Volume 25 — Wendell's New York Reports

<p>Whether the Mayor and Alderman of the city of New-Yorkmay, by virtue of the charter of the city and the various acts of the colonial and state legislatures conferring judicial power upon them, exercise the office of judges of the county court of the county of New-York, or whether such office can be exercised only by judges appointed by the governor, and who hold their offices for five years, quere.*</p>

<p>'"Error from the supreme court. In 1835, the relator then [ *65 ] being a subject of the king of Great Britain, intermarried in the city of New-York with Eliza Anna, the daughter of Thomas R. Mereein, a citizen of this country. The relator took his wife to Nova Scotia and resided there about a year, when he removed to the city of New-York, where he resided until 1838. In the meantime, two children were born, the issue of the marriage, one a son and the other a daughter. In April, 1838, the relator having become embarrassed in his circumstances, returned to Nova Scotia with four daughters, the issue of a fornier marriage, and his wife, with his consent, went with her two children to the house of her father, in the city of New-York. In about three weeks, he returned to New-York, and solicited his wife to desire her father to aid him in establishing himself in business in Nova Scotia, and to tell him that it was her wish to go there. This she declined to do, and told him she would rather part at once. Whereupon he told her that he was about to leave her forever, and would take his hoy with him to Nova Scotia. On the 15th May, he wrote a letter to her in which he says, “My resolution is taken. I have felt it my duty to acquiesce in your decision of our final separation at once,” and proposed to her to have the necessary measures taken accordingly. On the 17th May, he wrote to the father of his wife, proposing that the terms of the separation should be settled by counsel, and on the 7th day of June, 1838, the following instrument having been drawn up, was executed under the hands and seals of the relator, his wife, and her father: “ Agreement made this 7th day of June, 1838, between John A. Barry of the first part, Eliza Anna Barry of second part, and Thomas R. Mercein of the third part. Whereas, certain differences have existed between John Alex. Barry and Eliza Anna his wife, which it is their mutual desire shall be amicably and peacefully arranged and reconciled; and the said John A. Barry’s business requiring him to be absent from New-York for a time ; and neither individual at present wishing a final separation, It is agreed between the aforesaid John Alex. Barry of the one part, the said Eliza Anna his wife of the second part, and [ *66 ] Thomas R. Mercein of the *third part, that the said John A. Barry shall leave in the care andlceeping of his said wife, until the first day of May next ensuing, their daughter Mary Mercein, and that on that day or so soon thereafter as may be, he shall relinquish to Eliza Anna his said wife, all his right existing at that or accruing at any then future period to their said daughter, provided his said wife shall then require him so to do. The aforesaid parties also covenant and agree that Mercein, the son of the said John Alexander and Eliza Anna, shall be left in the care and keeping of his said mother until she shall be required by his said father to deliver him the said Mercein, to him the said John A. Barry : the said mother having at such time the option to accompany him. Finally, it is agreed between the aforesaid parties that this document may be cancelled, annulled and destroyed at any moment by the mutual consent of the said John Alexander Barry and Eliza Anna his wife.” In the latter part of June, the relator went again to Nova Scotia, and returned on the 8th day of September to New York, and proposed to his wife to remain with her in New-York until the next spring, upon condition that she would promise then to return with him to Nova Scotia. She declined so to do; he threatened to take away his son, and a few days afterwards accordingly demanded and took him away. On the 18th May, 1839, the relator obtained a habeas corpus from the recorder of the city of New-York, commanding Thomas R. Mercein (the father of Mrs. Barry) to have the bodies of Eliza Anna Barry and Mary M. Barry, (the wife and daughter of the relator,) by him alleged to be imprisoned and detained, together with the time and cause of such imprisonment and detention, before the recorder, and to do and receive, &e. To this writ the defendant, Thomas R. Mercein, made a return, substantially setting forth the above facts, and accompanied the same with an affidavit of Mrs. Barry, giving a detailed account of the difficulties which had occurred between her husband and herself, representing him as a man of irascible temper, of domineering and vindictive spirit, of intemperate habits, and more than intimating that he had been licentious, and complaining that his eon- [ *67 ] duct towards her had been unfeeling, harsh, tyrannical and ’’cruel.</p> <p>After hearing the parties, the recorder, on the 1st July, 1839, made an order, that the child (Mary M. Barry) remain in the care and custody of her mother 66 until the said John A. Barry, and Elisa Anna Barry, shall make some arrangement or compromise, or uptil the custody of the said child shall be changed by a judicial decision.” On the thirteenth day of the same month, the relator obtained another habeas corpus from the chancellor, issued under the seal of the court of chancery, returnable before the chancellor in the court of chancery, directed to the defendant, commanding him to have Mrs. Barry, and her child Mary, before the chancellor on the tenth day of August, then next. On the day specified in the writ, the defendant appeared before the chancellor accompanied by Mrs. Barry and the child, and made a return, setting forth the circumstances under which Mrs. Barry and her child were inmates of his house. In this return, the defendant referred to the return made by him to the habeas corpus issued by the recorder, and to the affidavit of his daughter thereto annexed, gave copies, and prayed that the same might be taken as part of his return. He also "returned specially, that the child at the time of the return was only about nineteen months of age, and was of a delicate and sickly habit, requiring peculiarly a mother’s care and attention; that the child had for ten or twelve days then last past been laboring under the complaint incident to children, called the summer complaint; and that from its daily wasting at the time of the service of the habeas corpus, he was apprehensive and had reason to believe that it was doubtful whether it would have been alive on the day of the return of the writ; but that it had improved in health. He further stated, that during the pendency of the first habeas corpus, the relator obtained the custody of the child by force, and was guilty of great violence to the person of his wife in so doing. (The child, however, it seems, was subsequently restored to her mother by an order of the recorder.) After hearing the parties, and the proofs exhibited by them, the chancellor, on the 26th August, .1839, made an order in these words : “ It appearing that, so far as relates to the said Ann Eliza Barry, she is under no restraint whatever ; but on *the contrary, that she is now, and [ *68 ] at all times has been, at perfect liberty to go wheresoever she ¡ pleased; and there appearing to exist no sufficient reason for depriving the said Eliza Ann Barry of the care and nurture of her said infantL child, Mary Mercein Barry, It is therefore adjudged and declared that the said infant daughter is not improperly restrained of her liberty by the said Thomas B. Mercein ; and that no good reason now exists for taking the said infant child from its said mother, and from the care and protection of the said Thomas B. Mercein, with whom the said Eliza Anna Barry now voluntarily resides ; and this court, therefore, will not make an order to take the said infant child from the custody and nurture of its mother, and the care and