Volume 24 — Wendell's New York Reports

<p>An action at law will not lie by a cestui que trust, against the executor of a trustee, created by an assignment for the benefit of creditors, upon an implied promise arising from the acceptance of the trust, and the conversion of the fund into money; the party must resort to equity.</p> <p>It seems, had there been an express promise by the testator, and there had been assets, that an action would have lain against the executor.</p> <p>Property held in trust, on the death of the trustee, at common law passed to his executor; but not as assets. He took not as executor but as a trustee, subject to the same stipulations and conditions under which it was held by the testator. Now, by the revised statutes, it seems the trust vests in the court, of chancery with all the powers and duties of the original trustee, and mustbe executed by some person appointed for that purpose under the direction of the court. 1 R. S. 2d. ed. p. 724, § 68.</p>

In October, 1835, the plaintiffs in this cause obtained a verdict, which was set aside, and a new trial granted in May term, 1838. See 19 Wendell, 378. The cause was again tried, and a verdict found for the defendant. The plaintiffs, on a bill of exceptions, now move for a new trial. The action was ejectment, and the plaintiffs claimed to recover as the heirs at law of Jacob Hart.

Error from the Montgomery common pleas. Cheadell sued ^McPherson in 1837, in an action of assumpsit, for services rendered as a physician, and for medicines furnished from 1803 until 1836. The defendant pleaded the general issue and the statute of limitations.

Demurrer to plea. The plaintiff declared on an attachment bond executed by Humphrey and Clark, on the commencement of a suit in a justice’s court, by Humphrey against Dunning.

<p>This was an action of assumpsit upon the money counts, tried at the New-York circuit in February, 1838, before the Hon. Ogden Edwards, one of the circuit judges.</p> <p>The defendants, as the assignees of a judgment, recovered by David Meld against Emma Boyer for about $670 damages and costs, commenced a suit in the court of chancery, in the name of Field as complainant, but for their own benefit, against the plaintiff and others. In the bill filed it was alleged that a conveyance of certain lands, which had been made by Mrs. Boyer, the judgment debtor to the plaintiff in this suit, was fraudulent and void as against the complainant, who was a judgment creditor. The defendants in chancery, among other things, alleged in their answer that the judgment had been assigned to the defendants in this suit. Replications were filed, and orders to produce witnesses entered, but no proofs were taken by either party. In May, 1831, the cause having been brought to a hearing, the vice chancellor made a decree, declaring the conveyance from Mrs. Boyer to the plaintiff fraudulent and void, and directing the land to be sold, and the money applied, in part, to the satisfaction of the complainant’s judgment and the costs of the sifit in chancery. The land was sold under the decree, and in August, 1831, a part of the proceeds of the sale, amounting to $995,73, was paid over to the solicitor employed by the defendants in this suit to carry on the proceedings in chancery. The solicitor retained *his costs, and paid over the balance, $812, to the de- [ *33 ] fendants. On appeal to the chancellor, the decree of the vice chancellor was, in May 1834, reversed; but the reversal was not to prejudice the title of the purchaser under the decree. It was further ordered that the plaintiff in this suit be restored to so much of the purchase money, as had been paid over to the solicitor as abovemontioned. The decree was, in December, 1834, affirmed in the court of errors. The plaintiff then brought this action to recover the money which had been collected out of her property, and paid over to the defendants under the order of the vice chancellor. The defendants moved for a nonsuit, which was refused. Verdict for the plaintiff for $1446,85. The defendants now move for a new trial on a case.</p>

*ThiS was an action of covenant, tried at the Herkimer circuit, [ *36 ] in November, 1838, before the Hon. John Willard, one of the circuit judges.

<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.</p> <p>The declaration contained the common counts in assumpsit, and the plaintiff claimed to recover payment for tanning 500 Georgia hides for the defendants, and proved that the work was worth 5| or 5| cents per pound, and that the hides averaged 14 or 15 pounds each. It appeared, on the plaintiff’s evidence, that the work was done under a sealed contract, between the parties, and on this ground the defendants moved for a nonsuit; but the motion was refused, because it appeared *that the work, though not done within the stipulated time, had in fact been done, and there [ *61 ] was evidence of an acceptance of the leather by the defendants. The defendants offered the written contract in evidence, and offered to prove its execution by secondary evidence, the subscribing witness being alleged to be insane. The judge holding, however, that there was not sufficient evidence of his insanity, refused to receive the secondary evidence, and the contract was not received. Proof was then given tending to show that the hides had been injured in the process of tanning. It also appeared that the leather was not returned under about eleven months. On these and other grounds, the defendants claimed a large amount of damages' to be deducted from the claim of the plaintiff. The jury found a verdict for the plaintiff, for nearly the whole sum claimed by him.</p>

Constitutionality of a statute. The plaintiff declared against J. D. Lelánd, H. Shays, Gr. Langford and S. M. Mason, in trespass : the first count being in trespass quare clausum fregit, and taking and carrying away his goods, and the second in trespass de bonis * asportatis. The three first named defendants justified, that they as commissioners for assessing and levying a tax on the city of Utica, in pursuance of an act of the legislature, passed 11th May, 1835, (vid.

This was an action of assumpsit, tried at the Tioga circuit in September, 1838, before the Hon. Robert Monell, one of the circuit judges.

