho attorney-general put in several replications: in the fifth replication, he averred that the defendants did not at any time cause the road to le faced with gravel or broken stone, of a depth of not less than nine inches, in such manner as to secure a firm and even surface, ris- £ *225 ] ing in the middle by a gradual arch, sixth replication : that *the defendants did not at any time within seven years after the passage of the act of 25th March. 1808, caused the road to be faced with gravel, &c. as in last replication. Seventh replication : that the defendants did not, during the whole or any part of the time mentioned in the information, keep and maintain a road, twenty-four feet in width of which was bedded with stone, gravel, sound wood, or any other hard substance, well compacted together, and of sufficient depth to secure a good and solid foundation to the same. JEigkth replication: that the defendants did not, during the whole or any part of the time mentioned in the information, keep and maintain a road faced with gravel or broken stone, of a depth not less than nine inches, in such manner as to secure a firm and even surface, rising in the middle by a gradual arch. The tenth replication was in these words: “ And the said attorney general for the said people further saith, that the said directors and company of the Bristol and Rensselaerville turnpike road did not furnish, nor did they cause to be furnished the lower side of a road, beginning at, ¿'c. (describing tho road authorized by the act of incorporation,) where the same was not of full width, nor hath such road been so furnished, nor is it now, furnished with a strong and sufficient fender or railing of the height of at least four feet above the surface of the said road, and this, &c. wherefore, &c. To these replications, the defendants interposed separate demurrers.</p>

<p>Information in the nature of a quo ivarranto. In July term, 1837, the attorney-general filed an information in this case charging the company with with usurping the liberties and privileges of a turnpike company: to construct a road, erect turnpikes thereon and collect tolls from passen- [* 255 ] gers. The *defendants pleaded an act of the legislature passed 2d April, 1805, incorporating them as a turnpike company by the name now used by them, conferring upon them the privilege of constructing a road between certain points of territory, and upon the same being completed and approved and a license obtained by the governor of the state, to erect gates thereon and collect tolls from travellers. They then allege that they completed the road ; that it was viewed by commissioners and approved by them, and that a license was obtained from the governor, &c. To this plea the attorney-general interposed six replications specifying various defects in the original construction of the road, and that such defects still continued to exist; he also put in a seventh replication in these words : “ And the said attorney-general for the said people, further saith, that the said President, Directors and Company of the Hillsdale and Chatham Turnpike Road have not done or performed all those acts, duties, or things, or any of them, which were required of them in and by the said act of incorporation set forth in their said plea and the several acts amendatory thereof, either in working, making, constructing, completing, finishing, or keeping in repair said turnpike road, and this, &c. wherefore, &c.” To the seventh replication, the defendants rejoined in terms as general as the replication that they had performed, &c. concluding to the country. Issues of fact were also joined upon the other replications, and the cause was brought to trial. A special verdict was found, in which among other things the jury say, “ That the bridges on said road are not and have not been built and kept up by the said President, Directors and Company according to law; but on the contrary, the bridge on said road at Chatham-Four Corners was carried away by a freshet in March, 1836, and -not rebuilt until the month of June, 1837 ; and that the bridge on the eaid road in Chatham, near J. J. Yan Yalkenburgh’s house, and the bridge on said road in Austerlitz, were also carried away by a freshet at the same time and .permitted to remain in that situation for more than one year.” (Also) “ That said road was impassable by the destruction of the bridges, and remained [ *256 ] so for more than *the space of one year, and the gates of said road were raised for the same length of time from the-- day of-1836, to the-day of-1837.” (Also) “ That two persons were elected directors of said company and acted as such on, &c., who were not at the time of their election or during their term of ofSce stockholders.”</p> <p>The facts found by the jury as above stated, were all found under the seventh replication, the other replications having no reference to those facts; and as the above finding only is passed upon by the court, the verdict of the jury upon the other issue is not stated.</p>

This was an action of covenant, tried at the Oswego circuit, in June, 1839.. Held: and disposed of, and of defining the respective rights and duties of the said Lewis, and of the subscribers in regard to the said property, it is hereby declared to be mutually understood, stipulated and agreed upon, by and between the said Lewis and the subscribers, in manner following, viz. First.

This was an action of assumpsit, to recover damages for not delivering wheat pursuant to contract, tried at the Chemung circuit in October, 1887, before the Hon. Robert Monell, one of the circuit judges. A witness for the plaintiffs testified that he was the plaintiff’s agent for the purchase of wheat. On the 30th August, 1836, he called on the defendant, who resided in Elmira, to purchase his wheat. The defendant had some wheat in his granary, and was then threshing more.