protection of the defendant, Thomas B. Mercein, for the purpose of delivering it up to the relator, John A. Barry.” On the 29fft day of October following, the relator applied to the Hon. William Inglis, one of the associate judges of the court of common pleas of the city and county of Hew-York, for a third habeas corpus, to be directed to the defendant to bring up the child before him, which was accordingly granted. To this writ the defendant returned, stating the issuing of the first writ of habeas corpus by the recorder, and the proceedings had thereon; also the issuing of the second writ of habeas corpus by the chancellor, and the proceedings had thereon ; and insisted that such proceedings were a bar to any further proceedings on the habeas corpus then pending; and that the matter should be adjudged res adjudicata and the habeas corpus dismissed. If, however, the matter should be otherwise adjudged, he then returned the facts and circumstances under which the child was in his house, and prayed that the return made by him to the habeas corpus issued by the chancellor, and the affidavit accompanying the same made by his daughter, might be deemed part of bis return, and he accordingly annexed a copy of such return. He also verified the facts set forth in his return to the habeas corpus issued by the recorder. He then stated, that he believed the object of the relator, by the course of proceedings he had adopted, was to vex and harass his wife and [ *69 ] him, the defendant, and to break them down in *their opposition to7 his claim of taking from its mother to a foreign land the only child left to her. He further stated, that since the abduction of the child by the relator, the child’s nervous system had been very much deranged, being . alarmed and frightened at the appearance of a stranger, and evidently showing the terror with which she remembered her violent abduction from her mother; and concluded by saying that the child was then with her mother (Mrs. Barry) in his custody; but that Mrs. Barry was, and at all times had been, at liberty to go whithersoever she pleased, and take the child with her.</p> <p>On the coming in of this return, the relator did not demur to it as informal in referring to other papers, but merely objected to it as being evasive, and that the doctrine of res adjudicata was not applicable to the writ of habeas corpus. The judge decided that an adjudication of the same subject matter between the same parties was not a bar to the issuing of a new writ of habeas corpus, and to the investigation of new matters arising subsequently to the prior adjudication, and that the return should set forth that no new state of facts between the parties in relation- to the child had arisen subsequently to the prior adjudication. The return was amended accordingly, by stating therein the continuance of the same facts upon which the decisions of the recorder and chancellor were founded at the time of the return to the associate judge, who thereupon, after argument, decided that the proceedings before the chancellor, and the order of the 26th day of August made by him, were well pleaded in bar to any investigation of any matters in relation to the detention or imprisonment of the child; and that the matters in difference between the parties up to the time of the malcing of that order must be considered RES adjudicata. Subsequent to this decision, the relator produced in evidence a letter in the hand-writing of the defendant, dated subsequent to the 26th August, to wit, on the 28th August, 1839, addressed by the defendant to the relator, in these words:—“ Sir : As you persist in calling at my house after I have personally apprised you that such visits are offensive to my family, I now positively forbid your coming *in my [ *70 ] house at all, until this interdiction is revoked in writing by me.” The relator also produced a letter from Mrs. Barry to him, dated 29th August, 1839, in these words : “ Mr. Barry—Sir—You have expressed a wish to see Mary. There is nothing in chancellor Walworth’s decision which renders it incumbent on me to comply with that wish ; neither was it necessary. My own feelings and sufferings as connected with my absent son, are sufficient for my guidance. If you call on Saturday afternoon at 2 o’clock, you can see Mary, provided you signify your intention to me in a note 24 hours previous. Unless any thing should occur which, in my opinion, shall render such future course injudicious, you are at liberty to call quarterly, if you comply with the terms above mentioned of notifying me previously.” Underneath this letter was written an approval by the defendant, in these words : “ I agree to the above visits to the child.” The defendant produced a number of witnesses who proved the character of Mrs. Barry to be good, her temper sweet, her deportment amiable, her mind strong and improved, and that she was well calculated to take care of a child, peculiarly qualified for teaching, and that she devoted herself entirely to the child. The family of the defendant was also shown to be among the best of well regulated families. At a subsequent hearing, the defendant produced in evidence the agreement of the 7th June, 1838, in respect to the custody of the children of the relator, which was received in evidence by the judge, although objected to by the relator as inadmissible, under the decision that evidence of facts transpiring previous to the order of the chancellor of the 26th August, 1839, would not be received; and a declaration of the relator that he intended to take the child out of the state, was proved on the part of the defendant. On the 30th of April, 1840, judge Inglis made his final decision in the matter, whereby he held there was no imprisonment or restraint or unlawful withholding of the infant child, Mary Mercein Barry, and accordingly dismissed the habeas corpus.</p> <p>The relator sued out a certiorari, removing the proceedings before judge Inglis into the supreme court. To which *writ the judge [ *71 ] made a return, stating the proceedings before him, in which he certified that the original order of the recorder directing the child to remain in the custody of her mother, and an exemplification of the’ order of the chancellor of the 26th August, 1839, were produced in evidence before him, and that at the several hearings before him, the relator offered no testimony except in relation to matters that had taken place previously to the said two orders, and offered none except in relation to the character and circumstances of the defendant, which he subsequently did not follow up with proof.</p> <p>The following points were made and insisted upon by the relator:</p> <p>1. The decision of judge Inglis, that the proceedings before the chancellor made the subject matter of the habeas corpus, res adjudieata, and excluded the consideration of those matters, was erroneous.</p> <p>2. That point had been fully considered and decided the other way by the chancellor, acting as a commissioner under the statute, who heard the case after the decision of the recorder, and “ transit in rem judicatam,” could as justly be predicated of it as of the other matters, did the law allow it of either.</p> <p>3. The judge ought to have decided the case as if it were res integra, and the rights of the relator to his child on the whole case are clear in law.</p> <p>4. The case shews a detention of the child under sanction of the parental authority of Thos. R. Mercein, and it is a mere evasion to say there is no detention, as the law defines that term.</p> <p>5. The judge erred in ruling that the proceedings of Thos. R. Mercein, after the chancellor’s adjudication, as evinced by the letters of [ *72 ] 28th August, 1839, do not amount *to an illegal detention posteri- or to such decision. Those letters prohibit the father’s access to his child, contrary to all law, and are the very highest possible evidence of illegal detention.</p> <p>6. The court is bound to meet the facts and render judgment according to law, that the father is entitled to the custody of his child, and to direct the delivery of the child to him accordingly.</p>

