Volume 3 — Barbour's New York Supreme Court Reports

<p>In Equity. Motion for an order appointing Samuel P. Lyman, Esq. or some other suitable person in the city of New-York, a referee to take the testimony of Thaddeus Spencer and Jared Stebbins, and any other witnesses that may be offered in the suit, &c. The affidavit upon which the motion was founded showed that the cause was at issue upon the answers of several of the defendants and replications filed thereto, and that by an order of the court it was to be tried in Monroe county. That by a stipulation between the parties, testimony on the part of several of the defendants had been taken before Enos Pomeroy, Esq. of Rochester, and the same was not yet closed, and several of the defendants had additional testimony to take, and the cause had not been noticed for hearing at this term. That Spencer and Stebbins, of the city of New-York, were material witnesses for the plaintiff. That to procure their attendance at Rochester, as witnesses, would require an expenditure of more than $60 for witnesses’ fees alone, and that their testimony could be taken before a referee, &c. with far more convenience to them, and a saving of expense to the plaintiff That the suit was brought to foreclose a mortgage upon premises in Rochester, which are barely adequate security for the amount of the incumbrance.</p>

Motion by the plaintiff, upon a bill of exceptions, to set aside a nonsuit, and for a new trial. The cause was tried before Gridley, Circuit Judge, at the Otsego circuit, in April, 1847. The plaintiff, as sheriff of the county of Herkimer, claimed to recover in trespass against the defendants, deriving hi_s title under a levy made by virtue of an execution issued upon a judgment in favor of Joseph Carpenter, against Cornelius White, Jacob J. Lints and George Tunnicliff.

Trespass, for an assault and battery. The defendants pleaded, severally, the general issue, and gave special notices of justification. The cause was tried at the Herkimer circuit in September, 1847, before Justice Gridley.

This was an action of replevin, brought to recover sundry articles of merchandise which were claimed to be the property of the plaintiffs.

This was an action for slander, tried at the Kensselaer circuit before Parker, Circuit Judge. The alleged slander consisted in charging the plaintiff with being a thief. The defendant pleaded the general issue, and gave notice of justification. The uttering of the slanderous words was proved by James Powell qnd other witnesses.

This was an action of debt for an escape; and was tried at the Otsego circuit in September, 1847, before the Hon. Hiram Gray, one of the justices of this court. The defendant pleaded the general issue, and gave notice of special matter, viz. that he had discharged the prisoner for whose escape the suit was brought, in pursuance of a writ-of discharge allowed by a supreme court commissioner, on habeas corpus.

<p>Where a suit is brought upon an account, by the assignees thereof, in the name of-the assignor, a promissory note of the assignor, held by the defendant at the time, of the assignment of the account, but not then due, cannot be set off against such account.</p>

<p>A corporation is liable for a tort committed by its authorized agents.</p> <p>If the wrongful act was done by the direction of the corporation, trespass will lie.</p> <p>To make a master liable for the negligence or unskilfulness of his servant, while engaged in.his lawful business, there must be an allegation of negligence or unskilfulness.</p> <p>A master is not liable for the wilful acts of his servants, done without his direction.</p> <p>Where the fee of a public street is in private persons, they may lawfully make a race-way across it, to carry water to a factory; but in so doing they must not disturb the servitude or easement of way. If they do, any one who sustains a special and particular injury may maintain an action.</p> <p>Where stones, dirt, &e. are thrown upon the land of another, by persons engaged in doing an unlawful act — as erecting or continuing a nuisance — such persons are liable for all the damage sustained thereby.</p> <p>So if one, in blasting rocks on his own land, throw them upon his neighbor’s land, an action will lie; except in extreme cases, attributable to inevitable accident.</p> <p>Although a person has a right to make a proper use of his own property, yet he is not justified in disturbing the soil of the adjacent owner, in its natural state, or in casting substances upon it.</p> <p>Where a person sustains damage in consequence of the act of another in wrongfully obstructing a street by digging and blasting therein, and his buildings are injured by the throwing of stones, &c. against them — both species of injury being the result of the same aets-’-the whole transaction, with its consequences, may be set forth in one count of the declaration, in an action on the case.</p> <p>The injury, in such a case, is both direct or immediate, and consequential.</p> <p>And even if the stones, &c. are alleged to have been thrown from the defendant’s own land, it seems the plaintiff will not be obliged to bring two actions to recover all the damages sustained by him; but may recover for both injuries, in an action on the case.</p>

In Eq.uity. This was ail appeal, by the plaintiff, from a decree of the late vice chancellor of the seventh circuit, dismissing the plaintiff’s bill of complaint. The facts are sufficiently stated in the opinion of the court.

Demumiee. by the plaintiff to the 3d, 4th and 6th pleas of' the defendant, and by the defendant to the replications to the 2d and 5th pleas. The action was debt upon an award. The facts are stated in the opinion of the court.

<p>An attorney cannot recover of his client, for professional services, without proving a retainer.</p> <p>Proof of the actual performance of the services is not sufficient.</p> <p>A promise to pay for such services will not be implied, where there is no proof either of a knowledge, or a recognition, of the services by the party sought to be charged. A retainer of attorneys, for the purpose of prosecuting a writ of certiorari upon a justice’s judgment, will not be presumed from the fact that a bond upon the certio-rari, purporting to be signed by the alleged clients, has been duly approved by the proper officer, and filed, and that the justice has made a return to the writ, upon which the cause has been disposed of by the common pleas.</p> <p>Such a bond will furnish no evidence of a retainer, nor of a recognition of the suit by the parties sought to be charged, unless the execution thereof, by them, be duly proved.</p>

In July, 1846, Wilder brought an action of trespass on the case, against McAr-thur, before a justice of the peace, to recover the value of three barrels of white fish delivered to him in November, 1842, and for which McArthur had given his receipt, agreeing to pay for the same, when sold, at six dollars per barrel. The defendant pleaded the general issue, and gave notice that the fish were unwholesome, and not fit for domestic use, and therefore of no value.

Ejectment, tried at the Onondaga circuit in Sept. 1847, before Justice Gridley, without a jury; a jury being expressly waived by the consent and agreement of the parties. The pleadings in the cause being produced, it appeared that the action was brought to recover possession of a parcel of land situated in the town of Otisco, in the county of Onondaga.

Assumpsit on a policy of insurance, tried before Gridley, Circuit Judge, at the Oneida circuit, in April, 1847.

<p>In Eütjity. This was an appeal from a decree of the late vice chancellor of the fifth circuit. On the 4th of January, 1845, Charles Kathern and Harvey Doolittle, copartners in the mercantile business at Herkimer, under the firm of Kathern & Doolittle, being indebted to various persons and in various amounts, beyond their ability to pay, made an assignment of all their property, real and personal, to the complainant, in trust for the payment of the debts owing by the said firm, in the order and manner therein particularly mentioned. The complainant having accepted the trust, filed his bill in this cause against the defendants, creditors of Kathern & Harvey, and interested in the assignment, and in the property and effects thereby conveyed, and claiming to come within the preferred classes of creditors, alleging that by reason of the large amount and complex nature of several of the accounts and claims made and held by them against Kathern & Doolittle, and the intricacy of the various transactions set forth, and the various and conflicting claims that might be made against the complainant as such assignee, in respect to the trust property, the safety of the complainant and the interest of the said creditors required that the accounts should be taken and settled, and the proceeds of the trust property be paid over, by the direction and under the authority of the court of chancery. The bill then prayed for an order of reference for taking a statement or settlement of the accounts, and all disputed claims against the trust: that the assignment might be confirmed, and the debts provided for in the first and second classes thereof might be determined by the decree of the court; that the complainant’s compensation as trustee or assignee might be adjusted and settled ; and that the trust property might be disposed of and converted into money, under the authority and direction of the court; that the court would make such orders and decrees for the disposition of the proceeds thereof, and the order of the payment of the creditors, as might be proper; and that the complainant might be discharged from his trust, &c. The bill was taken as confessed as to the defendants Paul Custer, Lu-they Hall and Henry G. Harter. The other defendants appeared and put in answers; and the cause was heard, as to them, upon pleadings and proofs.</p> <p>The vice chancellor made a decree determining as to the rights of the several creditors of Kathern & Doolittle, under the assignment, and directing the order and manner in which their debts should be paid; and directing a reference to a master to take and state the accounts between the complainant as trustee, and the trust estate. By this decree it was determined that the defendants Southworth and Beach held no debt or demand against the assignors, provided for in the first four classes mentioned in the assignment; and the complainant was directed to pay to them no part of the funds realized by him under the assignment, until he should' have first paid all the debts and demands provided for in the first four classes mentioned therein. The defendants Southworth and Beach appealed from that decree.</p>