This was a certiorari directed to “ The mayor, aldermen and commonalty of the city of Albany, and to Charles S. Olmsted, Sylvester Rathbone, William Thorburn, Stephen T. Thorne and James McCabo, members of the common council of said city, composing the committee appointed by said mayor, aldermen and commonalty in common council [ *278 ] *convened, to whom the assessment and remonstrance thereto in the matter of repitching and repaving North-Market street above Lumber-street,…

Error from the Albany common pleas. M’Duffie sued Baker in an action of replevin, for detaining certain articles of silver ware. The defendant pleaded non detinet, and gave notice of special matter.

Error from the New-York common pleas. Kumbel sued Mervin & Goldsmith, and declared in the usual form in debt, on judgment, for $686,T8, recovered by him against the defendants in the New-York com- [ *294 ] mon pleas in December, *1830, in an action of assumpsit. The defendant Mervin pleaded : 1. Nul tiel record ; and 2.

This was an action on the case tried at the Albany Circuit in April, 1839, before the Hon. John P. Cushman, one of the circuit judges. It was brought against the defendants for negligence as common carriers, in the transportation of 1000 bushels of salt, which they had undertaken to carry from New-York to Albany.

This was an action of assumpsit, brought for the recovery of the amount of a promissory note from the defendants, *the payees [ *812 ] and first endorsers thereof, tried at the New-York circuit in March, 1839, before the Hon. Ogden Edwards, one of the circuit judges. The note bears date 5th April, 183T, at New-York, purports to have been made by J. & J. Raymond for the sum of $1343,63, and is payable to John L. Gilliland & Co. three months after date.

This was an action of assumpsit, tried at the Washington circuit in November, 1838, before the Hon. John Willard, one of the circuit judges. The plaintiff claimed to recover on a promissory note, dated February 1, 1837, for $306,71, made by the defendant Young, and endorsed by the defendant Halstead, payable at the Whitehall Bank ninety days after date.

This was an action of ejectment, tried at4fc?'d^ij5harie circuit, in October, 1838, before the Hon. John P. CüSBy^já(Í^fí|%Pj;he circuit judges. The plaintiffs claimed to recover 74 acres of land, part of 308 acres in a tract called Banyar’s patent, granted in 1770, and deduced a regular title to the 3b8 acres, from the original patentees,'by sundry mesne conveyances, to themselves. The defendants, on their part, gave in evidence: 1.

Error, on certiorari. The plaintiffs, commissioners of highways, of the town of Bedford, sued out a common law certiorari, calling upon the defendants, three of the judges of the county of Westchester, to send up for review, the proceedings had by them in reversing an order of the commissioners refusing to lay out a road, and in themselves laying out a road upon the original application made to the commissioners.

[ *329 ] *This was an action of assumpsit, tried at the Westchester circuit, in November, 1838, before the Hon. Charles H. Ruggles, one of the circuit judges. The suit was brought to recover the sum of $300, assessed as the plaintiff’s damages in the laying out of the road, the subject matter of the last preceding case of Woolsey and others v. Tomkins and others.

Demurrer to declaration. The plaintiff declared in an action of covenant on a certificate bearing date 16th August, 1836, executed by the then mayor and clerk of the city under the corporate seal of the city, whereby, after reciting an assessment for widening a portion of Fulton street in Brooklyn, and the sale of a certain city lot for the non-payment of the assessment, and the purchase thereof by the plaintiff for the term of twelve years, in consideration of the payment…

Attachment under § 33, of non-imprisonment act. The plaintiff sued in trespass de bonis asportatis. The defendants interposed two special pleas: 1.

This was an action of assumpsit, tried vat the Kings circuit, in April, 1839 before the Hon. Ogden Edwards, one of the circuit judges. The suit was brought upon a note for $1200, dated 27th' April, 1837, made by Wm. L. De Grauw, payable to the order of Walter N. De Grauw, ninety days after date. It was endorsed by the payee and another person, and a joint action brought against the maker and endorsers. The making, endorsement and protest, were admitted.

This was an action of debt on judgment, tried at the Washington circuit in November, 1837, before the Hon. John Willard, one of the circuit judges. The plaintiff produced the record of a judgment in his favor [ *346 ] against the defendant for $275,16, docketed on the *17th August, 1829, and rested.