<p>Error from the supreme court. Wallis sued Tallmadge in the superior court of the city of Hew-York in an action of debt on bond, bearing date 26th December, 1885, in the penal sum of §16,185, conditioned for the payment of $8,092,50. The defendant pleaded: 1, non est factum ; and 2, after craving oyer of the bond, and setting it forth that on the day of the date of the bond, the plaintiff, in consideration of the sum of §12,900, executed a deed, conveying to him in fee, thirteen lots of land in the city of Hew-York, subject to a certain ^mortgage for [ *108 ] §4,807.50, which he (the defendant) assumed to pay off and cancel on record as part of the consideration expressed in the deed ; that the plaintiff covenanted that at the time of the sealing and delivery of the indenture, he was lawfully seized in his own right of a good, and indefeasible estate of inheritance in fee simple, of and in the premises, (except as to the mortgage) and that he had good right, &c., to grant, Ssc., in manner and form aforesaid. The defendant then averred that at the time, &c., the plaintiff was not lawfully seized in his own right of a good, absolute and indefeasible estate of inheritance in fee simple (except as to the mortgage) of and in the premises, and that he had not at the time, &c., good right, &c., to grant, &c. He further averred that the bond and deed were executed at the same time, and that the deed was the entire and only consideration for the bond; and inasmuch as the plaintiff was not lawfully seized of the premises or of any part thereof, he (the defendant) said that the consideration of the bond had wholly failed: concluding with a verification and prayer of judgment. To this second plea, the plaintiff demurred, and the defendant joined in demurrer. The cause was tried upon the issue of fact, and a verdict found for the plaintiff—contingent damages being assessed upon the issue of law. The court in which the suit was commenced sustained the demurrer and rendered judgment for the plaintiff, and the supreme court on writ of error affirmed the same, and in deciding the case, adverting to the opinion delivered in Whitney v. Lewis and others, 21 Wendell, 131. The defendant then removed the record into this court.</p> <p>I. A plea of the total failure of title to lands conveyed, with warranty, is a perfect bar to an action of debt upon a bond given for the purchase money.</p> <p>1. When the entire consideration of a covenant to pay money, was some act which the covenantee agreed, in the same instrument, to per- [ *109 ] form prior to, or simultaneously with *the payment, the covenantee in a suit upon the covenant, was obliged, before the R. S. to aver, and prove performance of such act, or readiness to perform it. Campbell v. Jones, 6 T. R. 570-73. Boone v. Eyre, 1 H. Blackstone 273 in note. 1 Williams’ Saunders, p. 320, note 4.</p> <p>2. This rule, although generally affirmed in cases presenting only a question of pleading, nevertheless establishes the principle that where matter of fact, even though resting merely in pais, grounded upon, and arising out of the same contract would show a total failure of the consideration of the covenant to pay, such matter will, where some technical impediment does not prevent it, discharge the covenant at law, as it ought in equity.</p> <p>3. The limitation of this principle of general justice, by the common law, in actions of covenant, to the case mentioned in division 2, was founded upon reasons purely technical, was subversive of equity, and not in harmony with the rules of law, in actions on simple contract, as recognized in this state.</p> <p>The plaintiff was not obliged to aver and prove performance of a prior act, constituting only part of the consideraton, because such a rule would deprive him of payment for what he had performed; and yet the defendant was precluded from setting up such partial failure, in reduction of the plaintiff’s demand, on the technical ground that unliquidated damages could not be set off. Davidson v. Gwynne, 12 East. 388. 7 Johns. R. 249.</p> <p>Some English judges applied this principle to actions on simple contract, but the courts of this state never did so. Le Blanc, J. 7th East, 484, note 1.</p> <p>The defence of a total failure of the consideration of a covenant to pay money, when not admissible, through the instrumentality of the rule above adverted to, as the failure of a condition precedent, was, in actions of cove, nant excluded on the technical ground that the plea setting it up, must, necessarily, bo pronounced bad, because the seal was in law conclusive proof of a consideration, and the plea, although it admitted the breach alleged, showed no excuse. 1 Chitty’s Pleadings, 483.</p> <p>*The use of the general issue in assumpsit and debt on simple [ *110 ] contract, and the broad rule of justice adopted in respect to evidence under it, i. e. that anything which showed that the plaintiff had, when he brought his suit, no right to recover, was admissible, alone prevented the application of this legal, but inequitable and inconvenient rule, to those actions. 1 Chitty’s Pleadings, 472, 3d Am. Ed. note 14, lb. 476, note (g.)</p> <p>By 2 R. S. 406, § 77, sealed instruments are placed, as it respects consideration, on the same basis as simple contracts. Case v. Boughton, 11 Wendell, 106. Johnson v. Miln, 14 Wendell, 199. See 18 Wendell, 610. 15 Wendell, 359.</p> <p>In actions on simple contract, a total failure of the consideration is, as a plea or as evidence, a perfect bar at common law. Per Chancellor, Reab v. McAllister, 8 Wend. 115,16,17, and cases cited. Cook v. Moseley, 13 Wend. 279. Ib. 607. Judd v. Denison, 10 Wend. 513. See 14 Wend. 259.</p> <p>A failure of title to the thing sold, where there is an‘express or implied warranty, is a bar, within this rule, to an action for the price, whether brought on the contract of sale or on a separate security, although fraud be not alleged. Frisbee v. Hoffnagle, 11 Johns, R. 50, and cases there cited.</p> <p>5. Even at common law, where the consideration of a covenant to pay money, is a grant of land, accompanied by an express or implied covenant of warranty, it has long been settled law, forming, perhaps, an exception to the rule, that if nothing passed by the deed, the covenant to pay the consideration money, could not be enforced. Frontin v. Small, 2 Ld. Raym. 1418. Bogart v. De Bussy, 6 Johns. R. 96.</p> <p>6. It is an elementary principle of jurisprudence, founded in the purest justice and sanctioned by innumerable decisions, that, when the consideration of a promise to pay money, has failed, the promise shall not be enforced.</p> <p>II. The plea in this case shows an entire failure of consideration, and entitled the plaintiff in error to judgment in the court below.</p> <p>*1. The covenants of seisin, &c. did not form the consideration [ *111 ] of the bond ; they are mere auxiliaries to that which formed the consideration, i. e. the grant.</p> <p>2. If the covenants of seisin, &c. did form the consideration of the bond, the plea showed a total failure of them, which would entitle the plaintiff in error, in case judgment was given for the defendant in error to recover back in a cross action precisely the same sum which was recovered in this suit; and therefore, according to these general principles of law, long recognized in all other actions on contract, and now, by R. S. rendered applicable to actions on sealed instruments, in order to effectuate justice between the parties, and to avoid vexatious litigation and circuity of action, it ought to be held good. McNeish v. Stewart, 7 Cow. 474. Luddington v. Pulver, 6 Wend. 406, deed and bond one instrument. Parker v. Parmelee, 20 John. 133, referring to 11 Johns. 525. Montague on set off, page 1. See also 6 Paige, 227.</p> <p>III. The plea cannot be adjudged bad, on general demurrer, because it does not negative a remote, conceivable possibility, i. e. that the defendant in error, when he sold in fee, had, although not seized in fee, some lesser interest. Such defect, if it be one could only be reached by a special demurrer. Waggoner v. Colvin, 11 Wendell, 27. 1 Chitty's Pleadings, 236, 7, 8, 9. Gould’s Pleadings, page 82, § 53, p. 83, §, 56, page 167, § 193. Hotham v. E. I. Company, 1 T. R. 638. Griswold v. National Ins. Co. 3 Cow. 96—117. Sir R. Bovy’s case, 1 Ventris, 217. Rex v. Pemberton, 2 Burr, 1036. Hughes v. Robotham, Cro. Eliz. 302. Challoner v. Davis, 1 Ld. Raym. 400. Stephen on Pleading, 350.</p> <p>for the defendant in error admitted that under the provisions of the Revised Statutes, 2 R. S. 406, § 77, the defendant might rebut the presumption of consideration arising from the fact that the instrument upon which he was sued was sealed, by proving a total failure of consideration ; but to enable him to do so, § 78 of the [ *112 ] same statute requires him to plead, or give notice of the ^matter, he relies upon. This the defendant here has not done. He has pleaded that the plaintiff was not seized ; but nothing beyond. Want of seisin does not show a total failure of consideration; for aught alleged the plaintiff may have had a term for 999 years, or an equitable estate, or an adverse possession within a few days of ripening into a perfect bar at the time of the conveyance, and become so in fact, at the commencement of the suit. For a defect of title in part, a purchaser in an action for breach of the covenant of seisin is entitled to recover only pro rata. 5 Johns. R. 49. 12 Id. 126. 12 Wendell, 83. The defendants should have alleged that he had obtained nothing under the deed; that he had been prevented from taking possession, or been evicted by title paramount, and set forth the name of the true owner. Having omitted to do so, the legal intendment is that he could not, with truth, make such allegations. These averments the defendant must be held to make, or the consequence will be, that in every suit brought for the recovery ef the purchase money of land sold, a plaintiff who has given covenants of seisin, may be compelled to prove not only the execution of the bond, but his title to the land sold, the consideration of the bond. In those of our sister states where the failure, or want of consideration may be set up in bar of a recovery on a sealed instrument, a purchaser of land is not permitted to allege a failure of consideration in' whole, or in part, whilst he is in the undisturbed possession of the land. 7 Martin’s Louis. R. 223. 15 Id. 111. 19 Id. 235. 1 Bailey’s So. Car. R. 217. 250, 259. By the civil law a purchaser in possession cannot rescind the contract, 2 Kent’s Comm. 472, n. a., and the same rule prevails at the common law, in respect to personal property, in case of defect of title. Where a party wishes to rescind a contract on that ground, and recover back money paid, he must return the property; and where he desires to get rid of paying any thing, he must do the same. 2 Kent’s Comm. 480. So, even in equity, an injunction to stay a suit for the recovery of the purchase money will not be granted, on the allegation of defect of title, whilst the purchaser remains in possession. 2 Johns. Ch. R. 519. According to this view of the rights of vendor and ^purchaser, justice will be done [ 413 ] to both parties. If the purchaser finds that he has not obtained what he contracted for, he either applies to chancery, to rescind the contract, on the ground that the principal inducement to the purchase has failed, and that court will do what is equitable, under the circumstances of the case, 2 Kent’s Comm. 474; or he pleads the facts, showing a total failure of consideration, in bar of the action, or gives notice of a partial failure, in reduction of the amount claimed by the vendor.</p>