This was an action of covenant, tried at the Erie circuit in January, 1847, and was brought here by a bill of -exceptions ; which shows, that on the 28th day of July, 1841, at Buffalo, Burnett, the defendant, sold and delivered to De Witt, the plaintiff, three-eighths of the brig Queen Charlotte, and gave the plaintiff a covenant by which he (Burnett) in consideration of one dollar to him in hand paid by the plaintiff, covenanted and. agreed to pay off and discharge, within…

Kelsey sued Haddock in assumpsit for money had and received, &c. Haddock was postmaster at Buffalo, in 1844, and Kelsey was captain of a steamboat running upon Lake Erie. To sustain his action the plaintiff produced and proved a receipt as follows: “Received, Buffalo, Nov. 18, 1844, of Captain L. A. Kelsey, his receipt for mails carried by the Chesapeak, which are to be forwarded to the department and to be paid to him if paid by the department, amounting to $207,20.

Trespass, quare clausum fregit, for breaking and entering the plaintiff’s saw mill, at Poundridge in the county of West-chester, and expelling the plaintiff and his servants from the possession thereof. The defendants pleaded the general issue, and gave notice of special matter in justification. The cause was tried at the Westchester circuit in March, 1847, before Barculo, Circuit Judge.

<p>Where goods are taken upon execution while in the actual possession of the defend dant in the execution, and are replevied by a person claiming to be the owner thereof, the onus of proving that they are h¡3 property rests upon the plaintiffs But if the goods were in the possession of another, at the time of the levy, the' onus is east upon the officer making the levy, of proving property in the defendant.</p> <p>Exemplified copies of judgment records and executions, properly authenticated under the seal of the court, are admissible in evidence without a certificate of the clerk stating that the exemplification Contains the whole of the record, &d.</p> <p>Where goods taken upon execution are replevied by a person claiming to be the owner thereof, the plaintiff in the replevin suit has a right to go to the jury upon the question as to the actual possession of the goods, at the time of the levy.</p> <p>The savings of the interest arising from the separate estate of a married woman is as much separate property as the principal. And property purchased with it be^ longs to her, and is subject to the same rules as the principal fund.</p> <p>Suffering the separate property of a married woman to remain in the possession of the husband is not necessarily fraudulent, as to creditors, if the husband’s possession is not inconsistent with the trust.</p> <p>Such possession of the husband may or may not, be considered as evidence of fraud, according to circumstances. And the question of fraud is proper for the consideration of the jury.</p> <p>Whether a witness is credible, or not, is solely a question for the consideration of the jury. A nonsuit cannot be granted on the assumption, by the judge, that the plaintiff’s witness is not to be believed;</p>

Assumpsit. The action was brought to recover for work and labor done by the plaintiff for the defendant. Plea, general issue, payment and notice of sét-oíf. The defence was that the services were performed whéb the plaintiff was a minor, and while his father was living; and that the compensation for the plaintiff’s services belonged to his father, and not to him.

Motion to set aside a report of referees. The action was assumpsit, and was brought by the plaintiff as administrator of Stephen Brown, deceased, to recover for the board, nursing, &c. of James Brown, deceased, and of his father, Abraham Brown, deceased. The defendant pleaded the general issue, and the statute of limitations. The cause having been referred to referees, was heard before them; two of whom reported in favor of the defendant.

Demurrer to replication. The action was assumpsit upon a promissory note given to Martha Green, the plaintiff's testatrix, in her lifetime, and dated September 12,1837. Plea, general issue, and actio non accrevit infra sex annos.

In Equity. This was an appeal from a decree of the late assistant vice chancellor of the first circuit.

<p>This case came before this court on the return to a writ of prohibition, directed to the general sessions, requiring them t.o desist and refrain from any further proceedings upon an indictment against the relator, until the further order of this court. It appeared, from the return, that the defendant was indicted at the general sessions for an offence triable in that court; that the cause was removed into the oyer and terminer by an order of the circuit judge of the first circuit. At a subsequent oyer and terminer the indictment was ordered back to the sessions, without any notice to the relator.</p> <p>contended that the court of oyer and terminer had no power to send back an indictment which had been ordered up by a circuit judge; and especially without notice to the accused.</p>

<p>fraud in 'obtaining a promissory note is a good defence to an action brought to collect such note.</p> <p>Accordingly, where the book-keeper and cashier of a mercantile firm, by making false additions, and omitting to charge himself with large sums of money appropriated by him, had fraudulently made a balance to appear due to him, upon the books of the firm, when he was in fact indebted to the firm; and had taken a note for the balante thus appearing'; Held that, in an -action brought by him upon the note, the defendants might give in evidence the fraud of the plaintiff in procuring the «ame to be given.</p>

In Egluity. Bill and cross-bill. On the 8th day of August, 1845, George Wilkinson being the owner of a farm in Richfield, Otsego county, executed, together with his wife, a mortgage thereon to secure to John Marshall the payment of $500, with interest, in two years.

<p>Where one of several plaintiffs in a suit in equity, who has no interest in the subject matter of the litigation, is a material witness for his co-plaintiffs, their proper course, when the nature of the suit will admit of it, is to move for leave to strike out his name as a plaintiff; and if he is a necessary party, to make him a party defendant. And on his name being stricken out as a plaintiff, he may be examined as a witness for his co-plaintiffs.</p> <p>But where this is done, the remaining plaintiffs will, if required by the defendant, be ordered to give security for costs; in case there is any doubt as to their pecuniary responsibilty.</p>

<p>To render a trade or business a nuisance, it is not necessary that it should endanger the health of the neighborhood. It is sufficient ifit nroduces that which is offensive to the senses, and which renders the eniovment of life and nrouertv uncom-fgrtable.</p> <p>The occupation of a building in a city, as a slaughter house, is prima facie a nuisance to persons residing in the neighborhood; and may be restrained by injunction, notwithstanding the denial of the defendant, in his answer, that it is a nuisance.^</p> <p>A subsequent purchaser of premises injured by a nuisance erected previous to his.]; purchase, has a remedy for the injury sustained by him from the continuance of the nuisance; upon the principle that the continuation thereof is regarded as a new^, nuisance.</p> <p>Where a nuisance is a common, although not a joint injury, to several persons residing in the neighborhood, they may unite as plaintiffs in a bill to restrain the nuisance.</p> <p>But if the bill filed for that purpose, in addition to the prayer to restrain the nuisance, contains a prayer that the defendants may be decreed to pay the plaintiffs, respectively, the damages which they have sustained by the nuisance, it will be multifarious.</p> <p>That objection may be obviated, however, by striking out of the bill, that part of the prayer which asks for the payment of damages.</p> <p>Against whom a bill to restrain a nuisance should be filed.</p>

Habeas cokpus. Under the act of March 30, Í848, entitled “ An act in relation to justices and police courts in the city of New-York,” (Laws of 1848, p. 249,) Jeremiah Lothrop was elected a police justice. The prisoner, Philip Wakker, was arrested upon a warrant issued by the said justice, charging him with the commission of a crime, and was brought before him for examination.

