Volume 3 — Caines's Cases

THIS was an action upon a policy of Insurance, on the cargo of the sloop Britton, M'Culloch master, on a voyage from Trinidad to New-York, averring the loss to be from the barratry of the master. The subscription, interest, proof of loss and being admitted, a verdict was entered for the plaintiff, subject the opinion of the Court on the following case.

ASSUMPSIT against the defendants as joint makers of a promissory note, from which Bennett had been exonerated under act for giving relief in cases of insolvency. The defendants served in their pleas, Bennett pleading his discharge, and Tooker giving notice that he should insist on that discharge, in bar of the suit against himself. The only question made, and now submitted without argument was, whether the discharge of the one would operate as a release to both?

DEBT on a bond in the penal sum of 2251. dated 17th March 1773, conditioned for the payment of 701. on the 1st of May then next, and 421. 10s. on the 1st of May, 1774.

ASSUMPSIT upon an insurance on the freight of the sloop Hannah, valued at 2000 dollars, “at and from Philadelphia to Omoa “ and Golfo Dulce, and at and from thence to Philadelphia,” at a premium of twenty-two anda half per cent. The facts as they appeared m the case made were these-nln August 1800, the vessel sailed on the voyage insured, and arrived in safety at Golfo Dulce, having earned freight to the amount of 2000 dollars.

THIS Was an action of debt upon a decree pronounced by the court of chancery for the state of New-Jersey, where, by a law passed on the 3th of June 1799, it is thus enacted. “ That when “ any cause shall be finally determined in the court of chancery,* the clerk of the court shall enter together, in order, the bill, an-“swer, pleadings, reports, decretal orders and decree in such cause, in a book to be kept for that purpose, which shall be signed by the chancellor, as of the…

<p>IN ERROR from the mayor’s court, on tin attachment by the now defendant against the ship Nancy under the act of the 10th of August 1798 “ authorizing the arrest of ships or vessels, for “ debts contracted by the master, owner or consignee, for and on “ account of such ships or vessels, in this stale.”</p> <p>The declaration contained two counts against the vessel, in actual custody of the sheriff of the city and county of New-York, alleging in the first, the work and materials furnished to amount to 96 dollars 36 cents, and in the second to 9 dollars 48 cents, and in both, that they were so afforded at the request of her cap tain, who promised to pay what they were reasonably worth, with , . . “le common averment, and notice, fee. annexing bills which contam-ecj an account of the demand. To this Murray came in and pleaded, , . —-ist, 1 he general issue as to the promises — 2dly, That the ship was not owned by a rion-resident, but by himself. On these pleas sepá- , r rate issues were taken, and a verdict being found for the plaintiff on eacV assessing the damages with interest, and giving costs judgment was entered “ that the said ship or vessel called the « Nancy, remain liable to the said John Fitzpatrick, for his damages “ &c. and also for forty five dollars and eighty-seven cents, being a j-c_ which damages in the whole fee.” The plaintiff now assigned for error, 1st, That the verdicts against the ship were rendered upon issues taken to the pleas of John Murray, who was no party to the record, neither appearance nor bail having been entered or filed for him. 2d, That by the common law, and custom of this state, no such action could be maintained. g^ That the declaration did not shew the materials fee. to have been furnished within the jurisdiction of the mayor’s court. 4th, That the act was misrpeited in using the plural number “ masters owners and consignees” instead of the singular; there being such act as that set 5th, That the declaration did not aver the ship, at the time when the materials fee. were afforded, was owned by a non-vesident. 6th, That the jury had assessed damages beyond the amount of the account annexed to the declaration. 7th, That the judgment was futile and nugatory, on which no execution could issue, and gave the plaintiff below, no other remedy than he had before. 8th, That costs were given against the vessel, for which she was not liable.</p> <p>It is in vain to attempt to support a judgment which is in itself incongruous and utterly senseless. The act cannot be carried into execution by any mode of proceedings in existence ; at least not by such as are now before the court. On the point of costs it is silent, none can be recovered. For the statute giving costs, gives them only where damages were recoverable before. Wilkinson v. Abbott, Cwop. 367. The third error is, it is conceived fatal. In all suits in inferior courts, the cause of action ought to be shewn to arise ^ withia its jurisdiction. 1 D. & E. 151.*</p> <p>Spencer, J. That is in cases where the court has a limited jurisdiction as to territory.</p> <p>Hopkins. If, however, this be otherwise, there is no such statute . as that stated. It may not perhaps be necessary to recite a public act, but when attempted, it must be faithfully done. 3 Salk. 831.† Cro. Eliz. 236.‡ 1 Com. Di. tit. action on statute. I. These authorities may be thought applicable to proceedings on indictments, and other criminal matters; but the same principle is found in actions on assumpsit. Cowp. 474. § The non residence of the owner ought to have been averred, as it is of the essence of the action. The law makes this the git of the suit, and it is ° -upon this only that the statute can be enforced. Com. Di. Tit. Pleader, c. 76. The amount of the damages ought to be confined to that stated by the bills. It is for this purpose that act requires the accounts proceeded for, to be annexed to the de-elaration. This was meant to control the damages laid; there is manifest error therefore in giving more than are claimed. If it has been intended to cover, by the excess, the interest due; it is still within the reason advanced. The bills do not demand it, and the present case is, by the statute, made essentially to differ from those in which the damages laid, are considered as the sum claimed. It may be urged that the verdict has cured some of the faults, and therefore, they cannot now be relied on for error. The rule is this, when the right, or title is set forth defectively, a verdict will cure it; but when a defective right, or title is stated, no verdict will cure it. That is, a verdict will cure form, but not substance. Doug. 679.* Time and place may thus be aided ; but not matter. Co. Litt. 303. b. 7 Rep. 25. a.† As therefore the non-residence is not averred, and the jurisdiction not shewn, the judgment must be reversed.</p> <p>The proceedings in this case are under a special apt, creating a mode contrary to the common law, and adopting a remedy in the nata re of admiralty jurisdiction. They • are therefore, to be construed with the same liberality, as that court is accustomed to use. The words of the statute are to the sa»e effect- In the Sd section, the principle of that forum is adopted. All persons having demands, are authorized to join in one declaration, the form of which is prescribed. They are to “ briefly set forth their demands, allege the work to be done at ⅝ the request of the owner, master or consignee, as the case really « is, averring demand and refusal, and annexing the accounts.’’ The act excludes the necessity of stating either non-residence, or that the cause of action arose within the jurisdiction. But there is another answer to these objections. The law requires that, previous to granting the attachment, an affidavit be made stating the fact of non-residenpe, and that the materials &c. were furnished where the vessel then is. The presumption then must be, that these circumstances have already been shewn in that part of the proceedings where it was requisite they should appear. Besides the now plaintiff has put these facts in issue; a verdict could not have been obtained without their being substantiated, and the finding, of the jury is, of course conclusive, that they were' proved. I may add on the point of jurisdiction, that it has beep decided, our courts of common pleas have geperal jurisdiction in pH transitory causes. The English decisions are to the same effect. As to the misrecital it is mere surplusage. That the assessment of damages is beyond the value of the account annexed can never be ruled an error ; because the damages laid in the declaration are beyond those recovered. With as little reason can the judgment be impeached on account of the costs allowed. The act under which the suit below was instituted, authorizes a reference according to act the for the “ amendment of the law,”* and by that, costs are given. It may be added that our “ act to reduce certain laws, concerning costs into one statute”† was passed after that authorizing the arrest of ships, and that it gives costs wherever damages are recovered. Besides the very act in question‡ gives costs against the vessel when liberated, on the claimant’s entering into bonds to pay the money for which she may be attached. The suit below rests on positive statute, not the common law. Therefore its form, and the judgment rendered are to be conformable to the act. It is ordained that the judgment shall be, that the vesse| remain liable. The court below can only affirm the rights of the ' there, and order the vessel to remain liable to them. If vise debt be satisfied, the attachment will be superseded, and the ship discharged.</p>