This was an action of replevin for a quantity of coke, tried at the Schenectady circuit, in March, 1838, before the Hon. John P. Cushman, one of the circuit judges.

Apportionment of rent. The plaintiff declared in covenant for that on the 1st February, 1838, an indenture of lease was executed by him and the defendant, whereby he demised to the defendant a certain farm together with the use of all the farming utensils and stock, (as aforesaid appraised by • the appraisers in 1832) for the term of five years, from 1st April, 1838, subject to an annual rent of $100, to be paid semi-annually.

This was an action of assumpsit on a guarranty, dated 8th November, 1836, in these words : “ Messrs.

This was an action of ejectment, tried at the Herkimer circuit in November, 1838, before the Hon. John Willard, one of the circuit judges.

This was an action of ejectment, tried at the Warren circuit, in June, 1835, before the Hon. Esek Oowen, then one of the circuit judges. The plaintiff claimed to recover lot Ho. 5, in the subdivision of lot Ho. 54, of a tract of land called Hyde patent. The declaration contained but one count in the name of the plaintiff.

This was an action on a bill of exchange, for $797, drawn by Joseph Strangham, on the defendants, dated 12th December, 1836, payable to his own order five months after date. The defendants accepted the draft in consideration of a promise on the part of Strangham, to send the acceptors 600 bushels of wheat, to be shipped on the opening of navigation at Buffalo. The wheat was in Canada, and the acceptors resided a Rochester.

<p>The transferring to another a bargain for the purchase of land is not a good consideration of a note for the payment of money, where there is no valid agreement on the part of owner of the land to convey, and where the negotiation with him for the sale of the farm was made without any request from the maker of the note.</p> <p>A mere moral or conscientious obligation, unconnected with a prior legal or equitable'claim, is not a sufficient consideration to support a promise.</p>

This was an action of slander, tried at the Albany circuit in April, 1837, before the Hon. James Yanderpoel, then one of the circuit judges. The several counts of the declaration (among other charges of direct and particular sets of confessedly slanderous words laid in various ways) sought to fix a slander upon the defendant as having adopted certain words previously used by one Batterman, and saying they were true.

This was an action of assumpsit, tried at the Tompkins circuit in September, 1839, before the Hon. Robert Monell, one of the circuit judges. The plaintiff read in evidence two promissory notes made to him by the defendants for the sum of $424,83.

This was an action for a libel, tried at the Montgomery circuit, in May, 1839, before the Hon. John Willard, one of the circuit judges. The defendant was the editor of a newspaper called the Otsego Republican, and on the 14th of August, 1837, republished in that paper an article from another paper called the Chenango Telegraph, which commenced as follows—“ J. Fenimore Cooper.

This was an action of assumpsit tried at the Tompkins circuit, in February, 1839, before the Hon. Robert Monell, one of the circuit judges. The suit was brought for the recovery of bills of costs in two suits prosecuted by the plaintiff, as the attorney of the now defendant against the Tompkins County Bank, during the suspension of specie payments by the banks in this state.

Error from the Tompkins common pleas. Ingersoll commenced a suit by attachment against Bennett in a justice’s court.

This was an action of assumpsit, tried at the Erie circuit in January, 1839, before the Hon. Nathan. Dayton, one of the circuit judges. The action was on a note for $500, dated May 11, 1837, made by the defendant Seoville, payable sixty days after date, at the Bank of Buffalo, to the order of the defendant Barton, and endorsed by him and the defendant Mooney. The defence was usury.

This was an action of trover, tried at the Oswego circuit in December, 1838, before the Hon. Philo Gbxdley, one of the circuit judges.

This was an action of ejectment, tried at the Columbia circuit in April, 1839, before the Hon. John P. Cushman, one of the circuit judges. The plaintiff, Gertrude Hogeboom, as one of six children and heirs at law of Johannes Hogeboom, who died about the year 1814, seized of a large farm, of which the premises in question are a part, claimed to recover an undivided sixth part of the farm.

Demurrer to declaration in covenant. The plaintiff recited in the first count, that he severally, and the defendants in common, were before, and at the time of the agreement executed, seized of land bearing pine timber in the state of Michigan,[viz. the plaintiff of 1120 acres, the defendants viz. Tuck of 500 acres; Ewer, 1500 acres; R. Runker, 406 acres of an acre, and O. Runker 800 acres ; and that on the 27th of February, 1837, by sealed agreement between the plaintiff…

This was an action of ejectment, tried at the Montgomery circuit in May, 1839, before the Hon. John Willard, one of the circuit judges. The plaintiff claimed to recover one-sixth part of a farm of 120 acres, whereof his father, Peter W. Pox, died seized in June, 1816, leaving him and five other infant children his heirs at law.

This was an action oí replevin, tried at the New-York circuit in November, 1838, before the Hon. Ogden Edwards, one of the circuit judges. *The plaintiffs declared in the detinet for 14 boxes of sattinets, [ *170 ] containing 8136 yards of that article.

Demurrer to a return to an alternative mandamus. The alternative writ required the defendants to audit, and allow the relator’s account, as late clerk of the county of Dutchess, for making general indexes to the deeds and mortgages recorded in that county, from 1832 to 1838, pursuant to the statutes of 1826, p. 359, eh. 313.