This was action of assumpsit, to recover the price of a quantity of ale sold by tbe plaintiffs, brewers, residing at Albany, to the defendant, a dealer in ale, residing at New- Orleans. The contract was made in the city of New-York, in September or October, 1835. The ale was to be good and merchantable, such as the plaintiffs were in the habit of sending south, and was to be delivered on ship board in the city of New-York, at $6,37^ per barrel.

Error from the Dutchess C. P. Flagler sued the Brills in trepass for killing a dog. The defendants pleaded, 1. Non cul. : 2. That the dog was accustomed to come upon the close of the defendants and spoil their grass and corn, and chase, pursue and worry their sheep, &c. of which the plaintiff had notice, and because the dog, on, &c. was in the close of the defendants spoiling their grass and grain, and chasing, pursuing and worrying their sheep, &e. they killed him; 3.

Common law certiorari to three judges of the county of Dutchess, to review their proceedings in laying out a highway. In October, 1838, an application in writing was made to the commissioners of highways of the town of Fishldll to lay out a highway, specifying the termini and the general route of the road.

*Error, from the Albany common pleas. Robert Hays sued [ *364 ] John R. Hays in the court below, and declared against himinassumpsit on the money counts including an account stated. The defendant pleaded the general issue.

Error from the superior court of the city of New-York. This was an action of replevin for taking and detaining 28 barrels of flour, brought by Campbell, Wade & Co., the defendants in error, against the plaintiff in er--for.

Demurrer to plea. This was an action of debt on judgment rendered in the justices’ court of the city of Albany. The plaintiffs declared in the usual form of declaring on judgments in courts of record. Plea nil debet. Demurrer and joinder.

Error from the superior court of the city of New-York. This was aa action of assumpsit brought by Dowd against Tebbetts and Pearce on a bank check dated 28th March, 1837, drawn by Pearce on the Bank of America, payable to the order of Tebbetts, and endorsed by the latter. The plaintiff declared against the defendants jointly on the money counts, and subjoined to the declaration a copy of the check. Tebbetts alone appeared and pleaded non-assumpsit.

Information in the nature of a quo warranto. In October term, 1888, the attorney-general filed an information that on the 4th June, 1888, Hamel Kane had intruded .into the office of police justice in the city of Albany, claiming to be & police justice of the city, and to have and enjoy the rights, &c., and emoluments of tho office, and continued so to do up to [ *415 ] the day of the filing of the information ; and *that during all such time John O. Cole, of the city of…

Indictment for selling lottery tickets. The defendant was indicted in the New-York oyer and terminer.

Slander. The plaintiff, James Dorland, in the prefatory part of the first count of his declaration, stated that he and Gilbert Dorland as security for him, made a promissory note for $117, to one P. Vanderbilt, their proper signatures being affixed to such note ; that he entrusted the note to the defendant to deliver to the payee ; that the defendant did deliv- [ *423 ] er *i't, and then to cause it to be suspected and believed that ho (the plaintiff,) had been and was…

This was an action on the ease for negligence, tried at the Saratoga circuit, in December, 1837, before the Hon. John Willard, one of the circuit judges. The plaintiff was a passenger in a rail road car of the defendants, on his way from Saratoga Springs to Schenectady, on the 31st August, 18.36.

Execution of a sealed contract. The plaintiffs sued the defendant on a sealed contract, whereby they covenanted to sell and convey to him certain lots of land, in the village of Syracuse, for the sum of $11,000, and on payment of that sum to execute to him a good and sufficient deed of the premises, subject to the conditions and exceptions contained in- the original letters patent, and to all taxes assessed or charged thereon, subsequent to the date of the contract.

Error from the Montgomery common pleas. Dygert sued Schenck in a justice’s court, and declared against him in an action on the case, for an injury to a mare occasioned by her falling through a bridge which was out of repair, and which it was the duty of the defendant to have kept in repair. The plaintiff recovered in the justice’s court, and the defendant appealed.

This was an action of ejectment tried at the Rensselaer circuit, in September, 1832, before the Hon. James Vanderpoel, then one of the circuit judges. The plaintiffs claimed to recover the premises in question as the heirs at lato of Prudence Taplin, who they alleged had an estate in fee in the premises by virtue of a devise in the will of her husband, who died seized of the same. The will bears date 8th October, 1807.