THIS was an action, on an open policy, for the recovery of 16,000 dollars, underwritten on the freight, by charter party, of the ship Swan from the Havanna, to New-York.

THIS was an action brought in October, 1802, on a bond, dated 4th June, 1776, conditioned for the payment of 200 pounds, with interest at 4 per cent, on the 4th day of June then next.

ON a valued policy upon the body of the ship Eliza, Henry Livingston master, from Jamaica 10 New-York, opened the 16th of November 1801, and subscribed by the defendant op the 18th, at a quarter before 12 o’clock, for the ordinary premium of six fer cent. On the trial, the policy, abandonment, and interest were proved. The latter by a British register, granted at New-Providence, in the name of the plaintiff.

<p>ASSUMPSIT for money had and received, the first count laying it to the use of the bankrupt before his bankruptcy ; the second, to that of his assignees. From the evidence disclosed at the trial, -the following appeared to be the circumstances of the case-.</p> <p>Valentine, the bankrupt, being owner of one third of the sloop Mtncy, agreed with the firm of Jackson & Perkins, who were triers owning another third, to load the vessel for the West-Indies he to furnish one half of her cargo, and they the other 5 either party to make up any deficiency that might arise on Ms, or thefr side ; the whole, however, to be sold in the West-Indies, and the proceeds invested in a return cargo. But, except in this transaction, Valentine was totally unconnected in business with the partnership of Jackson 2c Perkins, who constituted a house distinct from him ; and even in the present association, they were to share in profit and loss, yet it was to be only portion to the lading they respectively put onboard. The vessel having sailed on her voyage, Jackson & Perkins, previous to her return, in consideration of 5000 dollars, expressed to have been paid, but when in fact not one had ever passed, assigned the whole of her return cargo to Abraham Varick, and the defendant Wisner u to be applied to take up all notes drawn by Jackson & Perkins in “favor of, and indorsed by Bennet 8c Brower, so far as they might “ legally be so applied and no further.” At the time of this assignment, which was totally unknown to Valentine, the assignees, Varick 8c Wisner were perfetly acquainted with the interest of Valentine, to whom no communication of the transaction was made, and on the arrival of the sloop, before which period Valentine had stopped payment, some difficulty about the division of her cargo being apprehended, the whole was put, with the consent of all parties, into the hands of the defendants to sell on commission, upon an express undertaking by them to pay separately to each house, its respective proportion of the net proceeds. Subsequent to this, the house of Jackson & Perkins became insolvent, and Jackson being examined, swore that Valentine had, after placing the property with Morris k Wisner, agreed that his share should, in the first place, be disposed of ifi satisfaction of such balance as might be due from him to Jackson & Perkins on account of the shipment and taking up of certain bills then unpaid, but indorsed by them for Valentine, in consequence of which, they had taken up notes to the amount of 1884 dollars 94 cents. Every word of this was flatly denied by Valentine, who deposed, .that he always declared to Jackson & Perkins, that the whole of his interest, in the cargo of the Mmcy, should go to his general creditors, and that.he forbade paying any of his notes, as both he and Perkins Ec Jackson were insolvent.</p> <p>On this testimony the counsel for the defendants insisted the plaintiffs ought to be non-suited. 1st, Because Jackson & Perkins were so interested with Valentine m the cargo ol the Nancy as or otherwise, as to be enabled to make a legal transfer 0f the whole cargo. 2d, That the assignees, standing in the place of Smith Valentine, could recover no more from the defendants, than Valentine could have done from Jackson 8c Perkins, and as to trigh a balance was due, there consequently could not be a recova ery.</p> <p>The judge having overruled the last position, reserved the first for the opinion of the court, and then, leaving the credibility of the witnesses to the jurors, charged for the plaintiffs, in favor of whom the jury found.</p> <p>Application was now made to set aside this verdict, and grant a new trial for a variety of reasons. The decision of the court, however, was confined to the second only, which was, that allowing Valentine and the house of Jackson gc Perkins to be tenants in common of the cargo, and therefore, as between them no action would lie, yet the promise of the defendants to account separately to each, rendered them liable, independent of the nature of the tenancy,</p> <p>It is immaterial how many persons were interested in the property in question, or of what nature their interests were; the express promise pf the defendants was to pay according to the several rights, and therefore, became a sep? arate engagement to each, for his proportion.</p> <p>The benefit of this pro mise is claimed by assignees, and therefore subject to all the equities which could be urged against their bankrupt. The defendants are entitled under Jackson & Perkins ; whatever, theiefore, they might claim against Valentine, Morris and Wisner may, against his assignees.</p> <p>Hopkins was told it was unnecessary to reply.</p>