<p>This was an action of trover for a pair of steers. The plea was the general issue. The cause was tried at the New-York circuit, in September, 1844, before Parker, Cir. Judge. On the trial the plaintiff proved that the defendant said he took the steers by the orders of Erastus Wheaton, after the plaintiff forbade his taking them. Wheaton had made an agreement with the plaintiff to purchase the steers. After this proof was introduced, the plaintiff offered, as evidence of his title to the cattle in question, and of his right of possession, as between the plaintiff and the defendant, the record of a judgment in the New-York common pleas, in an action of trover brought by the plaintiff against Wheaton for the same cattle, and the same taking, proved in this suit; in which suit Wheaton, defended on the ground of his same alleged title by purchase from the plaintiff, and in which a verdict and judgment passed for the plaintiff. The defendant objected to the admissibility of this evidence, on the ground that the parties were different, and that a verdict against Wheaton was not evidence against the defendant in this suit, for the purpose aforesaid. The circuit judge decided that if the defendant acted as Wheaton’s servant, and by his express command, the record was admissible, on proving the identity of the property, of the taking, and of the claim of title set up by Wheaton in the former suit, with those in question in this suit. It was then proved by the plaintiff that the record offered in evidence was the record of a judg-* ment in a suit for the same cattle claimed in this suit, and for the same taking complained of in this suit, and that Wheaton, in that suit, set up his claim of title and right of possession under the same alleged purchase from the plaintiff; that the defendant was a witness on the trial of that suit; and that the whole case, trial, and claim related to the same transaction given in evidence in this suit. The judge, upon this evidence, admitted the record in evidence, and the defendant excepted. The defendant offered to prove that Wheaton purchased the cattle from the plaintiff, and sold them to Andrew Wheeler, previous to the taking by the defendant; that the defendant took the cattle by Wheeler’s orders; and that the plaintiff had hot the right of possession of the cattle at the time of such taking; the same being in Wheeler. The plaintiff objected to this evidence, or any other evidence showing a right in the defendant to take the cattle under or through Wheaton’s alleged title which had been found against him; on the ground that the record of the said judgment was conclusive evidence of the plaintiff’s right to the cattle, as between the plaintiff and Wheaton, and all claiming under or through his alleged title, and acting by his express command. The judge sustained the Objection, and the evidence was excluded. The defendant thereupon exceptéd. The jury, under the advice of the judge, found a verdict for the plaintiff. The defendant, upon a bill of exceptions, now moved for a new trial.</p>

This was a motion to set aside a nonsuit. The action was debt on a bond, for the performance of covenants' other than for the payment of money, with breaches assigned in the declaration. . The cause was tried before his Honor Janies G. Hoyt,, one of the justices of this court, at the Livingston circuit, in De-. cember, 1847.

<p>This is a demurrer to a scire facias. By the scire facias it appeared that the plaintiff, in the January term of the supreme court in the year 1846, recovered a judgment against the defendant, in an action of debt on a bond, for $3357,80 of debt, and $25,11 damages. That the bond upon which the judgment was recovered was in the penal sum of $3357,80, conditioned for the payment of $1678,90, and interest, in five' instalments, as follows: $250 and interest on the first day of November, after the date of the bond, which would be November 1st, 1845, and the remaining sum of $1438,90 and interest, in four equal annual instalments from July 2d, 1845, with annual interest on the sums from time to time remaining unpaid. That the plaintiff in his declaration assigned, as a breach of the condition of the bond, the non-payment of the first instalment, as though the condition had been for the performance of covenants other than for the payment of money, had his damages assessed on such breach, and entered up his judgment thereon, the same as though the proceedings were under the statute. He then sued out this scire facias, assigning a further breach, by the nonpayment of another instalment, and claimed to have his damages assessed, &c. The defendant demurred to this scire facias, and assigned for causes of demurrer, (1.) That the said writ of scire facias is given by statute in certain cases, and is not a remedy at common law; and the writ issued in this cause is not authorized by statute, and is sued out contrary to law. (2.) This is not a case in which the plaintiff could proceed by scire facias. (3.) The breaches are improperly and defectively assigned.</p>

This was an application-, by the defendant, to strike the plaintiff’s declaration from the files bf the court, on the ground that it was placed there by a person who had never been admitted to practice as an attorney in this court.

This action was brought against the defendant, as owner of the sloop Emigrant, for supplies furnished to one Brintnall, as master of the vessel. It was tried before a referee, who reported in favor of the defendant. The plaintiffs moved to set aside the report. It was proved, before the referee, that the plaintiffs, in 1843, furnished, for the use of the vessel, upon the order of Brintnall, supplies to the amount of $67,03.

This was an action of replevin, to recover 18 sacks of wool; The defendant pleaded property in himself. The cause came on for trial at the Greene circuit in September, 184T, before Justice Willard.

This was a writ of error to the mayor’s court of the city of Albany. Boyd sued Blunt, in the court below, in assumpsit, and declared on the common counts, and also on two special counts. The defendant pleaded the general issue. It appeared in evidence that John D. Rowley commenced working for the defendant, as a carpenter, in May, 1845, being engaged in building a barn for him; and that he continued to work for the defendant until February, 1846.

This was an action of ejectment, tried at the Rensselaer circuit on tile 2d day of May, 1845.

This was an action for slander. The declaration set forth the actionable words complained of; among which were the following; “ I believe it is a state prison crime for a man to give a woman medicine to procure an abortion. Baker has given her (said Edith Hill meaning) female pills, and I expect the object is to procure abortion.

The suit was brought against Tylee, in the court below, on a note dated May 9,1840, made by him to the' North American Trust and Banking Company (not negotiable) for $2200, payable three months after date.

An attachment was issued against Marty, on the application of Yaltellina. It appeared from the petition, that the creditor was a resident of the city of New-York, but the debt was contracted out of this state. After the attachment was issued, Marty applied to the judge who issued it, for a supersedeas, upon the ground that Yaltellina was not a resident of this state; and he read affidavits, which he claimed established this fact.

In Equity. An injunction was obtained on the filing of the bill in this cause. The plaintiff gave a bond, with the usual condition, except that the clause authorizing a reference to a master to ascertain the damages which might be occasioned by the issuing of the injunction, required by the 31st rule of the late court of chancery, was omitted.

In Equity. The plaintiff filed a bill to obtain a divorce on the ground of adultery. The suit was commenced on the 22d day of January, 1847.

In Equity. This was an appeal from a decree of the late assistant vice chancellor of the first circuit, giving a construction to the will of George Rapelye deceased. For a statement of the case, and a copy of the will, see 2 Sandford’s Ch. Reports, 369.

The action was commenced November 9,1842, in a justice’s court, by Parker against Persons, where there was a recovery against the defendant, and he appealed to the Erie common pleas. In that court the plaintiff had a verdict for $228,55, upon which judgment was entered, with $156,86 costs.

In Equity. This was an application for an injunction. The bill was filed by persons owning and occupying property situate in the fifth ward of the city of New-York, in the neighborhood of the place called the north battery, on the North river, at the foot of Hubert-street.

In Equity. Motion to dissolve an injunction on bill and answer. The bill showed that on the 12th of June, 1847, the rail-road company made a contract with one Brown to grade, &c. sections 62, 63, 64 and 65 of said rail-road.

IN Equity. The plaintiffs in this suit were sureties for one Jonathan W. Huntting, for the payment of a sealed note dated 13th September, 1834, on which there was due about eight hundred dollars, and part of which they had paid.

In Equity. This was a bill for a partition of certain real estate consisting of two lots of land situate in the city of Hudson, of which the plaintiff claiméd to be seised in fee of an equal undivided moiety.

Tiiis was an action of assumpsit tried before Parker, circuit judge, at the Columbia circuit, in March, 1846. The plaintiff, upon the trial, proved the execution of a promissory note by the defendant, payable to the plaintiff or order, for two hundred and fifty dollars on demand, dated 27th February, 1843.

This was an action of assumpsit, tried before referees, bj whom a report was made in favor of the plaintiffs for $50,959,06, In November, 1838, a contract was entered into between the plaintiffs of the one part, and “the Water Commissioners of the city of New-York” of the other part, whereby the plaintiffs agreed to construct, according to specifications annexed to the contract, section 06 of the Croton aqueduct, including the receiving reservoir.