<p>In a devise of real estate to one for life, and from and after his death to three others or to the survivors or survivor of them, their or his heirs and assigns forever, the remainder-men take a vested interest at the death of the testator, and consequently, though at the time of the decease of the tenant for life there be but one of the remainder-men surviving, he takes only one-third of the estate, and the heirs at law of the two others take the residue. The words of survivorship refer to the death of the testator, and not to the death of the tenant for life, unless from other parts of the will it be manifest that the intent of the testator was otherwise.*</p>

<p>The lessee of a building in the city of New-York, destroyed by order of the Mayor of the city to prevent the spreading of a conflagration, is not entitled to recover damages for merchandise in the building at the time of its destruction not belonging to him, but the property of others, and which was in his possession as a factor or commission merchant, or merely on storage.</p> <p>The supreme court are authorized upon a common law certiorari to review the decision of the common pleas of New-York, in reference to the assessment of damages for the destruction of buildings to prevent the spreading of a conflagration, and to revise for an erroneous construction of the act as to the persons entitled to relief.</p> <p>The office of a writ of certiorari considered by Senator Paige. *</p>

Error from the supreme court. Ryckman sued Delavan for a libel, and set forth in his declaration a publication of the defendant, in which it was stated, that certain malting establishments on the hill in Albany, (owned by particular individuals but not naming the plaintiff as one of those individuals) were supplied with water for malting from stagnant pools, gutters and ditches, often in such a (putrid) state *as to be green on the [ *187 J surface ; and that there were…

Error from the supreme court. The attorney general, in May, 1835, commenced an action of ejectment against the insurance company for the recovery of a lot of ground in Wall-street in the city of New-York, alleged to have escheated to the state upon the death of one Rachel White, who it was further alleged, had died seized of the lot without making any devise thereof, and leaving no heir capable of inheriting.

Error from the supreme court. Thomas Asten, as survivor, &c., brought an action of debt in the superior court of the city of New-York on a bond, executed by the defendant to him and John Baker as administrators, &c., of Abraham S. Egerton, deceased, bearing date 1st May, 1827.

Error from the supreme court. On the 5th December, 1833, an agreement was entered into between Lawrence Mersereau, on the one part, and Hazard Lewis and David Mersereau on the other, that Lawrence… Held: that the evidence was insufficient, and made a report in favor of the plaintiffs, for the sum of $839,01. The defendant applied to the supreme court to set aside the report. The court refused to set it aside and rendered judgment for the plaintiffs for the amount reported.

Motion to dismiss an appeal. A bill to foreclose a mortgage was filed by the respondents against the appellant and his wife, and E. H. Warner, on the 30th January, 1840. The mortgage was executed by Murphy and his wife to Warner, and by the latter assigned to the respondents. On the 25th May, 1840, the bill having been taken as confessed, a decree of sale was made. The counsel of the appellant was present at the making of the decree and made no opposition.

J. Van Burén appeared for the defendant in error, on the [ *252 ] cause being, called on for argument, and on producing proof *of due service of notice of argument on the attorney for the plaintiff in error, moved that the judgment be affirmed with double costs. He said that such was the practice of the supreme court.

This cause was decided on the 28th day of December, 1840. The attorney-general, on the second day of February, 1841, made a mo-6>tion for a re-argument on the merits, which was opposed by [ *253 J counsel on the part of the defendants. After advisement, the following opinion was delivered the next day.

[ *260 ] *Error from the supreme court. Kimball and Rowe, in May, 1831, brought an action of ejectment against Brown and Davis for the recovery of a lot of land, part of Legge's patent, in the county of Essex. The cause was tried in January, 1836, before the Hon. Esek Cow-en, then one of the circuit judges.

<p>Where a note, payable at a particular bank, is protested, apd in the notice of protest the amount of the note is erroneously stated, but the endorser is a party to no other note payable at that bank, whether in such case the Sufficiency of the notice is to-lae decided by the court, or by the jury—. quered.*</p>

Error from the supreme court. This case was brought into the supreme court by a certiorari issued to one of the justices of the marine court of the city of New-York, to bring up the proceedings had before him on an application, under the statute concerning summary proceedings to recover the possession of land, 2 R. S. 511, by a landlord, to obtain possession of certain demised premises on the allegation that the tenant held over.

The following is a brief statement of this case : Archibald Grade and Sons being largely ^indebted, a composition deed was executed by Archibald Gracie and his [ *314 ] creditors, whereby Gracie assigned to trustees for the benefit of his creditors certain claims he had upon the British government for illegal captures, the moneys for which, when received, to be rateably t distributed amongst his creditors, and covenanted if the amount received from the British goverment…

This was an action on the case tried at the Chenango circuit in September, 1839, before the Hon. Robert Monell, one of the circuit judges.

Error from the Rensselaer common pleas. Herrington, sued Carpenter in a justice’s court, in an action of trespass, for selling, as a constable, by virtue of an execution against him, a quantity of potatoes before they were dug from the ground which had been planted by Herrington on shares, on the land of a third person. Herrington is a poor man, having a family.

Error from the Oswego O. P. Appleton sued Bennett, in an action of assault and battery.

This was an action of assumpsit, to recover the sum agreed to be paid by the defendants to the plaintiffs, for converting a saw-mill into a steam-mill, the plaintiffs finding all the necessary machinery, and warranting the mill to do a good business, so as to saw 2,000 feet of pine timber in twelve hours. The cause was heard before a referee, who reported $434.28 in favor of the plaintiffs.

This was an action on a policy of insurance tried at the Albany circuit in April, 1840, before the Hon. John P. Cushman, one of the circuit judges.

This was an action on a policy of insurance,• tried at the Westchester circuit, in April, 1840, before the Hon. Charles H. Ruggles, one of the circuit judges. The plaintiffs were insured against loss by fire to the amount of $4,000, upon a stock of joiner’s tools and other property, in a work shop attached to the state prison at Sing Sing, for the period of one year from the 12th December, 1837.

This was an action of debt on an attachment bond, tried at the Rensselaer circuit before the Hon. John P. Cushman, one of the circuit judges. Gillespie sued out an attachment in a justices’ court against the property of Groat, and gave a bond, conditioned, among other things, to pay to Groat all damages and costs ivliieh Tie should sustain by reason of the issuing of the attachment, if Gillespie should fail to recover judgment thereon.

This was an action of assumpsit tried at the Albany circuit, in June, 1829, before the Hon. John P. Cushman, one of the circuit judges. In May, 1829, the defendant owed the plaintiff §2370-12; which debt was compromised by the defendant paying or securing one-third, or six shillings and eight pence on the pound. Subsequent to the compromise the defendant promised to pay the balance of the debt when he was able. Much testimony was given in the cause.

'sTeis was a motion to set aside a report of referees. The [ *387 ] plaintiff sued, to obtain compensation for his services as counsel in a suit prosecuted by the defendant to obtain a divorce from her husband, Aaron Burr, to whom she was married in 1833. The decree for a divorce was entered in July, 1836.

This was an action of ejectment, tried at the Schenectady circuit in October, 1839, before the Hon. John P. Cushman, one of the circuit judges. The suit was brought for the recovery of an undivided sixth part of certain premises whereof it was alleged that Richard Bond, the father of Angelica, the wife of Edward Phelan, the plaintiff in this cause, died seized.