THIS was an action for a libel, in which a verdict for 200 dol-Jars had been rendered in favor of the plaintiff.

EJECTMENT for lands in Scifiio, in the County of Onondaga. Samuel Mitchel, the patentee from whom the lessor of the plaintiff derived title, was a soldier in the Ncio-York line, who died in October 1781, without issue, leaving a brother named Martin, and a sister called Mary.

ASSUMPSIT for work, labour, and materials in making two •drafts and models for the frigate Adams, at the defendant’s request. There being no dispute about the facts, á verdict was taken by consent, subject to the opinion of the court, on the following case. The defendant, who is publickly known as the navy agent for the general government) in consequence óf orders to have the Adams built, wrote to the plaintiff a letter, bn the subject of present suit, couched in these words.

THIS was an action for words spoken of the plaintiff, and came beiore the court on a motion m arrest or judgment. The declaration consisted of nine counts. The first, second and third, charged the defendant with saying you mere false« The fourth, fifth and sixth, with saying, you swore lo a damned lie and -you knew it.

EMOTT, on the common affidavit, that the trial of this cause would require the examination of long accounts, moved for a reference. . read an affidavit by the plaintiff, simply stat-j that as he was advised by his counsel, and verily believed, ° J the controversy would necessarily involve questions of law. submitted to the court whether the affidavit ought not to have specified what those questions of law were-*

EMOTT, moved for a rule, ordering- the lessors of the plain- . , , tiff to permit a survey to be taken by the defendant of the boun cjal.jes anc¡ marked trees of a patent under which he claimed» „ , . . - , , on an affidavit stating, that it was necessary for his defence to ascertain the fines of it. but that a person sent by him for that ' . purpose, had been prevented hy the agent of the lessors who de. rived chle under an adjoining grant,

<p>The court will not hear an applicalion for an order to stay proceedings on a case made, unless recourse has previously, and without success been had to a judge.</p>

<p>A clerical misprision in a return to a certiorari may be amended after joinder in error, when it appears to have been served to prevent the entry of a default, for want of being served with an order to stay proceedings, then applied for, and expected, but it will be allowed only on paying costs of the assignment, and resisting the application to amend.</p>

<p>That the government of the United States is interested in a cause, does not make it of importance enough to grant a struck jury.</p>

<p>If the sheriff have a surplus in his hands arising from a sale on an execution, the court will order it to be paid over, on a fi-fa. issued at the suit of another plaintiff.</p>

<p>The court will not order a justice to make a return contrary to what he has sworn to, though there appear a cirtificate from him Impeaching the return, but will leave the party to his action. If a special notice amount to the general issue, it seems unnecessary toreturn it. In a special action on the case for damages, a notice of set-off cannot be given. The court will not ut semb. order a justice to return a special notice, which, if on the record would not vary their judgment.</p>

ON certiorari to the mayor’s court after issue joined, the plaintiff, without declaring de novo here, served a notice of trial for , Tuesday, the 18th of April, and took an inquest at the last New* York sittings. on affidavits shewing these circumstances, moved to set aside the inquest, contending that the proceedings should have commenced anew, and a declaration in this court have been regularly served.

<p>If, from a change of attornies a bail bond takeno y a plaintiff deputised to arrest be lost, the court will after verdict grant leave to file common bail nunc pro tunc.</p>

<p>ON reading-the affidavit of service, it stated-the notice to have ^een delivered to the clerk of the attorney,' without saying where,</p>

UPON a policy on the sloop Dolores, Elihu Utley, master, from New -York to the Havanna, and back again, valued at one thousand four hundred dollars. The declaration was for a total loss, by the barratry of the master. Plea, non assumfisit, and a verdict taken for the plaintiff, subject to the opinion of the court on the following case, made on behalf of the defendants.

TO a declaration on a note dated the 15lh of July 18Q3, ao bnowledging there was due to the plaintiff 188 dols. 90 cts. on interest from the first day of June, with a second count for money had and received, the defendant assigned, as a special cause of demurrer to the whole declaration, the uncertainty in not specifying from what June the interest was to accrue.