This was an action of ejectment tried at the Ulster circuit, in October, 1846, before Parker, circuit judge. The plaintiff proved a sale of the premises in question by the sheriff of Ulster, on the 19t'h of August, 1841, to one Gilbert, upon a judgment in favor of Gilbert, against the defendant. He then offered in evidence papers to show a redemption of the premises by himself, as a judgment creditor of the defendant, and a sheriff’s deed pursuant to such redemption.

<p>A declaration in replevin must allege that th? articles replevied were the goods and chattels of the plaintiff. And it is not sufficient for the plaintiff to say that the goods were taken by the defendant out of his possession, and that he was entitled to the possession of them.</p> <p>In an action of replevin the plaintiff is not at liberty to state, in his declaration, the evidence of his title, in place of an, averment of title.</p>

<p>Where, after a mortgagee had been in the uninterrupted possession of the mortgaged premises about twenty years, the mortgagee commenced proceedings to foreclose the mortgage, by advertisement under the statute; Held, that this amounted to a recognition of the mortgage as an open and subsisting security, and was to be regarded as an unqualified admission, by the mortgagee, of the mortgagor’s right to redeem; and that it was sufficient to authorize the filing of a bill for redemption, and for an account of the rents and profits, although more than twenty years had elapsed.</p> <p>It is a general principle that no lapse of time will bar' the right of a mortgagor to redeem, so long as the mortgage has been treated, by the parties, as a subsisting mortgage and security only.</p> <p>The provision of the revised statutes, prescribing a limitation of ten years to suits of exclusive equitable cognizance, does not apply to a right to redeem, which was vested and perfect before those statutes took effect.</p> <p>No statute is to have a retrospect beyond the term of its commencement. And a statute should never be sp construed as to divest a right already acquired, if it be susceptible of any other construction.</p> <p>A mortgage upon land is a mere security for the debt ¡ and the interest of the mortgagee is a mere chattel interest. <</p> <p>Terms upon which a redemption is to be allowed, where the mortgagee has gone into possession of the mortgaged promises, without a foreclosure; and the principles upon which the account of the rents and profits is to be taken.</p>

<p>In Equity. This was a creditor’s bill filed by the plaintiffs, as assignees of a judgment, against Thom, Waterman and others, the judgment debtors. The bill was taken as confessed by all the defendants except Waterman; and the suit was defended by him only upon the ground that he was surety for the other defendants in the contract upon which the judgment was recovered; and that after the recovery of the judgment the plaintiffs entered into a valid agreement with the principal debtors to delay proceedings to collect the judgment, and did suspend proceedings in pursuance of that agreement. The facts relied upon were established by the proofs.</p>

In Equity. The bill in this suit was filed for the partition of a lot of land situate in the village of Waterford. Jacob T. Wager died seised of the premises on the 18th of August, 1844, leaving Mary Wager, his widow, and John H. Wager, Garret V. S. Wager, Mary Ann Gage, and Eliza Howard, his children, and the children of his deceased daughter Mary Eliza Hummer, him surviving. Jacob T. Wager intermarried with Mary his wife, in December, 1837.

Artcher sued McCoy & duackenboss in the mayor’s court, in assumpsit, to recover for a breach of warranty of title to a promissory note of one Josiah Porter, alleged to have been sold by McCoy & C&uackenboss to Artcher, under the following circumstances.

<p>The 7th section of the 1st article of the constitution of 1847, prescribing the mode in which the compensation for private property taken for any public use shall be</p> <p>■ ascertained, is not repugnant to the act of May 10th, 1845, “to reduce the number of town officers.” Nor is that act abrogated by the 17th section of the 1st article of the constitution.</p> <p>The language of the 7th section of the 1st article of the constitution is not applicable to cases in which assessments have been made, and from which assessments appeals were pending when the constitution took effect. The words used are prospective, and are applicable only to new and original cases of assessments occurring after the 1st of January, 1847, ii seems.</p> <p>The section of the constitution which provides that assessments shall be made by a jury, or by commissioners, as shall be prescribed by law, contemplates some act of legislation on the subject; and until that has taken place, no damages can be assessed in pursuance of the constitutional provision.</p> <p>Accordingly Held that county judges, appointed in November, 1846, by the board of supervisors, to assess the damages sustained by the owner of land taken for a highway, had power, in March, 1847, to act under that appointment; and that an assessment made by them was legal and binding upon the parties. And that for the refusal of the board of supervisors to cause the damages thus assessed, to be levied and collected, a mandamus would lie, on the relation of the owner of the land.</p>

<p>This was an action of assumpsit brought to recover the amount of an attorney’s bill. The case was tried at the Otsego circuit on the. 15th day. of April, 1845, and the plaintiff obtained a verdict for $72,36. On the trial of the cause, the plaintiff’s attorney produced a taxed bill of costs in the common pleas of Otsego county, in a suit entitled Daniel Stilson, appellee, v. Charles Spoor, impleaded with Harvey Baker, and offered the same in evidence as evidence of the services and disbursements as therein charged, and the amount of the items as taxed. The plaintiff’s counsel admitted the bill was taxed ex parte, and that no copy of it, or notice of taxation, had been served on the defendant, or any one. This was after- the plaintiff had proved his retainer to conduct the su.it. The defendant’s counsel objected to the bill, on the ground that it having, been taxed ex parte, and without service, of, a copy or notice, it was not evidence of the services or disbursements charged, or of the amount as taxed; and he was proceeding to point out errors, and to raise specific objections to the bill as taxed, when t¡he plaintiff’s counsel objected to this course, and insisted that the taxed bill was conclusive as to. items and amounts, and could not be controverted or questioned on the trial. And his honor the circuit judge so ruled, and decided that the taxed bill was conclusive, and could not be controverted on the trial, and that it was unnecessary for counsel to point out or make specific objections to it, and declined hearing them, saying that the objections already made would raise the question as to the right to go into an examination of the items op the trial. And that the defendant should have moved the court, in due season, for a regular taxation; or when he found the bill had been taxed ex parte, he should have moved for a re-taxation, staying the plaintiff’s proceedings in the mean time. The bill was then given in evidence as taxed at $58,63, and the defendant’s counsel excepted.</p>

This was an action of ejectment, tried at the Tompkins circuit, in February, 1845, before the Hon. Robert Monell, one of the circuit judges. The suit was brought to recover four equal undivided fifth parts of twenty-one acres of land, being part of lot 61 in tbe town of Lansing, in the county of Tompkins, whereof Barnabas Corwin, the grandfather of the plaintiffs, died seised,, in July, 1826.

<p>This was an action on the case in the nature of waste, and came- up on a writ of error to the Tompkins common pleas, and on a bill of exceptions taken in that court uppn the trial of the cause. The facts upon which the defendant in error recovered a verdict, are as follows: On the 20th of May, 184’0, Almeron Bailey and Elizabeth Bailey his wife, and William E. Bailey, being the owners of 119 acres of land, in the town of Dryden, in the county of Tompkins, executed a bond and mortgage upon the same to Harvey A. Rice, to secure the payment of $500. On the 10th- day of August, 1842, Rice sold and assigned the bond and mortgage to the defendant in error, and afterwards, and before the ,commencement of this suit, he commenced proceedings in chancery to foreclose the mortgage. On the 26th day of August, 1844, a decree for the sale of the mortgaged premises was made, which was entered as of the 13th day of May, 1843, for the amount due on the mortgage, $604,30, and the costs of the foreclosure, amounting to $251,42., It appeared in the case that the land was an inadequate security for the amount of the decree, and that the mortgagors were insolvent. On the 4th day of September, 1844, Tan Pelt caused the land to be advertised for sale by a master in chancery, for the 17th of October. On the 21st of April, 1842, the mortgagors conveyed the land to McGvaw, one of the plaintiffs in error. The land was advertised for sale, and within a very few days of the sale McGraw, avowing that he would strip the land, drew off the fences, and cut down oak and chestnut trees, valuable for timber, and drew them off from the land, and employed many hands and teams to assist in expediting the work. The plaintiff in error, Southworth, assumed the charge of the hands, and assisted in cutting and drawing off the lumber, and when forbidden by Tan Pelt, continued the work, and when other hands were going to quit he urged them’ on, and persuaded them to continue the work. The land was considerably lessened in value by this means, and when the master’s sale took place, on the 17th of October, the land was sold for $575.</p>