Misjoinder of counts. The declaration in this case contains several counts.

Error from the Tompkins common pleas. Neil sued Abel Annas, before a justice, upon contract, and on a trial by jury, recovered $25, and costs.

<p>Where a party had an easement in the land of another, viz. the right to cut a ditch or watercourse, it was held that the owner of the land had the right to erect fences across the water course, and that if the other unnecessarily or wantonly removed them, he was liable in damages, and that the owner, for such removal of the fences, was entitled to recover, though no actual damage was proved. Every unauthorized entry upon the land of another is a trespass for which an action lies, though the damages be merely nominal.</p>

Error from the Tompkins common pleas. iSoutlworth brought an action of trespass before a justice against the two Freelands, for taking and carrying away a stove and pipe ; and on a trial, judgment was rendered for the plaintiff, which the defendants removed into the common pleas by certiorari, where the judgment was affirmed, and the defendants now bring error.

<p>Since the revision of the laws in 1830, where a husband dies, his widow is entitled to dower in the lands whereof he was seised, notwithstanding that previous to 1830, for many years she lived in open adultery away from him, if a divorce was not obtained. Had the husband died previous to 1830, she would have been barred under the act concerning dower, passed in 1787, notwithstanding a divorce had not been obtained ; but that act having been repealed, the widow now by the revised statutes is not barred, unless the marriage contract has been dissolved by a divorce.</p> <p>Previous to the death of the husband, the wife had no right, interest or estate in the lands of her husband which could be forfeited by the adultery ; and therefore, the act of 1787 had no operation in barring her dower.</p>

This was the trial of a traverse of an inquisition in a case of forcible entry and detainer, at the Washington circuit in June, 1838, before the Hon. John Willard, one of the circuit judges. • By the inquisition the jury found that the relator had an estate in possession of a grist mill, situate, &c. and was lawfully and peaceably in possession until the 26th October, 1836, when the defendant with strong hand and a multitude of people entered and expelled him, and unlawfully…

Error from the New York common pleas. Betts sued Cooley and Bangs in the common pleas, and declared on the common counts in assumpsit for goods sold, money had and received, &c. The declaration also contained a special count that in consideration that the plaintiff would deliver, goods, wares and merchandizes to the defendants, to be sold by them for him, they undertook to sell the same, and to render a true and just account of the sale and of (he proceeds when they should…

<p>A policy of insurance upon the body, tackle, &c. of a vessel, at and from. New-Orleans, Cam-peachy, and Havana, for the period of six calendar months from a certain day, is a policy on time, and does not limit the navigation of the vessel to voyages between the places specified in the policy; provided the vessel take her departure from either of them, let her port of destination be where it may, she is under the protection of the policy for the whole period of the specified time.</p>

Ineormatioh in the nature of a quo warranto. On the 11th January, 1840, the attorney general on the relation of Ohauncey Smith, filed the information in this case charging Thomas H. Fisher with having on the 21st December, 1839, usurped the office of clerk of the county of Westchester, and averring that the relator is rightfully entitled to the office.

<p>In a controversy in an action of ejectment between one claiming under a prior possessor and the other under a subsequent possessor, the obtaining of a deed by a predecessor of the latter from several of the heirs of the prior possessor, is an admission of title in their ancestor.</p> <p>Such deed fastens upon the grantee and those claiming under him the character of a tenant in common with the grantee of the other heirs of the prior possessor, and the possession held under such deed is not adverse to the rights of the other' grantee, unless the presumption arising from the acceptance of the deed be satisfactorily explained.</p> <p>Possession of twenty-seven years by one tenant in common, although during all that time the right of the co-tenant had not been recognised, was held, in this case, not to be sufficient to authorize a jury to presume an ouster, where before twenty-five years had elapsed, the co-tenant had made an actual entry upon the land, and was forcibly expelled.</p> <p>Whether a certificate of the acknowledgment of a deed taken in 1784, not stating that the grantor was known to the officer, be sufficient to authorize the reception of the deed in evidence, quere.</p> <p>Where a will produced on the trial of a cause was more than fifty years old, it teas held that the legal presumption attached that the witnesses were dead, and that the party might resort to secondary evidence to prove the will; and that its production with the probate attached was sufficient evidence to authorize its being read.</p> <p>A grantor’s declarations after he has parted with his title are not admissible to affect his grantee ; yet, where such declarations have 1 een received as evidence, a new trial will not on that ground be granted on a case made, where the court see that the result would be the same if the evidence was rejected—on a MU of exceptions, however, it would be of course in such case to grant a new trial.</p>

This was an action of assumpsit, tried at the New-York circuit in June, 1838, before the Hon. Ogden Edwards, one of the circuit judges. The plaintiffs declared on the money counts, and annexed to [ *231 ] their declaration the copies of tivo promissory notes as the cause of action : 1. A note dated at New-York, May 9, 1836, for $2346,55, made by W. Faulkner and payable to the order of James W. Lent, five months after date ; and 2.

Error from the New-York common pleas. The Eire Department brought an action of debt against Talmage & Van Pelt, in the court below, and on the trial claimed to recover a penalty of $93,75, for having or keeping a quantity of gun-powder, exceeding 28 pounds in weight, in their store in the city of New-York, to the southward of Fourteenth street. See Statutes of 1830, p. 352, § 24, 34.