ASSUMPSIT, against the defendants as the drawers of a bill exhhaiige, signed “ M-Glare Itf Co, addressed to “ Cornelius and indorsed “ William Robinson constituting the firm of M'Guire Cf Coj drew, the bill in question on Cornelius Lingo, who was oiie of the house of M'Guire and Lingo, but the two partnerships were, in fact, really distinct concerns, as appeared from the testimony of PerSotis knowing both houses, and deriving their information from the partners themselves,…

ISSUE had been joined on the first of March last, but the cause, the venue of which was laid in the county of Albany, had not been brought on at the last April circuit.

Sanford, moved to change the venue in an action of covenant, from Dutchess to Montgomery on an affidavit, stating that he had a great number of witnesses, all of whom, excepting one in Mensellaer, resided in Montgomery. The action is transitory,

EMOTT,movedto setaside a default entered 21st January last a judgment and execution thereon, upon the affidavit of the defendant swearing to merits, and, one from his attorney stating that notice of retainer and of special bailhad been in due time transmitted with the bail piece by the mail, to his agent in Albany, desiring him to serve them on the attorney of the plaintiff, and that he himself had never received a declaration. read an affidavit, setting forth that he had…

<p>A regular default &c will not be set aside on account of the ignorance of the defendant, that it was necessary to employ an attorney, though there be merits.</p>

BOGERT, moved to set aside the inquisition assessing very small damages, on account of the sheriff’s having permitted a person to remain and converse with the jury, whilst deliberating on their verdict, though known to be inimical to the plaintiffs and rejected as a juror on that account. On inquests, after a default, confessing a dause of action, there never is the same regularity, as on a trial where the very right is questioned.

THE plaintiff in this cause filed his declaration de bene cssc,. anci entered his rule to plead on the return day of the writ on . . . which the defendant was taken, but the writ was not jn fact re-tuvner] till seven days afterwards. 1 on these grounds moved to set aside the default and all subsequent proceedings. He argued, 'that to entitle the plaintiff to take default, he must himself be regular, and within the rules of practice.

WOODS moved to set aside, an inquest taken early in the last New-York sittings, in the absence of the defendants’ attorney, on an affidavit stating, that, the demand was for more than was actually due, and the cause stood so low down in the calendar as No. 116. read a deposition shewing, that the attorney for the defendants had acknowledged delay would be desirable, under their then embarrassed circumstances, and that a frivolous demurrer had already been filed and overruled.

ON the last day of February term, the defendants, Robert Colfax and Alexander Richards, entered a default against the plaintiffs for not declaring. moved to set it aside, together with the subsequent, proceedings on these facts.

TO a declaration on a promissary note, the defendant pleaded n bar, that the assumpsit was by him and Robinson jointly, and not by him separately.* The plaintiffs’ attorney considering the, plea a nullity, entered a default. moved to set it aside, and cited in support of the plea a precedent in 3 Went. 114. He said also, no plea .could be treated as a nullity, unless it appeared on the face of it to be frivolous.

IN scire facias, to revive two judgments, one for the £ 4124, the other for £ 1718, obtained in 1783, inquests had been taken at the sittings in December 1803. under an agreement that the application should be considered as in time, moved to set them aside on affidavits, which contained in substance these facts. The defendant, who lives at Platsburg in the county of Clinton, was in 1785, duly discharged under the then insolvent law of the state.

THE notice of motion was not for the first day of term, accounted for this by an affidavit, stating that he had absolutely forgotten the day on which the term commenced, imagining it to be one week later than it really was. objected to the reception of this excuse, as Mr. Towt was the attorney on the record, therefore for him the forgetfulness of Mr. Munro could afford no excuse.

on behalf of the defendants, moved for a foreign and struck jury, to be taken from the city and county of New-York, on an affidavit, stating that the suit was prosecuted at the joint expense of the inhabitants of the town of Gravesend in King's county, who had combined for the maintenance of a supposed right, claimed by them as inhabitants of the said town, of erecting huts for the purpose of fishing, upon the lands of the defendants; of taking and heaping up sea. weed, and…

<p>If a record of an incictment be lost, the court will grant leave to file one nunc pro tunc.</p>

AFTER a lengthy and desultory argument, the counsel for the plaintiff took an exception to the titling the notice of motion, and affidavit on which founded.

WOODWORTH, moved for a commission to be directed to persons in this state, to take the examination of witnesses in Pennsylvania. against its being allowed, urged the direction.

A CASE having been made, after a verdict in this cause for a very considerable sum, the justice of the demand to which was not so much questioned, as whether it should be paid to the plaintiffs, or the assignee of one of them. on an affidavit shewing that the debt was actually due, moved’ for liberty to enter up judgment, in order to bind the lands of the defendant. It is only by statute, that real estate is subjected to judgments.

<p>Practice as to orders for staying proceedings.</p>

AFTER noticing for trial, it was discovered that the defendant’s attorney had not filed the plea, a copy of which he had delivered, the plaintiff therefore entered a default as for want of a plea- To set aside this, the defendant noticed for the first day of term, but having obtained no order to stay proceedings, and not bringing on the motion upon that day, the plaintiff duly executed a writ of inquiry.

UPON a policy on two thousand three hundred bushels of corn, from New-York to Madeira, with the usual memorandum excludin grain &c. from average unless general, effected on account of Joaquim de Barros, a Portugese, resident at Bonavista, and master of the vessel in which laden.