<p>The act authorizing a landlord to pursue goods carried off demised premises, and within thirty days seize them, applies only to the goods of the tenant, and not to goods taken by a creditor from the demised premises with the assent of the tenant, in payment of a bona fide debt, though the creditor knows the rent is due, and apprehends the landlord may distrain.</p> <p>It was accordingly held in this case, that personal property taken by a bona fide mortgagee from demised premises by virtue of a mortgage, was not subject to be pursued and levied upon by a distress warrant.</p> <p>The statute 2 R. S. 70, § 5, requiring possession to accompany mortgages, has no application as between a mortgagee and landlord; but in such case, fraud in fact may be shown.</p>

<p>Obtaining goods by false pretences : Infancy. The defendant was indicted at the Chenango oyer and terminer for obtaining a fur cap, of the value of fourteen dollars, from JS. Norihrup and C. M. Brown, partners in trade,' by falsely representing himself to be a joint owner with his father of a number of cows and other stock, then being upon a farm occupied by his father. Korthrup & Brown sold the cap to him and took his note for the price, payable at a future day. When the note came to maturity, the defendant was sued, and he interposed the plea of infancy. The vendors thereupon *discontinued the suit, and procured him [ *400 ] to be indicted. At the time the defendant obtained the cap he was nineteen years old, and resided with his father who provided him with necessaries suitable to his age and condition in life. The counsel for the defendant insisted, that as under the circumstances above detailed the defendant was not capable of making a contract in respect to the cap, which in law was obligatory upon him, he could not commit a legal fraud or deceit in making the contract; and could not in law be guilty of obtaining the cap by means of the contract of purchase and false pretence, set forth in the indictment. This objection was overruled by the court of general sessions of Chenango, and the jury, under the charge of the court, found the defendant guilty. The counsel for the defendant having obtained a bill of exceptions to be sealed, the same, together with the indictment, were removed into this court to obtain the advice thereof. The case was submitted on written arguments, by</p>

This was an action of ejectment, tried at the Montgomery circuit in November, 1839, before the Hon. John Willard, one of the circuit judges. The plaintiff, John S. Dygert, shewed title to the premises in question under the last will and testament of his father, who died in 1831.

This was an action of assumpsit, tried at the Delaware circuit in May, 1840, before the Hon. John P. Cushman, one of the circuit judges. The suit was brought for the recovery of damages for the non-performance. of an agreement by the defendant to convey to the plaintiff a lot of land sold to him.

Error from the Troy mayor’s court. Shelley commenced a suit in the mayor’s court of the city of Troy against Morrison and Manning, by the filing and service of a declaration in November, 1838. The defendants pleaded to the jurisdiction of the court, alleging that they were non residents of the city of Troy, in the county of Rensselaer.

Assumpsit by a tenant in common against his co-tenants. The parties in this case were joint owners of a schooner navigating Lake Ontario. The defendants, in 1839, chartered the vessel to a third person for §1100, and received most of the money.

This was an action of assumpsit, tried at the Monroe circuit in April, 1840, before the Hon. Nathan Dayton, one of the circuit judges. . The plaintiff declared on the common money counts, and attached to the declaration a copy of a note made by the defendants, bearing date 5th October, 1839, for the sum of $400, payable three months after date, to the president, directors, and company of the bank of Western New-York, at their banking house, or to learer.

Error from the Onondaga 0. P. Blood sued Hutchins in slander, for charging him with swearing false as a witness in a suit prosecuted by Hutchins against one Way, in a justice’s court. The action was for work and labor, to which Way had pleaded the general issue. Blood testified that Hutchins told him that he was doing work for Way, who wished him to take his pay out of his (Blood’s) store ; that he, the witness, subsequently spoke to Way on the subject, who agreed to pay him.

Demurrer to plea of plene administravit. The plaintiffs declared on a bond in the penal sum of $360, executed by the testator, in his life-time.

This was an action of assumpsit, tried at the Monroe circuit in April, 1838, before the Hon. Nathan Dayton, one of the circuit judges. The suit was brought for the recovery of damages for the non-delivery of wheat sold by the defendant to the plaintiff.

<p>Error from the Madison 0. P. Hathaniel King, an attorney of the court of common pleas of the county of Madison, brought an action of trespass under the statute giving treble damages, against Peter B. Havens and others, trustees of the village of Hamilton, for cutting down six elm trees planted by him, and standing in front of his house and lot. They were planted in 1814, and in 1840 were cut down by order of the trustees, who were widening the side-walk in the village, the trees standing in the middle of the walk as proposed to be made. The defendants claimed that the ground upon which the trees stood had been dedicated to the public and gave evidence tending to establish that fact. The plaintiff on being informed of the intended attack upon his trees, forbade the person who was directed to cut them down, and told him that if the resolution of the trustees “ was carried into effect, it would afflict every member of his family.” His remonstrances however were unavailing, and he, in proper *person, filed his declaration, in which, after stating the destruc- [ *421 ] tion of the trees, he sums up his injuries as follows: “ By which destruction the said plaintiff lost great expense of time, money and labor, which he had laid out in seeking, procuring, planting, watering, cultivating and defending those trees ; and all the benefit and solace of their shade in the heat of summer, the advantage of their shelter, the refreshment and entertainment derived from their verdure and undulating motion, and the pleasure continually felt in viewing and considering them as ornamental appendages to his house ; as specimens of flourishing vegetation ; as acquaintances for a long course of years ; and as substantial enhancement of the value of his lot: whereby he also lost all the pleasure which he so often enjoyed socially with the members of his family, and with his visiting friends ; and on the other hand, was subjected to great pain of feeling on his own account, and on account of the pain inflicted on his wife and children by that destruction and also was disturbed in his business, &c. The jury found a verdict for the plaintiff, which was entered upon the record in these words: <e and the jurors of that jury, &c. say upon their oaths, that the said defendants are guilty, &c. and they assess the single damages of the said Nathaniel therefor over and above his costs and charges, to thirty dollars. The record then states that the plaintiff thereupon moved the court to order an entry to be made in the minutes, specifying that title to land had come in question on the trial of th'e cause ; and also moved the court to treble the amount of damages as assessed by the jury ; that the first motion was granted, but the second denied, and that the plaintiff thereupon excepted to the decision of the court refusing to treble the damages, and accordingly presented a bill of exceptions, which was duly signed. The bill of exceptions is then set forth, and is followed by a judgment, “ that the said plaintiff do recover against the said defendants the said thirty dollars, the single damages, so as aforesaid assessed, and also seventy-eight dollars and ninety-five cents for his costs and charges,” &c. The plaintiff sued out a writ of error, and at the last January term appeared in person and argued the case.</p> <p>insisted that in this case error did not lie; the refusal of the court to treble the damages, not being the subject of an exception, which could be passed upon by writ of error. The motion was an interlocutory proceeding, which could not properly appear upon the record, and the remedy of the plaintiff, if any, was by mandamus.</p>

The plaintiff declared for goods sold and delivered, and on the money counts. The defendants ple'aded the general issue. The cause was heard before a referee. On the hearing the plaintiff produced and proved a bill of exchange, drawn by himself on the defendants, for $1,900, dated 25 February, 1836, payable to C. A. Cook, at the Bank of Albany, sixty days after date, which was accepted by the defendants, and protested for nonpayment ; and rested.

This was an action of assumpsit, tried at the Genesee circuit, in March, 1840, before the Hon. Nathan Dayton, one of the circuit judges. [ *427 ] *The plaintiff declared for lands sold by him to the defendants, and at their request conveyed to Sherman, one of their number.