Error from the superior court of the city of Yew-York. S. Gilbert and J. Strang, executors, &c. of C. Stagg, brought an action of assumpsit in the marine court of the city of Yew-York, against S. B. H. Judah for services rendered by the testator in his life time for the defendant. The defendant pleaded the general issue and payment. The parties proceeded to trial and the plaintiffs were nonsuited and costs awarded to the defendant.

Error from the superior court of the city of Ne'w-York. Benjamin Clapp, administrator, with the will annexed, of *Theodore [ *241 ] Nicolet deceased, brought an action of trover against Pillot and Le Barbier for four promissory notes amounting together to the sum of $7, 473,13, under the following circumstances : Nicolet, a merchant residing at New-Orleans, had, through his agent It.

[ *245 ] *Error from the superior court of the city of New-York.

Certiorari. The commissioners of the town of Southampton, in the year 1833, on the petition of three individuals to have a certain road discontinue ed and closed up : which petition was supported by the oaths of twelve freeholders that the road had become useless and unnecessary as a public highway, made an order allowing the petitioners to close the road, provided good and easy swing gates were made and supported at the cost and charge of the petitioners : the commissioners…

Error from the New-York common pleas. This was an action of covenant, for the nonpayment of rent. The premises demised consisted of a lot situate at the corner of Wall and Pearl streets, in the city of New-York, being 20 feet 3 inches on Pearl, and 53 feet 5 inches on Wall street, for the term of eight years, from 1st May, 1830, subject to an annual rent of $3000, payable quarterly.

Demurrer to declaration in covenant. The first count alleges that Thomas Peele, on the 18th July, 1835, became bound to the plaintiff in a bond, conditioned for the payment of $2529,29, by instalments, specifying the times, with interest; and that the defendants on the same day covenanted with the plaintiff, that in case Peele should not pay the money according to the condition of the bond, the defendants would pay the same on request.

Demurrer to declaration. The action was covenant on an award, pursuant to a sealed submission to -two arbitrators of matters in litigation between the parties. The submission provided for an umpire, in case of disagreement, and contained mutual covenants to abide by the award. The declaration set out an award by the umpire that the defendant should pay to the plaintiff $1111,17, with certain costs to be taxed—for the recovery of which sums this action was brought.

This was an action of assumpsit, tried at the Hew-York circuit, in June 1837, before the Hon. Ogden Edwards, one of the circuit judges. The plaintiffs declared on the common money counts. They were the holders of a promissory note, drawn by Sqmuel 8. Hill, dated 17th August, 1885, for $3157,43, payable to their order at the Broome County Bank, sixty days after date.

Error from the Dutchess C. P. Hopkins sued Cabrey in a justice’s court on the 4th of May, 1838, for money had and received to the plaintiff’s use, viz. the surplus money remaining in the defendant’s hands as a school district collector, after retaining sufficient of the proceeds of a. sale of the plaintiff’s property to satisfy a school tax.

Error from the Essex C. P. Streeter sued J. Folsom, D. E. Sandford and H. H. Dennison, in an action of trespass for causing, as trustees'of a school district in the town of Moriah, in the county of Essex, a pair of oxen belonging to the plaintiff to be sold at public vendue ; which warrant the plaintiff alleged was issued illegally. In October, 1833, Folsom and two other persons, viz. <7.

<p>Error from the superior court of the city of New-York. Suydam and Boyd sued Gayle'on a promissory note made by him, bearing date 24th March, 1835, payable to the plaintiffs for $1342,88, six months after date, at the United States Branch Bank, at Mobile. On the day the note was given, one of the payees entered into a written stipulation to give up the note to the maker provided he gave them before the note became due, a satisfactory acceptance on some responsible house in Mobile, to be approved by their agent there, at six months from 24th September, 1835, with interest added. The note was sent to the Branch Bank at Mobile for collection. On the 26th September, the note being in the Branch Bank at Mobile, B. Gayle tendered at the bank the acceptance of himself and partner, constituting the firm of Gayle Sp Bower, a mercantile house transacting business at Mobile, for the amount of the note with six months’ interest added, in substitution of the note. The cashier refused to deliver up the note. Whereupon Gayle destroyed the acceptance. The house of Gayle Sp Bower were solvent and in good credit at the time of the tender, and continued so until the 22d March, 1837. The plaintiffs commenced this suit previous to the November term, 1835, of the superior court, and declared upon the note and the common money counts. The presiding judge charged the jury that the destruction of the acceptance restored to the plaintiffs their right [ *272 ] to prosecute upon the note, and that the tender of the ’acceptance did not, under the circumstances, bar the plaintiffs’ right of action. The jury found for the plaintiffs, and the defendant having excepted to the charge of the judge, sued out a writ of error.</p>

Demurrer to pleas. The plaintiff declared in debt on a recognizance of - bail entered into by the defendant, Uriah Sornberger, as the bail and manucaptor of Ransom Sornberger, in an action commenced against the latter by the plaintiff in this court, by capias, returnable in the term of October, 1836.