<p>ON the 7th of January 1793, the testator, Barent Ten Eyck, by indenture of release, in consideration of £.700, granted, bargained, and sold to the plaintiff, and one Dudley Walsh in fee, two lots of ground in the city of Albany covenanting, “ That he “ the grantor was the true and lawful owner, that he was lawfully " and rightfully seised in his own right of a good and indefeasible " estate of inheritance in the premises, that he had full power " to sell in fee simple, and that the grantees should for ever “ peaceably hold and enjoy the premises without the interruption " or eviction of any person whatever, lawfully claiming the same.” In the month of May following, Walsh, for a valuable tion conveyed his moiety of these lots to Staats, who, on the 30th of October 1802, after due possession, by lease and release granted one of them to Margaret Chim in fee, and covenanted to warrant and defend her in the peaceable possession thereof. In August 1803, an ejectment was brought against Margaret Chim, in which a judgment was obtained for a moiety of the lot sold to her, execution sued out, and this followed by a recovery in an action for the mesne profits. The value of the lot, from the moiety of which Margaret Chim was thus evicted, was at the time of the sale by Ten Eyck, £. 300, and that was the consideration paid for it. Margaret Chim, being thus evicted, brought her action against the plaintiff, and recovered for the moiety she had lost.</p> <p>Upon these facts, which were submitted without argument, the following questions were raised for the determination of the court, 1st, Whether the plaintiff was entitled, under the covenants in Ten Eyck's release, to recover any more than a moiety of the consideration money paid for the lot from which Margaret Chim was evicted? 2d, Whether the interest of that consideration, and the increased value of the premises from the date of the deed to M. Clum, ought to be added ? 3d. Whether the plaintiff was entitled to any retribution for the costs and damages he had sustained by the eviction and recoveries before mentioned ?</p>

THE only question in this Cause was respecting the location of Braine’s patent, granted in the year 1752. If it extended to the line °f the manor of Rensellaer, the plaintiff would be entitled to recover, if there should be a gore between Braine’s patent and and the manor line, then the premises would be covered by that under which the defendant claimed.

THIS was an action of tresspass brought against the defendant who was commander of the United States' frigate General Green, for seizing and taking the Danish schooner William and Mary and her cargo, the property of the plaintiff. The declaration contained two counts.

SIMONDS, on an application to set aside a default and all subsequent proceedings, relied on an affidavit made by the defendants’ son, setting forth' an agreement to stop all further measures in conáequence of a settlement then made, and shewing, as a cause for the deposition being by the son, that his parents were so old and infirm they could not go to a commissioner to be sworn, but that he, the deponent, having been employed to take care of their interests, was perfectly…

ON a motion for judgment, as in case of nonsuit, after due service, and when the attorney was in court, the counsel for the plaintiff asked till the next nomenumerated day, to pre-rue an affidavit in opposition.

FISK, in an action for running a road parallel to that of the corporation, in order to draw off and injure the toll, moved to change the venue from Orange to New-York, on an affidavit stating, that from the prejudices of the county against turnpike roads, an impartial trial could not be had.

HENRY moved for judgment as in case of nonsuit on an affidavit, merely stating for “ not bringing the cause to “ trial at the last circuit in and for the county of Montgom- ery, accorading to the practice of the court, objected that it did not specify where the venue* was laid. insisted it appeared from irresistible implication, to have been in Montgomery.

<p>Neither judgment as in case of nonsuit, nor costs, nor stipulation, where, from all antecedent causes believing they could not come on, a young issue got an unexpected chance of trial.</p> <p>To gain a priority on a motion for judgment upon a frivolous demurrer, the notice must state the frivolousness as the ground of application.</p>

<p>The rule respecting reducing agreements into writing, extends to parties in the suit, as well as to attornies.</p>

<p>Rule for reference at a circuit is void, award of course set aside, but as act of court, without costs.</p>

THIS was an application for the' costs of the last circuit at West-Chester, upon an affidavit, that just as the plaintiff was ready for trial, the defendant verbally agreed to leave the matter to arbitration, which he had since refused to do, though, from a reliance on his promise, the cause was not brought on. ° _ admitted all the facts, but said he was not author-ised to consent to the motion.

AN order had been obtained, on behalf of the plaintiff, to stay proceedings till the fourth day of last term, for the purpose of affording an opportunity to move for a rule, directing the justice, in the court below, to amend his return, by inserting a written document adduced in testimony before him.

IT did not appear that notice of retainer of attorney for the defendant, had been received, but notice of bail was admitted, an exception to which was taken, (on amotion to set aside a default, and other proceedings, accompanied by an affidavit of merits,) that it was entituled “ Benajah Merrill ads. Jeunis Quick and the want of notice of retainer was also urged.

<p>The issuing of the warrant or summons in a justice's court is the com-is the commencement of the suit.</p>

<p>A regular default set aside of upon payment of cost, the defendant having supposed the suit in the common pleas, and having retained an attorney to defend there.</p>

RUSSEL, on an affidavit stating, that in the present suit, the recovery had been less than $250 ; that the verdict had. been set aside on payment oi costs, which had been taxed, at those of this court, and paid over, moved, on the part °f the defendant, that the taxation should be reviewed, and every thing received beyond the costs of the common pleas, returned. read an affidavit stating, that after the rule to set aside the verdict had been obtained, he, as attor-uey to the…

ON an application for judgment, as in case of nonsuit, the defendant wished to include, in the costs now ordered to be paid, on stipulating, those taxed on a former stipulation, given without motion, but not entered with the clerk.