This was an action of Ejectment, tried at the Yates circuit in November, 1839, before the Hon. Daniel Moseley, one of the circuit judges. The suit was commenced in July term, 1838.

This was an action of ejectment, tried at the Yates circuit in June 1840, before the Hon. Daniel Moseley, one of the circuit judges.

This was an action of ejectment, tried at the Yates circuity in June, 1840, before the Hon. Daniel Moseley, one of the circuit judges. The suit was brought for the recovery of 109 acres of land. It was proved that John B. Ryerss was in possession of the premises by his tenants for several years previous to 1831, when he conveyed the same to one Esek Wilber, who, in the same year conveyed to Baxter, one of the plaintiffs in this cause. The defendant, George 0.

Demurrer to pleas. The declaration is on a bond, dated 19 November, 1838, executed by Misha Dorr, with sureties, for the faithful discharge of his duties as county treasurer.

This was an action of replevin, tried at the Albany circuit in June, 1839, before the Hon. John P. Cushman, one of the circuit judges. The plaintiff, on the 12th December, 1835, took a lease of the defendant of a building in the city of Albany called the Exchange Goffee-Kouse, for the term of one year from the first day of May, 1836, at an annual rent of $1,050, payable quarterly.

Error from the Otsego C. P. Susannah Hyde sued James E. Lü-throp, in an action of slander, for charging her with having stolen a quantity of flannel. The defendant had obtained a search warrant and took it to a constable to serve.

Demurrer to declaration. The plaintiff in the first count of his decíaration stated that himself and the defendants, and two other persons, viz. E. Daggett and T. L. Carson, on the 1st April, 1837, entered into articles of agreement under their hands and seals, whereby they formed a partnership in the pump business ; and that in and by the articles it was provided that the defendant, not contemplating to bestow any personal attention to the business, should periodically pay…

<p>Highways. This case arises on a certiorari directed to three of the judges of the county of Chenango, to review their doings, on an appeal made to them from the determination of the commissioners of highways of Sherburne, in respect to the laying out of a road. Application was made to the commissioners to lay out a road, and twelve freeholders were assembled and certified that the highway1 applied for was necessary and proper to be laid out. In their certificate the proposed road was described as commencing at a turnpike road running east and west through the village of Sherburne, and running thence northwardly along the west line of a lot in the possession of one Walter H. Saxton, to a certain point (particularly described,) and thence westwardly to a road (called Ohureh-street,) running from the turnpike road before mentioned to the Episcopal church in the village, (the proposed road forming a right angle, with sides of about equal length.) The commissioners refused to lay out the road, and the applicant appealed to three of the judges, who reversed the determination of the commissioners as to that part of the proposed road running westwardly from the point described in the certificate of the freeholders as the termination of the first course ; and affirmed their determination as to that part of the proposed road running northwardly from the turnpike road to the point above mentioned ; and after thus affirming the doings of the commissioners in part, and reversing them in part, the judges proceeded and laid out a road of three rods wide from the termination of the first [ *454 ] *course of the road applied for to the road called Church-street. The above facts appeared in the return to the certiorari.</p> <p>contended that the judges had not the power to affirm in part and reverse in part; that it was their duty either to affirm the doings of the commissioners by refusing to lay out the road applied for, or to reverse them by laying out the road which the freeholders had certified to be necessary.</p>

This was an action of covenant, tried at the Delaware circuit in May, 1840, before the Hon. John P. Cushman, one of the circuit judges. The plaintiff declared on a lease executed by John JET. Myer to Solomon Parsons, bearing date 1st May, 1800, conveying to the lessee in perpetuity 155 1-4 acres of land, part of lot No. 35, in the subdivision of great lot No. 19, in the Hardenberg patent, subject to an annual rent after 1st May, 1810, of $31.

This was an action on the case, tried at the Delaware circuit in June, 1840, before the Hon John P. Cushman, one of the circuit judges. The suit was brought against the defendant as a common carrier for the less of a trunk and its contents. The defendant was the managing owner of the steamboat títica, used in the transportation of passengers and their baggage between the cities of New-York and Albany, and the intermediate landing places on the Hudson river.

Demurrer to pleas. The plaintiff, in his declaration complains that being possessed of a messuage and garden, adjoining a street called Garden street, in the town of Auburn, in the county of Cayuga, the defendants caused to be constructed an embankment of the height of four feet upon and across Garden street, near his messuage and garden ; by means whereof he cannot have and enjoy his right of free and unobstructed passage unto and upon the street to and from his messuage…

Error from the Schenectady general sessions. George Gray was indicted as an accessary before the fact to a burglary committed by one John Saxby, and was tried, convicted and sentenced to the state’s prison. He sued out a writ of error.

<p>This was a reference under the statute respecting the duties of executors and administrators in the payment of debts, &c. 2 R. S. 27, et seq. The plaintiff and the defendants entered into a submission, approved by the surrogate of the city and county of New-York, to refer the matters in controversy to three referees ; and a rule for reference was accordingly entered. The plaintiff claimed $230 for his attendance as a physician upon the testator. On the hearing before the referees, the plaintiff, a resident of Columbia county, produced a paper, purporting to be a certificate granted by the president of the Medical Society of that county, certifying that he, the plaintiff, had been regularly admitted a member of such society. It bore date on the 6th June, 1837, and purported to be signed by B. Van Beuren, president. It was proved that R. Van Beuren was addressed as presi. dent of the County Medical Society; and that his name ^appeared in publications as such officer ; and that the signature [ *470 ] to the certificate was in his hand-writing. The plaintiff also produced a diploma, granted by The Medical Society of the County of Seri timer, at B'airfield, under the seal of the institution, signed by Westel Willoughby, M. D. president, and by M. Johnson, M. D. secretary, bearing date 14th January, 1835, conferring upon the plaintiff the privilege of practising physic and surgery in this state. A physician, resident in the city of New-York, proved the seal of the institution at Fairfield, and testified that he had himself obtained a diploma from that institution, under the same seal, and subscribed by the same officers; and that though he had never seen the officers, whose names were subscribed to the diploma produced, write, he had no doubt of the genuineness of the signatures, from a comparison of the diploma produced with other diplomas granted by the same institution, and particularly with that received by himself. The defendants proved that the plaintiff had not deposited a copy of his license in the clerk’s office of the county of Columbia. After hearing the evidence of the parties in relation to the medical attendance of the plaintiff, the referees made a report in favor of the plaintiff for $5116; which the defendants moved to set aside.</p> <p>insisted that the evidence was insufficient to show that the claimant, or plaintiff, was duly licensed to practise physic ; and that at all events, having neglected to deposite a copy of his license in the clerk’s office of the county in which he resided, be was not entitled to recover. The act concerning the practice of physic, in section nineteen, declares that until such license is so deposited, the physician shall be liable to all the penalties provided by law, in the same manner as if he had no license. It cannot, be that a party can maintain an action for services rendered for another, when such services, by the imposition of a penalty, are manifestly deemed by the legislature illegal.</p>

The prisoner was convicted of forgery, at the Tomkins oyer and terminer, in September, 1840, before the Hon. Robert Mosell, one of the circuit judges, and his associates.

This was. an action of covenant, tried at the Oswego circuit in June, 1840, before the Hon. Philo Gbidley, one of the circuit judges. .The action was brought on articles of agreement, bearing date 1st July, 1836, drawn up for the formation of a joint stock-company, in reference to certain real estate, owned by the plaintiff, and wTas executed by the plaintiff, by the ^defendant, and by sixteen other persons. [ *476 ] The proposition was to divide the property into…

Alexander, McLeod was indicted at the Niagara general sessions, in February, 1841, and charged with the murder of one Amos Durfee, on the 30th December, 1837. Held: the prisoner is to be discharged or remanded barely upon the return and nothing else, whether in the K. B. or common pleas.