This was an action of assumpsit, tried at the Seneca circuit, in November, 1838. The plaintiff and L. F. Stevens, were members of a law firm, and were retained by the defendant to prosecute a *suit in chance- [ 457 ] ry. A bill ivas accordingly filed in the name of Platt alone, as solicitor, the chancery business of the firm being uniformly done in his name.

Demurrer to declaration. The plaintiff, in the first count of the declaration, alleged that the defendants, on the 14th March, 1836, on petition and in pursuance of the statutes relating to the city of Brooklyn, determined to open, lay out and continue Bedford road; that commissioners were after-wards appointed, who, on the 10th October, 1836, reported that three pieces of land, describing them, belonging to the plaintiff, would be required for making the improvement; and…

Error from the New-York C. P. Hale sued Connah in the New-York comm'on pleas, in an action of trover, for 18 rotary pumps taken by a constable by the direction of Connah, under a distress warrant for rent due from one Lovell. The pumps at the time of the distress were in the counting room of Lovell, who occupied a part of a store as the tenant of Connah. The distress was made in February, 1838, and in the course of the same month this action was brought.

Scire eacias. The plaintiff sued out a scire facias guare executioner.n non against the executors of Horace Sexton, tested 18th January, 1838, returnable in the ensuing term, in which it was recited that the plaintiff obtained judgment against Solomon Beebe and Horace Sexton for $286 damages and costs ; that afterwards, on the first dayof January, 1830, Beebe died, leaving Sexton him surviving; and afterwards, on the tenth of day February, 1835, Sexton died, having first…

Error from the New-York common pleas. Jansen sued Acker and Rich in an action of trespass de bonis asportatis. He claimed title to the property under a bill of sale from one James Anderson. On the cross-examination of the plaintiff’s witnesses, the defendant attempted to show the sale fraudulent.

<p>A recovery against the plaintiff, in an action of ejectment brought previous to the time when the revised statutes went into operation, is no bar to an action brought by him since that period, although the judgment in the former action was entered after those statutes went into effect, and the plaintiff did not apply for a new trial in the mode prescribed by those statutes.</p>

Error from the superior court of the city of New-York. ' The administrators of George Watts brought an action on the case in the superior court of the city of New-Yorh against Kinney, for diverting the waters of a stream from the mill of the plaintiffs situate at Newark, in the state of New-Jer' sey, and for obstructing a way leading from the mill.

Demurrer to pleas. The action in this case is trespass, and the declaration contains four counts : 1. For breaking and entering the plaintiff’s cellar and taking and carrying away divers goods and chattels (particularly specifying the articles of property taken) and converting them to the defendant’s use ; 2. For breaking and entering the plaintiff’s dwelling house, and taking, &c. as in first count ; 3.

This was an action of replevin, tried at the Cayuga circuit in May, 1888, before the Hon. Daniel Moseley, one of the circuit judges. The plaintiff and another person sued out an execution from a justice’s court on a judgment obtained by them against the defendant for $36,79, and the same was placed by the justice in the hands of J. M. Stevenson, a constable of the town of Drutus, on the 8th April, 1837.

This was an action of ejectment, tried at the Dutchess circuit, in March, 1839, before the Hon. Charles H. Ruggles, one of the circuit Judges. The suit was brought for the recovery of certain premises demised by Samuel Verplanck, an ancestor of the plaintiffs, to one Abraham Caniff, by an indenture of lease bearing date 10th September, 1808, for the term of the natural lives of the lessee and his wife.

This was an action of assumpsit, tried at the Washington circuit in June, 1838, before the Hon. John Willard, one of the circuit judges.

This was an action of ejectment tried at the New-York circuit in March, 1838, before the Hon. Ogden Edwards one of the circuit judges. The plaintiffs, as the children (and the husbands of some of the children) of Margaret Grenzebaeh, claimed to recover one fifth of the premises in question, devised by the last will and testament of Gasper Somier, to the children of his daughter Barbara if she should have any.

This was an action of ejectment tried at the Albany circuit in October, 1838, before the Hon. John P. Cushman, one of the circuit judges. The suit was brought in 1837, to recover the possession of a tract of land forming a part of and called Van Wié’s point on the Hudson river. The plaintiffs deduced title to themselves, under letters patent bearing date in 1704, granting Killian Van Rensselaer the manor of Rensselaerwyclc.