<p>Where a deed, after describing the premises intended to be conveyed, tiy metes and bounds, contained these words: ¡! containing 195 acres of land,” and after excepting two pieces, one of fifty acres, and another of sixteen acres, added, “ There being in the lot hereby conveyed 135 acres, strict measure, the surplus, if any, not Jjeing hereby conveyed 5” Held, that this was not a covenant that there were 135 .acres of the land described; and that the grantor was not liable in an action of covenant, upon its turning out that the quantity of land embraced within the boundaries was less than 135 acres.</p> <p>Where land is conveyed by metes and bounds, and at the close of the description the number of acres is stated, even if the description contains positive language as to quantity, it is to be regarded only as descriptive of the lot, and not as a cover nant of quantity.</p>

This was a motion, by the plaintiff, to set aside a nonsuit, and for a new trial. The action was trespass, for cutting wood and timber on lot 84 in Duer’s patent, in tbe town of Beekman-town, in the county of Clinton. Tbe defendant pleaded the general issue, and gave notice of a license from the heirs of Benjamin Taylor, &c. The cause was tried at the Clinton -circuit in January, 1848.

Motion by the defendant to set aside a report of referees. The facts raising the points decided sufficiently appear in the opinion of the court.

Garrison sued Clark before a justice of the peace, in trover for a note, and recovered f 25.

The action was assumpsit, on a promissory note or instrument in writing, made by the defendant, payable to J. K. Avevill, and endorsed by him to the plaintiffs in due course of trade. It was in these words: “ Six months from date I guaranty to pay J. K. Averill or his order one hundred and eighty dollars, without interest.

<p>Where a horse, hired to perform a certain journey, and back, becomes disabled by lameness, while on his return, without any fault qn the part of the hirer, so that he is unable to travel, and the hirer is thereby compelled to procure other means of returning home, and to incur expenses in consequence thereof, those expenses may be recouped against the demand of the bailor, for tho hire of the horse; and if they exceed the value of the horse’s services, the bailor oannot recover in an action brought for such services.</p> <p>A person hiring a horse of another is only responsible for that degree of diligence which all prudent men use in their own affairs. He is bound to ride the horse moderately, and to treat it as carefully as any man of common discretion would treat his own, and to supply it with suitable food. If he does so, and the horse is lamed or injured, the hirer is not responsible for any damages. He is liable only for negligence, unskilfulness, or wilful misconduct.</p> <p>In an action on the case against the hirer of a horse, for so negligently taking care of the horse that he became of no value, the burthen of proof lies on the bailor. It is not enough for him to show that tho horse became disabled; but it must be shown that he became so by the fault of the defendant.</p> <p>On a contract for the hire of a vehicle usually employed to carry two persons, an agreement, on the part of the hirer, that it shall be used only to carry one, will „ not be implied.</p> <p>Where both parties are silent as to the number of persons who are to be permitted to ride in a hired carriage, the hirer is authorized to carry such number as the vehicle was made for, not exceeding the ordinary load adapted to the team drawing the same.</p>

This was an action of ejectment to recover an undivided portion of certain premises situate in the town of Cambridge. The defendants pleaded the general issue. The cause was tried at the Washington circuit, in June, 1847, and the jury found a verdict for the plaintiff. The defendants, upon a bill of exceptions, now moved for a new trial. The facts are stated sufficiently in the opinion of the court.

<p>Isaacs sued Blanchard before a justice, and declared in, trover for a coat, and also counted against him as a common carrier. Plea, the general issue. It was proved that Blanchard; was the proprietor of a stage coach running upon the river road from Whitehall to Troy, for the carrying of passengers and their baggage, and the United States mail. There was no. proof that he was in the habit of carrying goods, or packages, for hire or reward, for such as chose to employ him. It was proved by one Kelly, that on the 20th of September, 1846, he resided at Fort Miller and made a coat for the plaintiff below, worth 18 dollars, and by his directions delivered it to the driver of the stage of the defendant below, wrapped up in, a paper, directed to Benjamin Isaacs, American Hotel, East Troy. Ha insisted that it should be put on the way bill; the driver said he had no right to put it on, but he would get the next agent to do it, at Schuylerville. Another witness proved the like facts. There was no evidence to show what became of the coat. Nothing was paid or offered to be paid to the driver, and there was no evidence that it ever came to the possession of the defendant below or any of his agents. The justice gave judgment for the plaintiff below for $ 18,00 damages, and the costs; to reverse which a certiorari was brought to the Saratoga county court, and the cause came into this court, by virtue of the thirty-first section of the judiciary act of December 14, 1847. (Laws of 1847, 2d vol. 643.)</p>

This was a certiorari to a judge of the late court of common pleas of Washington county, under the act relative to summary proceedings to recover the possession of land.

This was an action of ejectment, tried at the Saratoga circuit, in May, 1846. The action was for the recovery of certain premises to which the plaintiff claimed title as the purchaser thereof at a sheriff’s sale under an execution issued upon a judgment in the supreme court, recovered by Peter Yan Ness against Isaac E. Guernsey and -Lewis Smith, the plaintiff in this suit.

<p>A bill of exceptions ought to be on so.me point of law either in admitting or rejecting evidence, or upon a challenge, or some matter of law, arising upon a fact not denied, in which either party is overruled by the court.</p> <p>A defendant cannot move for a nonsuit on the ground of the insufficiency of the plaintiff’s declaration.</p> <p>When there is any evidence, on the part of a plaintiff, of the fact put in issue by the pleadings, a refusal to nonsuit is not good cause for an exception.</p> <p>A person who is in copartnership with another in any kipd of business may maintain an action of account against his copartner. The remedy by that action is not limited to partners in mercantile copartnerships.</p> <p>After judgment of quod computet, in an action of account, and the appointment of referees, no plea can be put in by the defendant, before the referees.</p> <p>In order to charge a person in an action of account, as receiver, it is not necessary that he should have any specific appointment as such.</p>

<p>This cause was tried at the Schenectady circuit, in October^ 1847, before Justice Hand ; and after taking the evidence it was agreed by the counsel that it should be decided by Justice Harris upon a case containing the evidence, and it was submitted to him for his decision, accordingly.</p>

<p>This was an action of debt upon a judgment recovered in the supreme court, in an action of assumpsit, on the 28th of October, 1842. • The suit in which the judgment was recovered was commenced on the 22d of July, 1842, and the issue joined therein was tried in October of the same year. The defendant in this action put in a plea setting up his discharge and certificate under the bankrupt act of the United States of August, 1.841. The petition of the defendant, (it being a voluntary application,) to be decreed a bankrupt, was presented on the 27th of September, 1842, and the final discharge and certificate were, granted February 6th, 1843. This cause was tried at the Oneida circuit, in September, 1845. Various objections were taken by the plaintiff to the admission of evidence offered by the defendant in support of his plea, and overruled by the circuit judge, and his decisions were excepted to by the plaintiff. The objections are mentioned in the opinion of Allen. J. The circuit judge instructed the jury that under the evidence before them the defendant was entitled to a verdict; and they found a verdict for him, accordingly. The plaintiff having filed a bill of exceptions, now moved for a new trial,</p>

Demurrer to plea. The action was replevin in the detinet. Plea in bar, that the property was the property of the plaintiff and two other persons, naming them, with a formal traverse of the property of the plaintiff. Demurrer and joinder.