Demurrer to pleas. The declaration in this case commences in these words: “ Washington Hunt, president of *the Lockporfc [ *606 ] Bank and Trust Company, plaintiff in this suit, by Isaac C. Col-ton, his attorney, complains of Hiram Baker, Peter Van Alstyne, and Peter Sharpe, defendants, in this suit, &c., for that whereas on, &c., at, &c., the said Hiram Baker made his certain bill of exchange in writing, bearing date, &c., and then and there directed the same to the said…

Error from the superior court of the city of New-York. White sued Acker in an action of replevin for taking a quantity of household furniture from the possession of E. Jessup, jun. levied upon by Acker, as sheriff of the city and county of New-York, by virtue of an execution against Jessup in favor of J. Seymour for $10,000. The levy was made 25th March, 1836.

This was an action on a marine policy of insurance, tried at the New-York circuit in March, 1841, before the Hon. Philo Gridley, one of the circuit judges. The insurance was upon all kinds of lawful goods and merchandizes laden or to be laden on board vessel or vessels of the assured. Corn to the amount of 1970 barrels, of the value of $1773, was laden on board a schooner at Windsor, in North Carolina, to be carried thence to New-York.

<p>An action will not lie by the county superintendents of the poor against the putative father of a bastard child on a promise to indemnify the county, made by him to the supervisor of the town in which the child was born, where it is not shewn that the supervisor in obtaining the promise acted in the premises at the request, or with the privity of the county superintendents.</p>

Libel. Demurrer to Declaration. The libel complained of, alleged to have been published on the 14th day of May, 1839, is in these words: “ Erie Canal Incendiaries. Villainy is doing its worst to destroy the Erie canal. The malignant Albany Argus, for purposes as base and infamous as ever rankled in the human breast, is exciting and inflaming kindred wretches along the Mohawk to acts of incendiarism; of this there is no shadow of doubt.

<p>This was an action of covenant, tried at the Kings’ circuit in December, 1888, before the Hon. Ogden Edwards, one of the circuit judges.</p> <p>The plaintiffs being the holders of a lease granted by the corporation of the city of New-York, on the 24th January, 1814, to Robert Fulton and William Cutting, for the establishment of a ferry between Beekman slip, in the city of Beto-York and the old ferry at Brooklyn, (now called the Fulton Ferry) for the term of 25 years from the first day of May, ensuing.the date of the lease; in which lease the corporation covenanted that they would not, during the existence of the lease grant, establish, or permit any other ferry between the city of New-York and Brooklyn to the southward of the then ferry at Catharine slip; and the defendants being desirous that a ferry should be established between Brooklyn and E. York, south of the Fulton ferry, proposed to the plaintiffs that if they would sign a consent in writing to the establishment by the corporation of the city of Eew-York, or by the legislature of the state of another ferry from Eew-York to Brooklyn, to be located on the Brooklyn side, not nearer to the Fulton ferry than south of the foot of Jeroloman street, and on the Eew-York side not nearer to the Fulton ferry than old slip, they would pay to the plaintiffs the annual sum of $4000, in equal quarterly payments, during the residue of the lease of the Fulton ferry, commencing from the time the contemplated ferry should go into operation, and the boats should commence running. The *plaintiffs accepted the proposition of the defend- [ *629 ] ants, and articles of agreement were accordingly entered into under seal on the 12th March, 1834, whereby the plaintiffs gave the desired consent, and by the said articles declared that they would use their influence to prevent the establishment of any ferry from Eew-York to Brooklyn, south of Catharine slip, other than and except the ferry by the articles consented to ; and the defendants covenanted to pay to the plaintiffs $4000 annually, according to the terms offered by them. The first quarterly payment became due on the 14th August, 1836, and was paid, and the three next payments remaining unpaid, this action was brought for the recovery of the same. On the above facta being proved, the plaintiffs rested.</p> <p>The defendants offered to prove that they applied to the corporation of the city of Eew-York for leave to establish a ferry between Eew-York and Brooklyn south of the Fulton ferry, and that it was refused until the consent of the plaintiffs was obtained. They also offered in evidence the charter of the city of Eew-York, granted the 15th January, 1730, with the purpose of shewing that the corporation of Eew York held the franchise of establishing ferries between Eew-York and Long-Island as a public municipal franchise to be by them used and exercised for the public good; that the restrictive covenant in the lease to Fulton and Cutting was illegal, and that the requirement of the corporation that the defendants should procure the consent of the plaintiffs before they would consent to the establishment of the ferry of the defendants was also illegal, and so the covenants of the defendants were void. The defendants also offered to prove that at the date of their covenant the public good, and the convenience of passengers required the establishment of a ferry south of the Fulton ferry; that Brooklyn, at the date of the lease to Fulton and Cutting, did not extend so far south as the landing place on Long Island of the ferry of the defendants ; and that at the date of the covenant the plaintiffs were citizens of this state, residing in the counties of Eew-York and Kings, were voters, and men of reputed property and [ *630 ] influence ; all which testimony being objected *to by the plain'tiffs was rejected by the judge, and the defendants excepted.</p> <p>The counsel for the defendants offered to show that the ferry actually established by them, was from a point south of Brooklyn, as known in. 1814, and contemplated in the lease of the corporation of New-York to Fulton and Cutting ; and accordingly called a witness, who testified that a street called Atlantic street, in Brooklyn, was first opened in 1834, that the defendants’ ferry was established, and always has been continued from that point, and never to the north-east of it; that Atlantic street is within the limits of the town of Brooklyn, but that the limits of the village of Brooklyn in March, 1830, and prior to the incorporation of that city, did not extend as far south as Atlantic street. The plaintiffs proved that Jeroloman street, in the city of Brooklyn, runs down to the east river, and nearly at right angles thereto ; ¡ that its termination on the east river is distant about 3420 feet southerly from the Fulton ferry, and about 800 feet northerly from the landing place of the defendants’ ferry, at the foot of Atlantic street; that there is no street running down to the river between Jeroloman and Atlantic streets ; that the village of Brooklyn, previously to the incorporation of the city of Brooklyn, was bounded on the southerly side by a road called District street; a part of which is now included within the lines of Atlantic street. A portion of Atlantic street is on the northerly side of district, street, but at its termination on the east river the greater part of it is on the southerly side of District street. District street has been discontinued, and Atlantic street has taken its place.</p> <p>The counsel for the defendants insisted that at the time of the execution of the lease to Fulton and Cutting, Brooklyn as then contemplated by the parties did not extend south of Atlantic street; and so the ferry contemplated in the defendant’s covenant had not been established, and the event upon which the annual payments depended had not happened ; that the covenant was without consideration, and also that the consideration was illegal. Upon all which points the judge ruled against the defendants, and the [ *631 J *jury under his charge found a verdict for the plaintiffs for $3,-397,87. The defendants’ counsel having excepted to the several decisions and to the charge of the judge moved for a new trial.</p>

This was- an action of ejectment, tried at the Schoharie circuit in October, 1839, before the Hon. John- P. Cushman one of the eircuit- judges. The suit was brought for the recovery of about thirty-five acres of land. The plaintiff is the widow, and the defendant the husband of Phebe, one of the daughters of Christopher *Ohesebro, upon the [ *634 ] true construction of whose last will and testament the rights of the parties depend.