Error from the superior court, of the city of Hew-York. Turner sued Burrows, to recover his proportion of moneys received by the latter, on a policy of insurance of^ a brig, called the Burrows, of which the plaintiff owned one sixth, and the defendant the residue. The negotiation for the purchase was conducted by Charles Turner, a son of the plaintiff, John Turner, from the tenth to the fifteenth of January, 1827.

Error from the superior court of the city of New-York. Crosby brought an action of replevin against Hillyer for a large quantity of merchandize levied upon by him as sheriff of the county of New-York, by virtue of two executions against John Hanna, Alpheus De Forrest and Henry O’Brien. The defendants in the executions had transacted business as merchants, under the name of Hanna, Be Forrest Go. The firm was dissolved in November, 1837.

<p>Where a party by a written instrument recited that he had taken a lease of a lot of ground of another in a certain street, and agreed on the opening of another street into the street in which the lot was situated, that he would pay his landlord $100 as soon as such new street should be opened; and it was proved that such writing was executed contemporaneously with the lease recited in it; it was held, that the execution of the lease was a sufficient consideration for the agreement, and that in an action on the agreement the landlord was entitled to recover.</p> <p>It seems also, that though the consideration had been past and executed, upon proof of the making of the lease, the jury would have been warranted to infer that it was executed at the re-guest of the defendant; and that even the word agree might import evidence of a consideration sufficient to support the agreement.</p>

Error from the New-York C. P. The plaintiffs below, W. H. & R. E. Hudson, brought replevin against McCarty and Allison for taking certain goods and chattels. The defendants pleaded : 1. Non-cepit; and 2. Putin an avowry and cognizance, justifying the taking of the goods under a warrant of distress for $278, a quarter’s rent due 1st February, 1837, under a demise of certain premises from McCarty *to the [ *292 ] plaintiffs. The plaintiffs pleaded : 1. No rent in arrear; 2.

Error from the superior court of the city of Hew-York. The plaintiffs, Fellows, Read & Co. commenced an action of assumpsit against Stevens on five promissory notes, the lafefc of which bore date on the 14th September, 1836, amounting, together with the interest thereof on the day of trial, to $5020,18.

Error from the superior court of the city of New-York. On the 14th April, 1833, a contract in the nature of a charter party was- entered into between McCrea, the plaintiff in the court below, and two mercantile firms of the city of New York, viz: 0.

[ *317 ] Demurrer to plea. The plaintiff (Jeremiah Van Renssaler) declared in covenant for rent due on a lease in fee, reserving rent executed by one John Van Rensselaer, an ancestor of the plaintiff, to one Andries Muller, on the 20th November, 1759. The plaintiff averred that the demised premises came by assignment to the defendant, and that since the accruing of the estate of the plaintiff, the sum of §2000 rent had become due and was in arrear.

Error from the superior court of the city of New-York. Shields brought an action of assumpsit for the non-delivery of a quantity of iron. On the 21st January, 1836, a broker employed by the defendants sold to the plaintiff fifty tons of English iron at $70 per ton, at a credit of six months, the iron to be in good order and the plaintiff not to be bound to take it unless it arrived in reasonable time.

Error from the superior court of the city of New-York. Hutton sued the American Insurance Company on a policy upon the body, &e. of a brig called the Champion, for and during the term of twelve calendar months, commencing on the 21st January, 1835 ; averages, if any, to be settled each passage ; and if at sea at the expiration of the term, the risk to continue at the same rate of premium until her arrival at the port of destination.

Motion to set aside a report of referees. The action was assumpsit on an agreement in writing, dated January 1, 1825, signed by the parties, by which the defendant, among other things, agreed to furnish 6000 hides annually, for five years, at the Howard factory, Warwarsink, which the plaintiff agreed to tan in the best manner that the nature of the hides would admit of, and to transport them to the city of Hew-York.

This action was tried at the Allegany circuit, in October, 1839, before the Hon. Robert Monell, one of the circuit judges. *The suit was brought to recover moneys expended by the plain- [ *342 ] tiffs in the support of a pauper, for whom it was alleged the defendants were bound by law to provide.

Demurrer to declaration. The first count is as follows: John Delafield, of the city of N. Y., plaintiff in this suit, by E. S. V., his attorney, complains of George _/V. Kinney, president of the Erie County Bank, an association formed under the laws of this state entitled “ an act to authorize the business of banking,” passed April 18th, 1838, and doing business at Buffalo, defendants in this suit, in a plea of trespass on the case upon promises pursuant to the statute : for…

[ *351’ ] *Error from the Tompkins 0. P. Nicholson sued Garey in an action of trespass for taking a mare. The mare was taken by the direction of the defendant, a constable, from the stable of the plaintiff, by a son of the plaintiff, and receipted by a third person, the defendant claiming that he took the mare by virtue of an attachment in favor of one Pine. The defendant’s counsel asked for all the conversation between the defendant and the witness at the time.

This was an action of slander, tried at the Oneida circuit in October, 1838, before the Hon. Philo Grilley, one of the circuit judges. The words alleged to be spoken by the defennant, were that the plaintiff had had criminal connexion with one Eunice Tousey and had assisted her in procuring an abortion. The declaration contained several counts in which the words were varied, but in all, the same charge was substantially set forth.