<p>A conviction under the act, if after the signing the preliminary articles of peace, is void.</p>

<p>ERROR on certiorari to a justice’s court, in a qui tarn action for the penalties incurred under the seventh section of the act entituled, “ An act to lay a duty on strong liquors, “ and for regulating inns and taverns,” by which it is or-dained,† “ That if any person shall sell by retail, any strong “or spiritous liquors, without having such licence as “ aforesaid, or if any person shall sell any strong “ spiritous liquors, to be drank in his or her house, out- “ house, yard or garden, without having entered into such “ recognizance as aforesaid, every person who shall be “ guilty of either of the offences aforesaid, shall forfeit, for “ each offence, the sum of twenty-five dollars : Provided al “ ways, that no person shall be subject to be prosecuted by “ virtue of . this act, for selling metheglin, currant-wine, “ cherry-wine, or cider, to be by such -person made, and “ which shall not be drank in his house, outhouse, yard or “ garden.” By the 16th section, the penalties are recoverable “ by any person who shall prosecute for the same ; one “ moiety, when recovered, to be paid to the overseers of. the “poor.” The declaration was “as well for” Hewit “ as M t^g overseers of poor, &c. that the now plaintiff “ did “ sell, or allowed to be sold, strong or spiritous liquors to “ be drank in his house, contrary to the form, &c. and " therefore,” “ the aforesaid Thomas Blasdell is indebted,” &c. To this the defendant demurred specially, “because “ it was not set forth to whom the said strong or spiritous “ liquors were sold, nor where and the demurrer being overruled, the cause went on by consent, as if upon the general issue, in which the jury found a verdict for the plaintiff.</p> <p>assigned the following reasons : 1st, That the action was in the name of the plaintiff below, and that of the overseers ; whereas, it ought, by the statute, to have been in his own. 2d, That though the overseers of the poor of the town were entitled, the decía - ration did not state time or place where the offence was committed. 3d, That it was in the alternative, “ sold, or al- “ lowed to be sold,” and therefore wanted certainty. 4th That the kind of liquors sold was not stated. 5th, That the declaration did not negative the selling to be of the liquors mentioned in the proviso. 6th, That the conviction was not set forth.</p> <p>Per curiam. The first point relied on for error, has been determined against you this term, in a cause under the act for the inspection of flour. The answer may therefore be confined to the other objections.</p> <p>By consenting to go to trial, the now plaintiff has waived all exceptions to the proceedings. As| to the last error urged, it is never required to state a conviction, in order to warrant a judgment.</p>

THIS was an application to change the venue from the county of King's, to the city and county of New-York, on an affidavit, that all the witnesses of the defendant resided in the city of New-York.

SCOTT insisted, that the notice of motion for judgment, as in case of nonsuit, was waived by giving subsequent notice of an application for a commission.

ON a certiorari in these causes to a justice’s court, the errors relied on were, that in one it appeared on the face of the record, the justice overruled a demurrer to evidence, without any demand of judgment from the opposite party, on his having joined m it ; till which period, it was contended, there was no issue in law» That in the other, the constable, though said to be duly sworn, appeared not to have been so, as the oath set out was only, “ to attend the Í6 U said…

<p>On application for attachment for costs on non-suit, for not confessing lease, &c. the affidavit must shew that there was authority to demand them given by the lessor.</p>

THIS was an action on a policy of insurance on the schooner Neptune, from Wilmington, North-Carolina, to Kingston, Jamaica. At the foot of the instrument, was a written memorandum in these words: “ Warranting no- “ thing; policy to be proof of interest, and no insufficiency “ of papers to be of detriment to the insured.” The declaration contained no averment of interest in any one.

IN covenant, under a plea of performance, the defendant gave notice of special matter, and the judge at the trial permitted equitable evidence to be Riven, upon which a verdict was taken for the defendant. The application was to set it aside and grant a new trial.

AFTER a new trial had been ordered in this cause,* the plaintiff, on the 30th of June 1804, personally served defendant with a written notice of it, requiring him to appoint anew attorney, as his former one had been promote to the Bench, and that in default of so doing, all subsequent notices would be served by affixing the same in the the clerk of the court.

SHEPHARD moved in arrest of judgment on the following grounds : 1st. That there was a variance between the issue roll and nisi prim record; the memorandum in the first being of January term, 1803, and that of the latter in 1804. 2d. That there was no special suggestion, that the sheriff of the county was interested, and no special award to the coroner, who appeared to have returned the venire. was stopped by the court.

WOODWORTH moved to discharge a- judge’s certificate to stay proceedings, because the plaintiffhad not brought on the cause to argument this term, according to notice, though there had been ample opportunity. He contended, that the certificate expired with the term, if the party ob=. taining it neglected to bring on the argument.

<p>If a plaintiff in a justice’s court, allege that he " let" the defendant have a horse, in consideration of which the defendant "let" him have another, it shews with sufficient certainty an exchange, and not a bailment. If a former trial be pleaded in a justice's court in bar, and state the trial so that it appear it could not, according to technical rules have embraced the bar, the matter so stated, will be rejected as surplusage, and if the justice seem to have pronounced on that, which is thus rejected to support the plea, the judgment will be reversed. A set-off allowed, though improperly, in a former suit before a justice, is a good plea in bar on another for damages on the ground of a set-off; though if exception be originally taken against the set-off, it may be urged as in this court</p>

<p>ASSUMPSIT by the indorsee against the indorsor, of a note made in Rhode-Island, and indorsed to the plaintiff in this state, where he then was and now is a resident, by the defendant, whose established residence then was, and continues to be, in Pennsylvania, by the insolvent law which state, he was discharged in March, 1805. He did not include the plaintiff in the list of his creditors, nor mention the note in that of his debts, and the cause was issue long prior to his exoneration. Upon these facts it was submited to the court, whether the defendant could avail himself of the discharge in Pennsylvania, in bar of the present suit ?</p>

ASSUMPSIT on a policy of insurance on a cargo valued at 4,000 dollars. The vessel was chartered to the plaintiffs for the voyage insured, at 400 dollars per month. The day after her homeward lading was taken in, an embargo was laid on, that continued two months and six days, at the expiration of which time it was taken off, and the vessel sailed on her voyage home.