<p>Demurrer to plea. The action was trespass, and the declaration; in the first count, charged the defendant with entering upon a portion of the plaintiff’s land and premises and digging up the soil and carrying and removing the soil so dug up, to another portion of the premises, so as to raise an embankment thereon to the height of eight feet, and placing thereon and attaching thereto divers planks, timbers, and other erections. The second count was for entering upon the plaintiff’s premises and digging up, cutting down, removing and carrying away the soil tó thé d'epth of six feet, whereby a deep cutting was made on the premises, and the adjoining portions were rendered inaccessible, useless and valueless, and the plaintiff’s premises were otherwise greatly injured, and their value diminished. The third count was for carrying and conveying to a certain part of the plaintiff’s premises and placing thereon, large quantities of soil and earth, thereby erecting and raising thereon a mound, or bank, or embankment of earth, of the height of eight feet and of the width of thirty feet, whereby the lands and premises and the buildings, cfcc. of the plaintiff were greatly injured, and the use and enjoyment thereof greatly obstructed and interfered With, and the plaintiff put to great expense, inconvenience iand loss. The fourth count stated that the plaintiff owned and possessed a certain messuage and dwelling house and yard and outbuildings connected therewith, and a barn and shed therewith used ánd connected, and used and occupied by the plaintiff as an inn or tavern stand, on and adjoining a public highway which ran between the dwelling house and the bam and shed; and that the defendant raised and constructed on said highway near the said dwelling house and between the same and the barn and shed, a mound or embankment of earth eight feet high and thirty feet wide, for the distance of thirty rods, whereby the passage of th'é plaintiff and his family, servants and guests; arid óf horses, carriage^; and teams upon the highway, to and frcirri the dwelling house to the bam and shed, was obstructed and prevented, and the plaintiff had been put tó great expense in filling up and raising the space near and about Ills dwelling house and between the same and the highway, so as to render practicable and safe the passage to and from the house and highway, and had been compelled to raise úp and elevate the house and outhouses, at great expense, and whereby he was deprived of the use of the highway, and the water was thrown in and upon the dwelling house-and the cellar thereof. That the house was thereby greatly injured, and access thereto, and the use and enjoyment thereof, greatly interfered with and obstructed ; and that the plaintiff had incurred great expense in raising the house, barn and shed, and in filling up and raising the surface of the ground near and about the same, and that he was greatly injured and inconvenienced in the enjoyment of his premises, and the value thereof was greatly depreciated and diminished.</p> <p>The defendant pleaded, 1st. Not guilty, and 2dly. That by an act of the legislature passed May 7th, 1844, entitled “ An act to authorize the construction of a road from Rome, in the county of Oneida, to Oswego, in the county of Oswego,” a certain corporation was created by the name and title of the “ Rome and Oswego Road Company,” with power to construct and maintain a plank road from Rome to Oswego; that a company was duly organized in pursuance of said act, and directors chosen; that a board of five persons was appointed by the directors, who determined on the,, route of the road ; that the route so determined on coincided as nearly as was practicable with the stage route between the two places; that the company entered upon and commenced the construction of the road in accordance with the provisions of the act, upon that route; that they 'appointed and employed the defendant as their agent and servant for tiie purpose of constructing such road; that the public highway mentioned in the plaintiff’s declaration was, at the 'time when the said act was passed, and at the time of doing the acts complained'of, a part of the said stage route from Rome 'to Os'tvego'; that at the place where said acts were alleged to have been done, the route of the road so determined on coincided with the route of the highway and with the said stage route; that the board determined that the highway and stage route should at that place be the route of the said road ; that for the purpose of duly constructing said road so authorized by the said act, in the manner authorized thereby, on the said stage route, it became and was necessary to do the said' several acts in the declaration mentioned, at the places alleged in the declaration; that thereupon the defendant did, as the agent and servant of the said company, in the due and proper construction of the said road, in the manner authorized by the said act, the several acts in the declaration mentioned; that acting as such servant and agent he did, in the construction of the said road, and in doing the acts complained of, use all due and proper care and skill; and that the injuries complained of by the plaintiff, were, if they were sustained by him, unavoidably and necessarily attendant and consequent upon the due and proper construction of the road in the manner authorized by the act, on the route so determined on; which are the' same supposed grievances, <fcc.; concluding with a verification.</p> <p>The plaintiff demurred to the defendant’s second plea, and assigned the following causes of demurrer. 1. That the plea does not aver or show that the company in said plea mentioned,- or the said defendant, before entering on and taking the premises therein mentioned for the use of their said road, and before doing the acts therein mentioned, or at any time, paid or offered to pay, or took any means to ascertain or to have appraised the damages sustained or to be sustained by the plaintiff, by reason thereof. 2. That the plea does not aver or show that the com-' pany therein mentioned, or the defendant, at any time agreed with the plaintiff that they or either of them might enter on and take and use the said premises for the purpose of constructing the road in the plea mentioned, or that the plaintiff in any manner assented to, or permitted such entry, taking or use: 3. That it does not appear, and is not averred in said plea, that before the said company, or the defendant, entered on and took possession of the highway in the plea mentioned,- as is therein mentioned, the same was appraised and paid for. 4. That the act of the legislature in the plea set up and pleaded,- as the same is therein stated and pleaded, does not contain any provision for indemnity or compensation to the plaintiff, or to any person or persons whose premises might be taken and used by the said company in the manner and under the circumstances in and under which it appears by the said declaration and said second plea, that the premises of the plaintiff were taken and used. And that therefore the said act is in this respect unconstitutional and void. 5. That the said plea does not contain or show any defence to said declaration. 6. That it does not contain or show any defence to the first three counts of said declaration. 7. That it does not contain or show any defence to the fourth count of the said declaration.</p> <p>Joinder in demurrer,</p> <p>I. The plaintiff was the absolute owner of the premises in question, subject only to the right of the public to pass and repass on the same as a public highway. (1 Cowen, 88, note. 3 Kent, 432,434. Staekpole v. Healy, 16 Mass. 35. 3 Wend. 142. 25 Id. 462. 4 Hill, 140. 3 Id. 567.) II. The act incorporating the te Rome and Oswego Road Company” creates them a corporation, and professes to give them authority to take and use this highway for their own gain and profit, to construct a road thereon, to erect gates, and to demand and receive tolls, &c. In substance it authorizes, and professes to authorize them to take and use this highway for the purposes of the corporation; and thus authorizes the taking of private property for these purposes; and it makes no provision for compensation. The act is therefore in this particular unconstitutional and void, and it gave the company no power to take and use the plaintiff’s property as they did. {Const. TJ. S. art. 5 of Amendments. Const, of N. Y. art. 7, § 7. Trustees First Presb. Soc. Waterloo v. Aub. and Roch. R. Road Company, 3 Hill, 567. Seneca Road Company v. Aub. and Roch. R. R. Company, 5 Id. 170. 25 Wend. 462.) III. Irrespective of the plaintiff’s ownership of the fee of the highway, and assuming him not to be such owner, the company are liable to him as owner of the adjoining premises, for the damages stated and claimed in the fourth count. (Fletcher v. • Auburn and Syracuse R. R. Company, 25 Wend. 463.) IV. The company had no right to enter on and take this highway, till the damages mentioned in the 29th and 30th sections of the general turnpike act were appraised and paid, as provided in those sections. (Laws of 1844, p. 434, § 2. 1 R. 3. 586, |§ 29, 30, 2d ed.) V. If the 25th, 26th and 27th sections of the general turnpike act are to be deemed as incorporated in and forming part of the act in question, and as providing compensation fbr the plaintiff, and thus, obviating the objection as tos constitutionality, this action is equally sustainable; for the. company have in no respect complied with those sections. (Laws of 1844, p. 434, § 2. 1 R. 3. 585,6, §§ 25,26,27,2d ed. Blopdgood v. Mohawk, cfc. R. R. Company, 18 Wend. 1.)</p> <p>I. The locus in quo being a public highway, the Rome and Oswego Road Company, by virtue of its charter and the general turnpike law, (which is adopted as a part of its charter,) and the proceedings under the same, acquired all the rights in respect to building, repairing, amending, &c. the, road, which the commissioners of highways, or other proper officer representing the town, previously possessed. (Laws o/1844, ch. 293, p, 434, §§ 2, 5,7, 8. 1R. 3.583, §§ 29,30.) II. The statutes authorizing turnpike and other road corporations to acquire the right to use a public highway, by making compensation to the town in which it is located, and without compensation to the owner of the soil, are valid and constitutional. (1 R. L. of 1813, ch. 38, p. 228, § 3, latter part. 1 R. 3. 583, §§ 29, 30. Laxos of 1847, p. 216, ch. 210, § 26. 12 Wend. 371. Commonwealth v. Wilkinson, 16 Pick. 175.) III. The grievances complained of consisted only in the construction and improvement of the road in question with proper skill and care, and do not constitute a causé of action against the defendant. (Gov. and Co. Br. Cast PI. Manuf. v. Meredith, 4 T. R. 794. Callender v. Marsh, 1 Pick. Rep. 418. Lansing v. Smith, 8 Cowen, 146. Sedgwick on Damages, 110.)</p>