<p>Information in the nature of a quo tvarranto. The attorney general in October term, 1835, filed an information charging the defendants with claiming, using and exercising without any lawful warrant, grant or ehar.ter, the liberties,privileges and franchises of having and maintaining a bridge over and across Harlaem river, from the city and county of [ *539 ] *New-York to the town of Westchester, in the county of West" Chester, the Harlaem river being a public navigable river, in which the tide ebbs and flows; and of askiug, demanding and taking certain tolls and duties of and from all persons crossing, passing over, or using the said bridge. To"which the defendants pleaded that by an act of the legislature *of this state, passed 31st March, 1790, Leiuis Mor- [ 540 ] h's and his heirs or assigns were authorized to build a bridge from Harlaem across Harlaem river to Morrissania, and that by such act it was directed that the bridge should not be less than thirty feet in tvidth, and that between the centre arches thereof there should he an opening [ *541 ] not less than * twenty five feet, over which there should be a draw not less than twelve feet, for the free passage of vessels ; and that by the act of Lewis Morris and his heirs or assigns were authorized for and during the term of sixty years, to ask, demand and take for the use of the bridge, a toll not exceeding the following rates, to wit, (setting forth the tariff of tolls *'as established by the act:) The defendants then [ *542 ] alleged that by another act of the legislature, passed 24th March, 1795, the width of the bridge was required to be only tioenty four feet; that on the 8th October, 1796, John B. Coles became the assignee of Leiois Morris, and became vested with all and singular the rights of Morris in respect to the building of the bridge, and the having and enjoying the privileges, &c. granted by the act of 31st March, 1790 ; that in 1804 Coles conveyed and transferred certain shares and portions *of his right, [ *543 ] &e. in and to the bridge, and the liberties, privileges and fran-» chises thereof to divers persons, and that they, the defendants, now severally own, in their own rights respectively, certain of the said shares and portions. They then aver that on 1st November, 1796, Coles, at his own expense, built a bridge from Harlaem across Harlaem River to Morrissánia, the width of which was and ever since hath been and still is not less than 24 feet, and betioeen the centre arches thereof there toas and ever since hath been and still is an opening not less than 25 feet, over which there was and ever since hath been and still is a draw not Jess than 12 feet, for the free passage of vessels with fixed standing masts ; they then averred specifically a compliance with all the requirements of the several statutes on the subject of the bridge, and that the bridge had been and still was kept in good and sufficient repair and preservation. The attorney-general demurred to several of the allegations in the plea, and replied to others : among others of the replications is the following: That Coles did not build a bridge from Harlaem across Harlaem river to Morrissania, the width of which was and hath been and is not less than 24 feet, and between the centre arches tohereof there was and hath been and is an opening not less than 25 feet, over which there was and hath been and is a draw not less than 12 feet for the free passage of vessels with fixed standing masts, concluding to the country, and adding a similiter. The attorney general also replied, (after setting forth the act of 1795, which authorizes Coles to erect a stone dam as the foundation of the bridge, with a lock eight feet ivide and forty feet long, for the passage of boats, and requires him, or his assigns to give security to .the treasurer of the state in the penal sum of ¿£4000, that he will erect and complete the bridge within four years, and preserve the same in good and sufficient repair during the term of sixty years,) that neither Coles or his assigns had given such security. To some of the replications the defendants demurred, and upon other issues of fact were joined.</p> <p>The cause was tried, and the jury found : 1. That Coles be- [ *544 ] came vested with the right of Morris to build the bridge *and to demand tolls ; 2. That Coles built the bridge, the width of which was, and ever since hath been, and is not less than 24 feet, and between the centre arches whereof there was until .the time in this behalf mentioned an opening of the width of not less than 25 feet; that since the year 1825, until the commencement of this suit, there was not an opfining betiveen the centre arches of the ioidth of 25 feet, but that at all times since the year 1825, to the commencement of this suit, said opening toas of less width than 25 feet; overvwhich opening there was and ever since hath been and is a draw not less than 12 feet for the free passage of vessels with fixed standing masts ; 3. That Coles sold and transferred divers shares of his right in the bridge and franchise to divers persons, and that the defendants own several of the shares ; 4. That the bridge hath been kept and maintained by Coles and his assigns in good repair; 5. That it hath been in the uninterrupted possession of Coles and his assigns since its erection, and they have during all the time, &c. used and exercised the franchise granted by the act of the legislature of 1st March, 1790, and three other acts in the plea mentioned ; 6. That Coles did give the security required by the act of .1795. Upon this verdict, the supreme court rendered judgment of ouster: see opinion delivered by the Chief Justice, 21 Wendell, 235 et seq. The verdict was entered, upon the record, as above stated, to enable the defendants to sue out a writ of error; the manner in which the jury returned their verdict was rather peculiar, as ‘may be seen in the report of the case in the supreme court, p. 239-. The defendants sued out a writ of error. The cause was argued in this court by</p>