This was an action of assumpsit, tried at the New-York circuit in June, 1838, before the Hon. Ogden Edwards, one of the circuit judges. The action was brought by the plaintiffs as endorsees against the defendant as drawer of a bill of exchange, dated Michigan City, 26th July, 1836, for §250, payable to the order of E. Ashton, at the North River Bank in the city of New-York. The bill was drawn upon J. 0.

This was an action of assumpsit, tried in December, 1839, before the Hon. Nathan Dayton, one of the circuit judges. The suit was brought on two promissory notes made by the defendants, payable to E. Pelton or bearer, one for $440, dated 22d June, [ *361 ] 1836, and the other for $488, dated 4th ^February, 1837.

Demurrer to pleas. The plaintiffs declared on a bond for the liberties executed by the defendants on the arrest of one MU Savage by the sheriff of the county of Oneida by virtue of a ca. sa. at the suit of the plaintiffs for the costs incurred by them in defending against a mandamus sued out by Savage. The plaintiffs averred that the mandamus was sued out in relation to proceedings had by them as judges of the Oneida C. P. in an action of trover in which Savage was a party.

Common law certiorari. By the return it appeared that John HallenbaJee, on the 6th December, 1836, applied to the commissioners of highways of the' town of Greenbush, to lay out a private road, which for a part of the distance would pass over the lands of the applicant, and for the residue of the distance over the lands of the relator. The relator had due notice of the application, and of the proceedings thereon.

The defendant Was indicted and tried in the Oneida general sessions for an assault and battery committed on the sheriff of Oneida while engaged in the execution of his office. The sheriff held a fi. fa. against Schuyler Hubbard and four other persons, which bad been issued on a judgment for damages and costs, in an action for a joint tort.

This was an action of assumpsit, tried at the Rensselaer circuit in March, 1889. The suit was by the plaintiffs as the endorsees of a promissory note against the makers. The note, as appears from the bill of exceptions, was in this form : « $1000. Ontario, 28th Jan’y, 1837. One year from the first day of May next, we severally and jointly [ *375 ] promise to pay Northum & Foot or bearer, *one thousand dollars, for value received, and interest.

Whitney sued Higgins in the court below in trespass, for breaking and entering his house, and taking and carrying away a carpet, bureau, and other goods and [ *380 ] chattels of the plaintiff. ‘'On the trial, the defendant attempted to justify under an assignment of the property to him by the plaintiff ; but the assignment was rejected, on a ground which need not be noticed.

This was an action on the case tried at the Oswego circuit, in June, 1839, before the Hon. Philo Gridley, one of the circuit judges. The plaintiffs declared for the voluntary escape of one Gerlack, from confinement in the jail of Oswego, on an arrest in an action of assumpsit, at the suit of the plaintiffs by virtue of a capias ad respondendum. The plaintiffs proved the capias with a return by the defendant of cepi corpus in custodia.

This was an action of assumpsit, tried at the Erie circuit in July, 1839, before the Hon. Nathan Dayton, one of the circuit judges. The suit was commenced against 0. Faxon, R. T. Kelly and J. Barnes. The declaration not having been served on Kelly, the plaintiff elected to sever the suit and to proceed against Faxon and Barnes alone.

Demurrer to replication. The facts of this case, and the question arising thereupon, are fully stated in the opinion delivered by Mr. Justice Bronson. The case was submitted on written arguments by

<p>On an execution against one of two partners, the sheriff may seize the entire partnership effects> or so much thereof as may be necessary to satisfy the execution, and sell the interest of the partner against whom the execution is issued ; and an action of trespass will not lie against the sheriff at the suit of the other partner or his assignees for delivering to the purchaser the property sold.</p> <p>The purchaser, in such case, becomes a tenant in common with the other partner, and if he purchase with notice that the goods are partnership effects, takes subject to an account between the partners, and to the equitable claims of the creditors of the firm in the name of the other ' partner.</p> <p>It seems that the sheriff may, against the will of the other partner, deliver the property sold to the purchaser. [ *390 ] *2t seems the court of chancery is the appropriate forum to be resorted to by the solvent partner, or by the creditors of the firm against the purchaser for the enforcement of the lien, although courts of law in the exercise of their equitable powers have sometimes interfered for the protection of the solvent partner or the creditors of the firm. The cases upon the subject adverted to, and commented upon, and the conclusion arrived at, that neither a court of equity or law have the power to stay an execution until an account be taken. ,</p> <p>It seems the proceeds of the sale must be paid over to the execution creditor, and the recourse of the solvent partner or the creditors of the firm is against the property in the hands of the purchaser.</p>

<p>Information in the nature of a quo warranto. ■ On the third day of July, 1840, the attorney general filed an information in the nature of a quo warranto against the defendant, charging him with having usurped and exercised the office of a commissioner of deeds in the city of Buffalo, without lawful authority on the 15th May, 1840, and from thence until the time of the exhibition of the information. The defendant pleaded that on 29th December, 1839, the common council of the city of Buffalo, at a regular and legal meeting of the hoard, by resolution limited the number of commissioners to he appointed in the city of Buffalo, so that there should be in the said city seven commissioners of deeds including those then in office; that at the time of the adoption of such resolution, there were residing in Buffalo two commissioners of deeds who had been theretofore duly appointed for the town of Buffalo, and that there were no more commissioners of deeds in office in the city of Buffalo at the adoption of such resolution; that a copy of the resolution was duly transmitted to the governor of the state, and that on the 21st January, 1840, the defendant was duly appointed by the governor, by and with the advice and consent of the senate, a commissioner of deeds of the city of Buffalo. That the commission was duly filed in the clerk’s office of the county of Erie; and that on the 28th January, 1840, he took and subscribed the oath of office ; and that by reason of the premises he had claimed, and had used and exercised the office of commissioner of deeds for the city of Buffalo, as it was lawful for him to do, traversing the usurpation, &c. To this plea the attorney general demurred, and the defendant joined in demurrer.</p>