Error from the New-York common pleas. Wright sued Dufau in an action of covenant, and stated in the first count of his declaration, that by a certain indenture of lease made between himself of the first part, and J. H. Marais and P. A. Aubin of the other part, bearing date 19th March, 1835, he demised certain premises to Marais and Aubin, for the term of one year from the 1st May, 1835, at the yearly rent of $225, to be paid quarterly; with the privilege of keeping the…

Demurrer to plea in error. Gosling and wife sued Acker in the common pleas of the city of New-York, in an action of replevin. The suit was brought in September, 1838, and the cause was tried in July, 1839, when the plaintiffs were nonsuited, and the damages of the defendant were assessed at $132 ; for which Sum and the costs of the defence, judgment was rendered.

Error from the New-York C. P. Hennequin sued Sands & Fox in an action of replevin in the delinet for a quantity of merchandise sold by the plaintiff to J. P. Dillentash, on the 19th September, 1838, amounting to $1,427,52.

This was an action on the case, tried at the Chemung circuit in October, 1839, before the Hon. Robert Monell, one of the circuit judges. The defendant was an innkeeper, and the plaintiff stopped at his house with a drove of 700 sheep, which, with his knowledge, was turned out to pasture.

This was an action of assumpsit, tried at the Oneida circuit in October, 1840, before the Hon.. Philo Gbidlby, one of the circuit judges. The suit was in the name of “ John J. Knox, president of the bank of Vernonan association under the general banking law of this state.

This was an action for a libel, tried at the Hew-York circuit in March, 1841, before the Hon. Philo Gthdley, one of the circuit judges. The libel is in these words: u A northern freeman enslaved by northern hands. Nov. 20, 1836, (Sunday,) Peter John Lee, a free colored man of Westchester county, N. Y., was kidnapped by Tobias Boudinot, E. R. Waddy, John Lyon and Daniel D. Nash, of New-York city, and hurried away from his wife and children into slavery.

Demurrer to declaration. The plaintiffs, describing themselves, as the president and managers of the New-Hope Delaware Bridge company, a foreign corporation duly and legally created by the laws of… Held: that under similar circumstances the action may be sustained on the common count for money lent, 8 Cowen, 20 ; 3 Wendell, 296 ; 4 Id. 652. These cases have never been directly overruled, although there have been intimations looking that way.

This was a motion to set aside a report of referees on the ground that in deciding the case they laid out of view, and did not take into consideration, evidence which had been given before them on the part of the defendant, by a witness (William Leggett) who died during an adjournment of the hearing, after he had testified on the part of the defendant, and before he had been cross-examined' on the part of the plaintiff.

Error from the Cortland C. P. Peet sued McGraw in an action of replevin for detaining a pair of sorrel mares received by him from one Julian Collins, to b.e delivered to the plaintiff.

Error from the Fulton 0. P. This was an action brought by Partridge against McMartin in a justice’s court to recover the penalty of fifty dollars given by statute against an officer who does not within ten days after goods distrained for rent shall have been sold, or after such goods shall [ *656 ] *have been replevied, file in the office of the town clerk the original warrant of distress with the original affidavit of the landlord, his agent or receiver, delivered with such…

This was an action of debt, tried at the Madison circuit in September, 1839, before the Hon. Philo Gridley, one of the circuit judges. The plaintiff, Q-eorge Sterling, declared in debt, claiming $300 for a scow boat sold to the defendants, and $300 for money lent. The defendants pleaded nil debent. On the trial the following facts appeared: On the 13th of Febuary, 1838, the plaintiff sold to the defendants a scow boat for the sum of $450.

Error from the New-York common pleas. This was an action on the case against the defendants, common carriers of a tow-boat line of vessels plying between Albany and New-York, in the transportation of goods and merchandize. The plaintiff put on board of one of the boats of the defendants a box of clothing directed to “ J. Petrie, Little Falls, Herkimer Co.,” and obtained a receipt therefor from the master of the boat, in these words: “ New-York, October 22,1836.

Teces was an action of assumpsit, tried at the Hew-York circuit in March, 1841, before the Hon. Philo Gridley, one of the circuit judges. The plaintiff claimed to recover on a promissory note, made by the defendants on the 15th April, 1836, for $192.10, payable to J. B. Glentworth, & Co. or order, six months after date, which was endorsed by the payees.

Error from the superior court of the city of New-York. The Eagle Iron Works brought an action of debt against Vanderbilt, and declared on an agreement, under seal, entered into by the parties, bearing date 8 March, 1838, whereby the plaintiffs obligated themselves to manufacture and put up on board of a boat to be built by the defendant, a low pressure steam engine similar to the engine of the steamboat Clifton, belonging to C. Yanderbilt, and also to furnish all braces for…

Error from the New-York C. P. De Graw brought an action of assumpsit against Westlake for the use and occupation of a house. Westlake had hired the premises for one year, at a rent of §601 annually, payable quarterly. The rent of the two first quarters was paid, when the defendant left the premises, alleging that they were uninhabitable,.by reason of intolerable stenches pervading the basement and other portions of the house.

This was an action on the case, tried at the Niagara circuit in October, 1839, before the Hon. Nathan Dayton, one of the circuit judges. The suit was brought for the omission of the notary of the bank in not duly presenting for payment and protesting a bill of exchange sent to the bank for collection, whereby the plaintiff lost his remedy upon the bill against the drawer, acceptor and endorser. The bill is in these words:— |1500.

<p>An affidavit of service of papers per mail, must state that the papers were enclosed in a wrapper.</p>

This was a motion made at the last December special term, for a re-taxation of costs, or that the judgment and subsequent proceedings in the cause be 'set aside for irregularity.

Motion eob Mandamus. The relator was appointed one of the associate judges of the court of general sesions of the city and county of New-York, under the act for the better organization of the criminal courts of that city, passed 14th May, 1840, and duly entered upon the discharge of the ’duties of his office, on the 20th of the same month, and has [ *681 ] continued to discharge the same down to the 20th November, and since.

The property of the Bank of Watertown, an association under the general hanking law of 1838, was put down in an assessment list of property liable to taxation to defray the necessary expenses of the village of Watertown, at $70,000 ; and upon that sum a tax was imposed. The capital of the bank consists of $46,000 in state stocks, and $39,000 in bonds and mortgages.

This is an action on a policy of insurance against fire, tried at the New-York circuit in March, 1841, before the lion. Philo Gridley, one of the circuit judges. It appeared from the inventory of the plaintiff that the loss sustained by him was in furniture and glass-ware—some of the property being totally destroyed, and another portion of it being partially damaged. The judge suggested that the cause had better be referred.

About the first of July last the defendant’s attorney gave notice of a motion for judgment, as in cases of nonsuit, to be made at the then ensuing special term in August. Previous * to the term the plaintiffs’ attorney gave a stipulation to try the cause at the then next circuit, and to pay the costs of the last *cir- [ *689 ] cuit, and of the motion.

The port of Sagg-Harbor was incorporated by an act of the legislature, passed 12th March, 1819 : See Statutes of that year, p. 46, and the free-holders and inhabitants of the port having a right} to vote at town-meetings were authorized annually to elect trustees to take charge of and manage its concerns.

The relator was sued in his character of an engineer on the state canals, by S. & L. W. Holmes, for alleged negligence on his part in the enlargement of the Erie canal in the city of Utica, by means whereof the water from the canal forced its way into the cellar of a store occupied by the plaintiffs and damaged their property.

Certiorari. At the last December special term, an application was made for a- certiorari to remove into this court *the [ *694 ] proceedings of the common council of the city of New-York, in relation to changing the grade of, and repaving Chapel-street in that city. The facts of the case are adverted to in the opinion delivered by the chief justice. The case was fully discussed by

<p>An infant imprisoned in execution in a civil suit, is entitled to a discharge from imprisonment on assigning his property, in compliance with the provisions of the statute; and such assign, mcnt is valid, notwithstanding his non-age.</p>