This was an action on & policy of insurance, tried at the Washington circuit in June, 1838, before the Hon. John Willard, one of the circuit judges. The defendants insured the plaintiff against loss or damage by fire to the amount of $1000 on a frame store and $300 on goods contained therein for the term of six years from 3d October, 1836. The store and the goods were consumed by fire 29th April, 1837.

This was an action of assumpsit, tried at the Saratoga circuit in June, 1838, before the Hon. John Willard, one of the circuit judges. William C. Grassie and David Caldwell had been partners under the firm of W. C. Grassie & Co. The partnership was dissolved in November, 1831, when Grassie took all the notes and accounts, and agreed to pay all the debts of the firm.

Error Jrom the supreme court. Acker sued Burrall in the court below, and declared upon 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, $800 in treasury notes, and $150 in gold, by virtue of an execution in favor of John T. Smith, against Horace Janes, and had on request left and permitted the same to remain in the possession of the now defendant Burrall;…

[ *612 ] Error from the supreme court. This was an action of Hrover, brought by Hitchcock against Covell, sheriff of the county of Chemung, for selling, by virtue of an execution against one Hobart Graves, junior, a quantity of merchandize sold by the plaintiff to Graves, which he claimed the right to stop in transitu, in consequence of the insolvency of Graves. In April, 1832, the plaintiff in New-York sold the goods to Graves, who resided at Willardsburgh.

Error from the supreme court. Anderson agreed to let certain premises to Prindle for the term of one year and eight months, at a certain rent, to be paid monthly — written leases to he executed. On the 1st September, 1835, Prindle entered, and then refused to execute a counterpart of the lease, which was tendered to him.

Error from the supreme court. Remer ivas sued as the endorser of a promissory note, made by one James Young, for $560, dated 20th April, 1835, payable at the Chemung Canal Bank at ¡Elmira, eighteen months after date, with interest after six months from date. On 22d October, 1836, when the note came to maturity, it was not paid, and a notice was deposited at the post office at Elmira, in these words: “Elmira, Oct. 22d, 1836.

<p>Error from the supreme court. Harris sued Elmendore in the New-York common pleas on an arbitration bond, dated 3d May, 1827, made by one Taylor, and by Elmendore as his surety, whereby certain accounts were submitted t'o the determination of two arbitrators, and if they could not agree, to the award of an umpire to be chosen by the arbitrators. The arbitration bond provided that the submission should be made a rule of court. The defendant pleaded, 1. Non est factum ; 2; No atoard by arbitrators, no appointment of umpire, and no award by him ; 3. That although the arbitrators did appoint an umpire, who made an award, yet that the umpire did not before making his award appoint any time for hearing Taylor, or his witnesses or proofs touching the matters referred, or for proceeding in the arbitration ; and that the award was made by the umpire, without having heard or examined any witnesses or proofs on behalf of Taylor, and without havin g given him any opportunity of producing any witnesses or proofs, or observing upon the plaintiff’s witnesses or proofs ; and this, &c. wherefore, &c. To the second plea the plaintiff replied, stating the appointment of an umpire by the arbitrators, and the making of an award by him, and upon the third plea issue was taken. On the trial of the cause, the appointment [ *629 ] by parol of the umpire, and the making of *the award, were proved ; and on the part of the defendant, the third plea was verified. The defendant objected to a recovery, insisting that the appointment of the umpire by parol was not a good appointment; that it should have been by writing, and under seal ; and that the hearing before the umpire having been ex parte, without notice to the defendant or his principal, the award was void, and the plea of no award sustained. The presiding judge overruled the objections, and the jury found all the issues, except the third, in favor of the plaintiff, and as to the third, issue, they found for the defendant. Judgment was accordingly entered for the plaintiff. The defendant sued out a writ of error, and the supreme court affirmed the judgment. See 5 Wendell, 616 et seq. The defendant thereupon removed the record in this court, where the cause was argued by</p>

Error from the supreme court. Stearns, the prisoner, was convicted of the crime of forgery at the Hew-York general sesssions. Having taken various exceptions on the *trial, he removed the indict- [ *635 ] ment and hill of exceptions into the supreme court under the provisions of the statute, 2 B. S. 736, and that court advised the sessions to proceed to judgment, and remitted the proceedings.