<p>A traverse may be taken to any number of facts, if the whole of those facts make only one point necessary to a defence or claim, for a point in law is not single fact.</p>

WILLIAMS moved to set aside the judgment and execu- ,■ • .. aon m this suit, or to enter up satisfaction on the judgment obtained therein on a sealed note, upon production of a writ- ,. , c , ten discharge from the plaintiff, containing a complete release of all demands, costs, íkc.'and a receipt for the balance * 1 due, which the defendant swore he paid in full consideration of the note, and without knowing that any third person had an interest therein.

ASSUMPSIT by the payee against the maker of a promissory note for two hundred dollars, given under the following circumstances : The defendant, while under arrest at the suit of the plaintiff in an action of slander, made the note in question, to be delivered into the hands of certain persons, who were to decide upon the subject of controversy between them, and in consequence of this arrangement, was instantly discharged from custody; after which the arbitrators returned the…

ON certiorari. The suit before the justice, was to recover back a fine of $ imposed by the now plaintiff upon the present defendant, for a contempt in refusing to be sworn, or answer as a witness in a cause tried before him.

. ON a promissory note to Thomas Bentley, Allen Potter, John P. Becker, and Company, the declaration commenced in this way : Albany, to wit: Thomas Bentley, Potter, John P. Becker, and Company, complain &c. To this a general demurrer. Foote insisted, that it was evident on the face of the re-corch ^at there were otherpersons not mentioned who ought to have been joined.

<p>R on the return! mons the de-tice without his journ "^n th® prayer of the mor^ftan1 six days, it is fa-ta*‘</p>

<p>COVENANT on a sealed note, with a plea of non in= fregit conventionem.</p> <p>At the trial, after the jury were called, and placed in the jury-box, the defendant tendered a plea duly verified by affidavit, that he had puis darein continuance, under the act for giving relief in cases of insolvency, obtained his discharge, an exemplified copy of which, he produced. This being rejected as coming too late, he then offered in evidence, the discharge itself, as a bar to the plaintiff’s right of recovery. Against the reception of the testimony, it was insisted, that it was not admissible under the issue joined, nor without having been specially pleaded, or notice given. The points being reserved, a verdict was taken subject to the opinion of the court, whether it should stand, or a new trial be granted.</p> <p>The plea, puis darein continuance, mustbe pleaded between the last, and the next continuance, into which it cannot be carried. Here the circuit was the next continuance, and the plea should therefore have been delivered before the first day. 3 Black. Com. 317. In no case can it be received after the jury are sworn. Paris v. Salkeld., 2 Wils. 138. The discharge could not be given in evidence, because the statute, 1 Rev. Laws, 434, allows of it only under the general issue, which is when the plea denies •r traverses the whole declaration. Imp• K. B. 324. That before the court does not do so, for it admits the execution ox the instrument.</p> <p>The plea may be tendered at any time be» fore verdict. Pearson v. Parkins, Bull N. P. 310. 7 3ac. Abr. by Guillim 358. The reasons why it must not be on the day in bank are to be seen fully stated in 4. Bac., Abr. 143, 4. From hence we may lay it down, that any time before verdict is not too late. In the very case cited from Wilson, it was ruled that the court were bound to receive the plea ; for at nisi prius it cannot be determined whether it be good or bad ; the party must be driven to his demurrer. On the second point it will be unnecessary to answer. A general issue is that which concludes to the country, and denies the declaration of the plaintiff.</p> <p>Saying that a plea oí puis darein con= tinuance, may be received before verdict, amounts only to its not being admissible after ; not that it may be tendered at any time before. If the event take place, so that it could not be availed of earlier, the doctrine applies ; as if after the commencement of the circuit, and before verdict.</p>

THE only point was, whether a party who has served a notice, without keeping a copy of it, might give parol evi« dence of its contents ?

<p>,'Pursuit alone P,ves «o right of property ‘ ⅛ ailI1Iu!s pros natura ineie-fore an ac.ior. will not lie a-^ainst a irsim for ki and ,3⅛|[18 'Ued by. and m the view of the Wf ,„orj' started, chas- * eci i!’ a"fJ point of seizing ¡'¡j ⅜,⅛⅛ can be acqu>r« session^ ⅛⅞’2* such possession fy^manacap^' tion> tin»’ it a'kfod^by* nets, snares or as to cumvent the ¿k «1. t.</p>

TROVER to'recover the'value of ten bales of cotton, bought under the following circumstances, The defendant had sold the property in question, ■ which was tying in the public store at the quarantine ground, tó one Kinworthy, for cash payable on delivery, in conse-fluence of which, a bill of parcels- had- been made out, mark-scl in tbe margin, “ cash,” but containing no receipt for the money,, This, together with an order on the storekeeper for the cotton, had, either by the…

IN ERROR on certiorari, the return set forth the warrant to have been directed to the constable of the town where the defendant “ dwelt/’ and thatthe plaintiff below, after declaring generally, thatthe defendant was indebted to him, delivered to the justice a book account, the greater pari of which was for tavern expenses.

THE plaintiff in this action shewed title by a regular conveyance from the sheriff of the county, under an execu-' tionupon a judgment in this court, signed and docketed on the twenty-third of October, 1802. He further established that before the entry of the judgment, the defendant had been, andthen was in possession of the premises.