<p>In an indictm'ént for perjury, committed by the defendant upon an examination under oath as'to’ his sufficiency as a'surety for another in' a bond executed under the 4th subdivision of the 10th section of the “ act to abolish imprisonment for debt/ &c. after a conviction of the debtor and an order for his commitment under that act, it is not necessary to set forth facts sufficient to'síiow that the officer who entertained the proceedings had jurisdiction to administer the oath.</p> <p>The cases of The People v. Phelps, (6 Wend. 10.) and The People v. Warner, (Id/ 271,) questioned/but followed on the principle of stare decisis.</p>

The declaration in the court below was in assumpsit, upon the common counts for money paid, money had and received, and upon an account stated. Plea, the general issue. On the trial the plaintiff introduced in evidence an exemplified copy of a judgment record in favor of Gyre! H. Brackett, against Oscar B. Brackett, by which it appeared that judgment was rendered in the supreme court on the 21st day of October, 1836, for $2115,72 damages and costs.

In Equity. This was an appeal by the defendant Clift from a decree of the late vice chancellor of the seventh circuit, requiring' the defendant Clift to execute to the complainant, under the direction of a master, a proper release of the lands conveyed to him by John and Thaddeus Bacon, and to pay the costs of the suit, and declaring that the mortgage of the 10th of January, 1838, was a lien upon the 36$ acres of the lot only, and that the complainant’s land be forever…

Replevin for a span of horses, tried at the Onondaga circuit in September, 1847. Several exceptions were taken by the plaintiff, upon the trial, which it is not necessary to mention. The counsel for the defendants moved for a nonsuit, on the ground that the defendant Farmer was an Onondaga indian, and that a civil suit could not therefore be maintained against him.

Pryne sued Henry Westfall, jr. Martin Austin, and Caleb Jeffers, in trespass, before William Bentley, a justice of the peace.

This was an action on the case, tried at the Onondaga circuit in September, 1845, before Whiting, C. Judge. The jury having found a verdict for the plaintiff, the defendants filed a bill of exceptions and moved for a new trial. The facts, and the questions arising thereon, are stated in the opinion of the court. I. The evidence offered of the declarations of Sally Ann Flint in April, 1844, was inadmissible, and the court erred in admitting said evidence.

Mary C. Felton, by her next friend Charles T. Hicks, sued William W. Teall in an action of trover, before a justice of the peace. The plaintiff declared against the defendant for converting one newspaper, called the Michigan Expositor, of the value of six cents, and also one newspaper wrapper of the value of six cents, the property of the plaintiff. Plea the general issue. The cause was tried by a jury.

This was a special action on the case, tried at the Onondaga circuit in April, 1846, before Whiting, C. Judge. The declaration set forth the recovery of a judgment by the plaintiff in this suit against one Cyrus Cowles before a justice of the peace, on the 17th of April, 1843, for the sum of $54,67, the issuing of an execution thereon, and a levy by the constable upon certain articles of personal property belonging to Cowles, and the endorsing of such levy upon the execution.

Assumpsit, tried at the Oswego, circuit in September, 1847, before Justice Pratt. The action was brought upon two drafts drawn by Bentley, Evans &. Sumner, upon the defendant at sixty days, for $1200 each, payable to J. H. Lathrop, cashier, or order, dated September 6th, and 24th, 1845, and accepted by the defendant.

George W. Sutton sued Henry A. Dillaye and Frederick G. Dillaye before a justice of the peace. The summons was served on F. C. Dillaye only; and he alone appeared.

In Equity. Original and cross bills. The original bill was filed to foreclose a mortgage, which had been executed by one Fuller, a former owner of the premises in question, (which consisted of a large and valuable farm in the county of Onondaga,) and was the oldest lien on the premises. After the execution of this mortgage, Fuller conveyed the premises (subject to said mortgage,) to Edward Morey and the father of William C. Morey, as tenants in common.

<p>A rejoinder, by one of several defendants, to a replication averring a new promise by the defendants within six years, that he, the defendant, did not make a new promise, without denying that the other defendants did so, is bad on special demurrer.</p> <p>Stilwell v. Hasbro'itck, (1 Hill, 561,) to the contrary, overruled.</p> <p>If a demurrer states the fact on which the objection raised by it is founded, and calls the attention of the pleader to the point in which the pleading is defective, it is sufficient; without saying, in words, that the pleading is argumentative, or is incapable of trial by reason of the party’s pleading the law instead of the fact.</p>

This was an action of debt, brought by the plaintiff as overseer of the poor of the town of Springport, to recover penalties incurred by the defendant for violations of the excise laws.

<p>The offence of selling spirituous liquors, in violation of the excise laws, may be established by circumstantial evidence. And the fact that the defendant kept liquor in his grocery store, to sell, is competent evidence for that purpose in an action against him to recover the penalty.</p>

This was an action of ejectment brought, to recover the north half of lot No. 130, in George Scriba’s fish pond, or location in Constantia, Oswego county, and was tried before Judge Grid-ley, at the Oswego circuit, in- December, 1846. The defendant admitted that he was in possession at the commencement of the suit. The plaintiff’s counsel, for the purpose of proving title in the plaintiff, produced and read in evidence the following documentary evidence.

<p>Error to the Cortland common pleas. Ingraham brought an action of ejectment against Powers in the court below, to recover lot No. 47 in the town of Solon. On the trial it appeared that the plaintiff below was the owner of the premises, and that on the 6th day of April, 1837, he contracted by deed to sell the lot to Powers for $300, payable as follows: $30 on the 20th of March then nest, and $50 on the 20th day of March in each of the four succeeding years, and the remainder on the 20th of March, 1843, with annual interest on all the payments. Powers was to clear the enclosed land within three years, and was to reserve the timber on the west part of the lot except three acres. The interest on the principal sum was paid from time to time up to January 25, 1841, and on that day $114 was paid towards the principal. A payment of $3,50 was made August 14, 1841, and $10 August 24th, 1842. The defendant was in possession of the premises on the 7th of March, 1845, when the suit was commenced, and continued in possession. It appeared on the part of the defendant that at the same time of serving the declaration the witness served a notice which he received from the plaintiff’s attorney, as follows:</p> <p>“To Mr. Alva Powers of Solon. Sir, you are hereby required to remove from and quit the premises which you hold of me, situate in said town of Solon in the county of Cortland, and on which you now reside, within one month after service of this notice. Dated the 28th day of February, 1845. Yours, &c. Nathaniel W. Ingraham, by H. S. Conger, Att’y.”</p> <p>A nonsuit was moved for on four grounds: 1. That the defendant was entitled to notice to quit, under the statute. 2. Because the suit was brought before the expiration of the notice served. 3. That the right of entry did not accrue until after the commencement of the suit. 4. That the service of notice to quit was an admission that a tenancy existed. The court ruled against him on all these grounds. The defendant then showed that in October or November, 1844, the parties met at the office of W. EL Shankland foi the purpose of consummating their contract by the defendant’s paying the balance due on it, and receiving a deed. An arrangement had before then been made between the defendant and Mr. Shankland, that the latter would loan him the amount necessary for that purpose. The amount due was liquidated and a conveyance prepared, the latter before the parties arrived. The defendant wanted a larger loan, which Mr. Shankland declined; the parties retired for consultation, and on their return the plaintiff said “he had got over his pinch for money at that time, and had concluded to go without it at that time, and when he should need he would give the defendant notice. The plaintiff said he had concluded to let the contract lie as it was, a while longer. The defendant said he was willing it should remain so if the plaintiff was willing, and that when the plaintiff should want the money he should wish Mr. Shankland to let him have it.” The defendant then asked the court to charge that if the jury should find from the evidence that there was a parol agreement or understanding between the plaintiff and defendant, in the fall of 1844, that the defendant might remain in possession of the land until the plaintiff gave him notice to leave, this action would not lie until such notice was given, and that the fact of thq existence of such agreement should be submitted to the jury. 2d. That a parol license to occupy for a year would be good without being in writing, or until revoked, and no action of trespass or ejectment would lie in such case till the license was revoked. The court refused so to charge, but charged the iury and gave their opinion that if there was a parol agreement made between the plaintiff and defendant, that the defendant might remain in possession of the premises in question till the plaintiff gave him notice to leave, it would be void in law, and the action of ejectment could be maintained without giving notice to the defendant to leave: that there was no question of fact for the jury to pass upon, and directed them to find for the plaintiff. To which there was an exception. And the jury having found a verdict for the plaintiff, the defendant brought his writ of error.</p>