<p>On an application to a magistrate for sureties of the peace, there must be a formal complaint in writing and upon oath, besides the examination in writing required by the statute, to justify the magistrate in issuing a warrant against the party complained of ; it is not enough that the complaint is embraced in the examination.</p> <p>If, however, the warrant to arrest recite that there was a complaint in writing, and upon oath, it is primafacie evidence that such proceedings were had, and will protect the magistrate in an action against him, until it be affirmatively shown on the other side that there was not such a complaint.</p> <p>In the mittimus, it is not necessary to state the crime for the prevention of which the application for sureties of the -peace was made; it is enough if it be stated that the party is committed for refusing to give sureties.</p>

<p>Error from the supreme court.' Gillespie sued out a writ of error to reverse a confirmation by the supreme court of a report of commissioners of estimate and assessment in the city of New-York, on the laying out of certain streets. He opposed the confirmation upon various grounds, and amongst others upon the ground that the commissioners, in estimating the damage sustained by him as tenant of certain premises, had not in the nature of an apportionment of rent, made a deduction from the rents reserved in a lease executed by him in reneival of a former lease. The rent specified in the new lease was $1000 annually, being the same sum reserved in the original lease, although a portion of the premises, before the execution of the renewed lease, had been taken in the widening of a street. Gillespie proved that by reason of such reduction of the premises there ought to be a deduction in the rent of at least one-third.</p> <p>Upon the above question the following opinion was delivered in the supreme court by Mr. Justice Cowen:</p> <p>“ The question of apportionment upon an eviction for enlarging William-street does not arise upon this lease. It is said to include 833 feet of that street, in the description of the premises, the whole of which contain 3378 feet. For aught I see, or can know, it is an original lease, in no way emanating from any previous covenant with which it is sought to be connected. But if it be under a covenant of *renewal in the [ *644 ] lease which came before this court in CHlhspie v. Thomas, 15 Wendell, 464, that does not place it on the same ground with the first. True, the statute directs an apportionment of rents and covenants, 2 R. L. 417. But the apportionment should have been made when the new lease was executed. If the annual value was reduced by the eviction from $1000 to $700, then was the time to say so. The rent should have been fixed in the lease at the latter sum. If the party has gone with his eyes open and exceeded his legal obligation, he is bound by his covenant. At most it is his mistake of the law, against which no court can relieve him. I have nothing before me which should save him from that consequence. The covenant is satisfied by a lease of his own procuring; and by which he is bound. But I do not think that this lease does in truth cover what was taken away from the old one for the purposes of William street. I collect from the papers that William street had been actually widened when the lease was given. It is bounded west on that street, which must mean as it then was. Here is a boundary which controls both area and distance. The new lease is for the old area minus the 833 feet. Such is the palpable legal construction upon this description of parcel. I admit that, according to what I understood upon the argument, there was neither a legal nor equitable obligation to take the lease with a covenant for the former rent of $1000. How much should be abated is another point. If the parties had disagreed, chancery would have settled the question. Gillespie has, however, placed the matter beyond all legal or equitable correction. He stands estopped and tied up by his covenant to the old rent for the diminished area during the seven years. It was admitted on the argument that he had made no mistake of law or fact. He evidently considered the lease such a great bargain, that he was willing to depart from his covenant rather than have a word of dispute under it concerning any thing which might be open for discussion right or wrong.”</p> <p>The case was argued in this court by</p>

Error from the supreme court. Joseph Alexander and John Mullen, brought an action of assumpsit in the superior court of the city of New-York, against Robert A. Fitzgerald, on two promissory notes. The defendant pleaded an insolvent discharge, and the plaintiffs replied a [ *649 ] new promise. *The plaintiffs obtained a verdict which was set aside and a venire de novo awarded by the supreme court on writ of error, 19 Wendell, 402.

Smith and Hoe brought an action of replevin in the New-York common pleas against Acker, the sheriff of the city and county of New-York, for taking an imperial printing press, alleged to be the property of [ *654 ] the plaintiffs, from a *printirig office occupied by Jared W. Bell. The press was taken by a deputy of the defendant on the 20 th of January, 1838, by virtue of an execution against Bell.