<p>Where there are two establishment in the same plage for the carrying on the business of transportation of goods, both conducted by the same individual, in one of which he is a partner, and in tlic other sole proprietor, and lie obtains moneys from a bank on checks drawn by him signed in his own name generally as agent: in an action by the bank against the firm, for the recovery of a balance due upon such checks, the firm have the right to show that they are not indebted to the hank, and that the indebtedness, if any, is by the individual solely who drew the checks, where there is no proof that the other members of the firm knew the mode in which the cheeks were drawn.</p> <p>A pica in abatement for the non-joinder of parties admits the plaintiff’s claim, but not the amount ; the defendant failing to establish liis plea, may contest the whole or any part of the plaintiff’s claim, the same as on a plea of the general issue. He, however, must submit to a verdict against him for nominal damages. [ *412 ] *Where a defendant pleads the non-joinder of one as a co-defendant, and on-the proof it turns out that there are three persons who should have been joined, the plaintiff is entitled to a verdict notwithstanding that the plea is verified. The defendant should have named all the joint contractors not on the record.</p> <p>So where four persons were sued as joint contractors, and were described as copartners carrying on business under a particular name, and one of them put in a pica in abatement alleging the noil-joinder of three other persons; to which the plaintiff replied that the defendants were members of an association called The New-Yorh and Geneva Line, formed for the transportation of passengers, and had omitted to file a statement of the names of the persons composing the association; and the defendant rejoined that lie was not a member of an accociation transacting business under such name; it was held, that the plaintiff was entitled to a verdict, notwithstanding that it was proved that the defendant was not a member of the association named, but of another association: on the ground that the substance of the issue only is required to be proved, and that the name of the association specified in the pleadings may be regarded as surplusage.</p>

Error from the Montgomery common pleas. Thomas sued Frost for an assault, battery and false imprisonment. The defendant attempted to justify as a special deputy in serving a warrant for larceny, issued by a justice of the peace. The plaintiff required the defendant to show him ^the warrant, before he would submit to the arrest, which the de- [ *419 ] fendant not doing, the plaintiff resisted and the defendant beat Mm.

<p>Where a bond and warrant of attorney were given for a sum certain, payable on demand. to secure the payment of certain specified notes, and a writing was entered into by the obligees of the bond stating the object of the transaction, and appropriating the proceeds of the judgment to be entered, it was held, that parol evidence was inadmissible to shew an agreement entered into at the time of the execution of the papers enlarging the time of payment of the notes.</p> <p>It was held, however, that it was competent in such case to show by parol evidence the nature of the transaction and the object and purpose of the parties ; and also to show [ *420 ] fraud on the part of the obligees by the misreading *of the paper specifying the terms upon which the bond and warrant were executed.</p> <p>Sueh fraud, however, if found, would not vitiate the judgment; it would only affect the instrument misread, leaving the judgment to operate according to the real intentions of the parties.</p> <p>A court are not bound to receive irrelevant testimony from one party, because such testimony has been given by the other party without objection.</p> <p>Where irrelevant testimony is permitted to go to a jury, a new trial will be granted of course on a bill of exceptions, if the chances are equal that it may have had an injurious tendency on ' the minds of the jurors. On a case, the court exercises its discretion, when it is plainly seen that no injury could possibly have resulted to the party objecting to the testimony.</p> <p>It seems, that in no case whatever is it proper to permit a jury to take with them when they retire to consider of their verdict, the documentary evidence submitted on the trial of a cause.</p>

Error from the Genesee C. P. Wright sued Cowdcn in an action of trespass for assaulting and beating her son, per quod servitium amisit. Cowden was the teacher of a select school, and the plaintiff’s son was one of his scholars, and the beating complained of was by way of punishment for disorderly conduct.

Information in the nature of a quo warranto against the defendants for claiming to be and acting as a corporation. The information was filed March 25, 1838. The defendants pleaded the several acts of the legislature by which they were created and continued a corporation. They were originally incorporated by the name of the New-York Manufacturing Company. Statutes of 1812, p. 509.

Demurrer to declaration for libel. The declaration states that the plaintiff is the author of numerous books, and among the rest of a certain book called “ Home as Found,” and of a certain other book called “ The History of the Navy of the United States of America,” both of which, before the committing of the grievances by the defendant hereinafter mentioned, were printed and published ; and which last mentioned book contains among other things a true, honest and impartial…

Hesse profits in ejectment. In May term, 1835, the plaintiff recovered judgment in this court in an action of ejectment brought for the recovery of certain premises situate in the city of New-York, which judgment was affirmed, in the court for the correction of errors on the 30th December, 1837, and the proceedings remitted to this court.