Walradt sued Maynard before a justice for moneys collected by him as attorney, and which he refused to pay over. Maynard pleaded the general issue, and gave notice of set-off for fees as attorney and counsellor, &c. A recovery was had before the justice and an appeal taken by Maynard, to the Chenango common pleas, and a trial had, in which Walradt was again successful.

<p>Ejectment for part of lot 94 in Hector, Tompkins county. Lot 94, except the state’s 100 acres, was patented to Peter Os-terhout on the 22d of Dec. 1791. Cornelius Osterhout, claiming to be the heir of the patentee, conveyed all the lands to which Peter Osterhout might be entitled, as a soldier, from the state of New-York or the United States, to William Radcliff, on the 14th of July, 1792. William Radcliff conveyed to Jacob Radcliff, April 16, 1798. Jacob Radcliff, on the 26th of May, 1815, mortgaged the premises to Brockholst Livingston, who died testate and appointed Susan F. Ledyard, his daughter, executrix of his will. The mortgage was foreclosed by her, and the premises purchased by Asgill Gibbs, in March, 1831, at $700. In March, 1844, Gibbs conveyed to George Gardner, It appeared that a man by the name of Smith was in possession in 1814, under a contract from Jacob Radcliff, and that Kenada succeeded him in 1816, as his assignee.- In 1816, and while Kenada was in possession, Eleanor Talida, otherwise called Eleanor Horton, in the case, and who claimed to be a daughter of Peter Osterhout, quit-claimed the premises to Gardner and one Mulligan. In January, 1823, an ejectment was brought upon demises from Nelly Talida, Eleanor Talida, Elijah Horton, and Nelly his wife, and Gardner and Mulligan, against Kenada. Issue was joined in May, 1823. A cognovit was given by the attorney of Kenada in February, 1824, and a judgment thereon finally perfected in June, 1836. A habere facias was issued, tested 13th of May, 1843, returnable in July, by virtue of which Kenada was dispossessed and Gardner put in possession. Before this, and on the 17th of March, 1830, Eleanor Horton conveyed the premises to Kenada with warranty. On the 2d of January, 1833, she released and discharged the judgment, if perfected, in the suit brought against Kenada in 1823, reciting that she was the only lessor of the plaintiff in that suit having title, and that it was part of the agreement under which she conveyed to Kenada that no fur-tbev proceedings should be had thereon. The jury found a verdict for the defendant, and the plaintiff moved for a new trial.</p>

The plaintiffs recovered a judgment against the defendant in 1845, before a justice, for the amount of three several promissory notes amounting to $35,6Z, and costs, upon which a certiorari was sued out and the judgments reversed, and the notes annexed to the justice’s return in that case were directed by the court to be delivered to the plaintiffs.

<p>All wilful false swearing is necessarily corrupt. Hence, if in an actiop for slander in charging the plaintiff with perjury, committed on the trial of a cause, the defendant to sustain a plea of justification, shows that the evidence given by the plaintiff was false, corruption may be inferred.</p> <p>Where, in an action for slander, the defendant justifies a charge of perjury, he must prove all the particulars which constitute the crime of perjury; viz. the deliberate deposition, the lawfully administered oath, the judicial proceeding, the absoluteness of the matter testified to, its materiality to the point in question direct or collateral, and its falsity.</p> <p>What amount of evidence is required to sustain a plea of justification in an action for slander.</p>

Demurrer to declaration. Barnes declared against Harris upon a justice’s judgment, “For that, whereas, heretofore, to wit, on the seventeenth day of May, in the year one thousand eight hundred and forty-four, at Norwich in said county of Che-nango, the said plaintiff by the consideration and judgment of Harvey Hubbard, Esq. then and yet a justice of the peace in the town of Norwich, in and for the said county of Chenango, and then and there sitting and acting as such justice…

<p>Great latitude is allowed in pleadings before justices of the peace j and courts construe them liberally.</p> <p>The office of an appeal to th,e common pleas, from a judgment rendered by a justice, is to try the cause upon the merits ; and the common pleas is restricted to the issue or issues of law framed in the court below, and appearing upon the record.</p> <p>Where, upon the trial of a cause before a justice, the plaintiff omits to reply to the defendant’s plea, or to demur to it, he will not be permitted, on appeal to the common pleas, to object to the form of the plea.</p> <p>Where a defendant in a. suit before a justice pleads his discharge under the bankrupt act, in bar, and the plaintiff goes to trial without replying to the plea, he cannot, on appeal to the common pleas, be permitted to, prove a new promise, subsequent to the discharge.</p>

MotioN by the defendant to set aside a report of referees in favor of the plaintiff. The action was assumpsit upon a contract in the following words: “ 18 Aug., 1845.

In Equity, The bill stated that on the 24th day of De-, cember, 1839, the plaintiff gave- his note to one Snyder for $90,. upon which two payments of $40 each were subsequently endorsed. That in February, 1840, he gave to the firm of Z. Pratt & Co. two notes, one for $40, the other for $20, which were afterwards, transferred to the ^defendant Scudder. That on the 8th day of' January, 1845, the plaintiff obtained a discharge under the bankrupt act of 1841.

In Equity. The bill in this cause was filed by the plaintiff for a separation from her husband, upon the ground of cruel and inhuman treatment. The defendant put in his answer upon oath, in which he denied the principal allegations in the bill in respect to unkindness and improper treatment.

This was an action for slander, tried before Parker, Cir. Judge, at the Rensselaer circuit in May, 1846. The declaration contained six counts. In the first count the plaintiff set forth a suit before a justice, in which the defendant was plaintiff and one Fowler was defendant; that the justice had jurisdiction of the suit; that on the trial of such suit the plaintiff was sworn as a witness for Fowler, and gave material evidence in his behalf.

Motion to set aside the report of a referee. The action was assumpsit. The plaintiff declared upon a promissory note dated Feb. 27, 1842, drawn by Chester Johnson, and payable to the order of J. R. Martin, (the defendant’s intestate,) for $325,22, ninety days after date, at the Troy City Bank, endorsed by J. R. Martin, Wm. Baker, (the plaintiff,) and James Burton. The declaration also contained the money counts.

In Equity. In 1829, Isaac White died intestate, and seised at the time of his death of a farm in Hillsdale, Columbia county, containing about 88 acres. Prior to the 28th of April, 1830, Walter Dorchester had purchased of the heirs of White, an undivided half of the farm, subject to the widow’s right of dower.

This was an action for false imprisonment, tried before Mr. Justice Willard at the Ulster circuit, in September, 1847. It appeared upon the trial that the defendant was a justice of the peace of the town of Rochester, and, as such justice, on the 4th day of January, 1847, issued a warrant in the following words: “ Ulster 'county, ss.

In Equity. The bill in this cause was filed to foreclose a mortgage executed by the defendant Murray to one Church, to secure the payment of f>200. The mortgage was dated July 11, 1842, and was recorded on the next day at 5 o’clock P. M. Simultaneously with the execution of this mortgage, another mortgage was executed by Murray to one Crofoot, upon the same premises, to secure the payment of $90.