Demurrer to replication. The plaintiff declared in covenant on sealed articles of agreement, dated October 14, 1837, between the defendant of the first part and the plaintiff of the second part.

Error from the Cortland C. P. Carley sued Luce in trespass, for tearing down part of a dam across the Onondaga river, by means of which dam the mill of the plaintiff was supplied with water. The plaintiff was the owner of the land on the west side of the river, and Arnos P. Granger (under whom the defendant acted) the owner of the land on the east side of the river at the place, where the dam butted on the shore.

Error from the Cayuga common pleas. Ketchell sued Burns in a justice’s court, and declared upon a guaranty, endorsed upon a promissory note, in these words : “ For and in consideration of thirty-one dollars and fifty cents received of B. F. Spencer, I hereby guarantee the payment and collection of the within note to him or bearer. Auburn. Sept. 25, 1837.” (Signed) Thomas Burns.

Error from the New-York G. P. Shorb sued Hogan rf Miln in assumpsit for goods sold and delivered, and on the trial, claimed to recover the price of 50 bags of pimento or allspice. The plaintiff lived in Baltimore, and the defendants in New-York. The sale w'as made by John B. 0. Morris, who also resided in New-York. Morris testified that, as the agent of the plaintiff, he sold the goods to the defendants about the 27th April, 1838, for $304,20.

Ebbob, from the Chenango common pleas. Bolles sued Dudley in a justice’s court, and declared against him in a special action on the case, “ for driving immoderately and unlawfully, a mule in a cutter, on a public highway in the town of Smithville, so as to run against a certain mare in the possession of the servant of the plaintiff, in such a manner as to cause her death, on the 7th day of March, 1838.” The defendant pleaded the general issue.

Demurrer to declaration. The plaintiffs in their declaration, stated that on the 9th January, 1839, a certain corporation for manufacturing purposes, known as “ The New York Stock Frame and Cotton Manufacturing Company,” had been incorporated pursuant to the act entitled “ An act relative to incorporations for manufacturing purposes,” passed 22d March, 1811, and the amendments thereto, and as such was doing business at the town of Poughkeepsie, in the county of Dutchess, and…

*This was an action of replevin, tried at the Erie circuit in [ *481 ] January, 1839, before the Hon. Nathan Dayton, one of the circuit judges. The plaintiffs declared in the detinet for a quantity of merchandise.

This was an action of replevin, tried at Herkimer circuit in April, 1840, before the Hon. John Willard, one of the circuit judges. The action was brought by A. B. Webber and I. Hand, for the taking and detaining of four horses and two sets of harness, mortgaged to them on the 12th July, 1836, by D. S. Webber and E. Mansfield.

Demurrer to replication. The plaintiffs declared in assumpsit for that the testator was indebted to them for work, labor and services bestowed by them as attorneys and counsellors in and about his business.

On the 6th July, 1839, the commissioners of highways of the town of Cortlandville, made an order, adjudging that a certain road in that town, particularly designated, had been used as a public highway for twenty years, but had not been recorded; and they thereupon proceeded to ascertain, describe and enter the road of record in the town clerk’s office.

Error from the FTew-York common pleas. Henry F. Bowen brought an action of assumpsit against David 0. Argali and William Argali, and declared against them for goods sold and delivered, and also on the common money counts. To the declaration was attached a copy of a promissory note made by David O. Argali alone, dated 21st October, 1835, for the sum of $345, payable to the plaintiff six months after date.

The respondents filed a bill in chancery before the vice chancellor of the first circuit, in which they stated that John S. Roulet, Joseph Icard and *Gurdon S. Mumford, in No- [ *506 ] vember, 1807, shipped at New-York a cargo of coffee, sugar and logwood, on a voyage to Marseilles in France, of which cargo they were joint owners, and the invoice cost was $57,579,18 ; that the New-York Insurance Company insured $15,000 of the cargo at a premium of 7 per cent.

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

The appellant filed a bill in chancery to obtain an injunction against the diversion of a water course by the respondent. The cause was heard on pleadings and proofs by the vice chancellor of the second circuit, who decreed an injunction. On an appeal to the chancellor, the decree of the vice chancellor was reversed, and the complainant’t bill dismissed with costs'.

[ *588 _] Appeal from chancery. The appellants, in June, 1834, filed their bill before the vice chancellor of the first circuit, to settle the boundaries of certain lands in the city of New-Yorlc, owned respectively by the appellants and the respondents, alleged to adjoin each other ; and also to tafee an account between them of certain other lands alleged to be held by the parties as tenants in common.

William Cook died seized of a considerable real estate, and possessed of personal property consisting of bonds and mortgages, and other securities, of the value of about $120,000. Held: and to release to such issue any real estate to which they might have acquired title in the management of the estate ; and by the twelfth clause of the will, the ultimate remainder in fee was limited to'the mother of the testator in case both nieces died without issue in her lifetime.

Error from the supreme court. W. A. F. Pentz and his partners, a mercantile firm had two buildings blown up by order of the mayor of N. York, in the great fire in that city, in December, 1835, to prevent the spreading of the conflagration; and had their damages assessed, under § 81 of the general act relating to the city of H. York, 2 R. L. 368, at $39,476,54.