TAN VECHTEN on an affidavit in a writ of right, setting forth that one of the electors, returned on the grand assize, bad left the state, moved to amend the pannel by adding ⅛

THIS was an action on a policy of re-assurance, in which . v j ’ a verdict for 10⅜9 dols. 26 cts. was entered by consent, in btvor of the plaintiffs, subject to the opinion of the court on the following case. Hastie and Patrick underwrote 1000 dols. of the prim!- . r tive assurance upon the body of the brig Sally, on a voyage frona Malaga to New-TorL During its prosecution the vessel was captured, carrricd into a port in Si.

EJECTMENT for lands ⅛ the county of WesUChesier. The declaration served, was captioned of August term, * ^ 1803, and the consent rule entered of the November term following.

DEBT by the inspector of New-Tork, for two penalties under the act for the 46 inspection of flour and meal,”* subject to the opinion of the court, whether he was entitled to recover both, one, or neither.

<p>An action will notiieona note given, with a blank for the date, on consideration of signing an insolvent’s discharge, and to be filled up after his exoneration, though, subsequent to its being so filled up, the maker promise to pay it, and have a sufficiency in number and value without the payee, such note being void in its creation, and not capable of being set up by a subsequent promise. A note indorsed to a third person in trust for the benefit of some relative of the in-dorsor's is, in an action by the indorsee, open to the same objections as if the suit liad been bv the indor-</p>

ON CERTIORARI. The suit below was under the . . 15th section or the act* concerning slaves and servants, to recover the penalty of 12 dols. 50 cts. for trading with the , ° . slave of the plaintiff. The declaration was for only 12 dols.” cts> stating the trading to be to.the amount of two dul-00 _ , and that the defendant had also innoculated the child 0f ⅛⅛ slave. The errors submitted were, first, that the kinds of goods §⅛! Were not set forth.

IN ERROR on certiorari, the exceptions were, 1st, that the defendant below pleaded in abatement, a misnomer, in being sued as Petris, instead of Petrie. 2d, That the declaration was uncertain and insufficient.

GOLD moved to set aside the report of referees in this suit, on an affidavit stating, that it was instituted to recover damages for a breach of contract, in not transporting 5000 staves, belonging to the plaintiffs, from Chaumont, in the •ounty of Oneida, to one Lssejtyne’s, on the river St. Lawrence, in consequence of which, the plaintiffs themselves, undertook to do it, at an unusual season of the year; and in the attempt, the raft was cast away, and 60© staves lost.

PENDLETON, having on a former day, obtained a .yule to shew cause, why an attachment should not issue against, the defendant, for appropriating- money collected for his client, who was in prison, now moved to have it made absolute, and in support of the application cited, Sayi Sí. 169» 4 Burr* 2060» Stra, 621» & l Bum 654» insisted the proceeding was unwarranted 5 that the money was retained for costs and other dé* manc^s’ anc^ ^ Slicb a measure was adopted, it would be…

IN EJECTMENT, 'the lessor of the plaintiff made tí» ⅛ ivnc’ier a sheriff’s sale, by virtue of a /?. fa. issued on a judgment against George Brownell, signed the 5 th of August, igoi in a suit, instituted before October term, 1800. The r . , . ' deiendant relied on a stile, by virtue of a ji-fa. upon ajudgment by confession, on a bond for 4000 dols. dated the 1st J 7 of October, 1800, to one Bradford Richmond, under whom she held.

•ASSUMPSIT to recover the balance of an account current. The amount of which was allowed to be just, provided the plaintiffs were entitled to compound interest on the annual rests, and had not made themselves liable for the value of a cargo consigned to them by the defendant and George Barnewall.

<p>ASSUMPSIT upon a policy of insurance on the profits of the cargo of the Mary, from Batavia to New-York, valued at six thousand dollars.</p> <p>In the prosecution of the voyage insured, the vessel experienced such violent weather, as to be under the necessity of bearing away for Saint Christopher’s, where, after a regular survey under a warrant from the admiralty, she was found to be irreparable, so as to carry on her lading, except at an expence of more than half her value. In consequence of this, as the revenue laws of the island forbade shipping the cargo in any other bottom,- it was sold at much about the same price it would have yielded in New-York, and produced on the amount of the sales, a considerable profit. Without being informed of this latter circumstance, the plaintiff, on receiving advice of the being obliged to make for the port of necessity, communicated it to the underwriters, and, on the 5th April, 1199, offered to cancel the policy. The proposition ivas accepted by some, but refused by tbe defendant. In tbe June following, the Mary arrived, bringing with her bills of exchange for a part of the property sold, and the re~ sidue in rum and molasses, in which it had been invested by the plaintiff’s agent, who was also part owner of ship and cargo. On arrival, the rum and molasses were taken by the underwritten and disposed of, but produced considerably less than they cost. The hills of exchange, were ** * ^ ^ not more -fortunate; for several of them, after being re. turned .and renewed, were finally unpaid, and on 'the whole, a loss was ultimately sustained. . ,</p> <p>, In the- latter end of November 1800, the plaintiff, in consequence of a decision of this court, on an insurance of profits on the same voyage, claimed for a total loss; and, on the 6tit of August 1802, made a, formal abandonment in wriiting,</p> <p>. Interest,, inability to- proceed with the original lading, and subscription being admitted, the plaintiff to substantiate bis demand adduced an account of profit and loss oq the cargo of the ship Mary, in which the net amount of the cargo sold st St. Christophers, after deductingcommis-sions, freight, insurance, aiid ¿11 other charges, was credited and the loss of the bills of exchange, and produce received in payment, were debited'.</p> <p>■ Upon the above, facts and statement, a verdict .was taken, for-the-plaintiff, for 657 dollars 50 cents, being- the amount-of the defendant’s right with interest, from 30 day safter, the 5th of April, 1799, subject to tbe opinion qf the court, whether the total loss and interest, from the above period, could be recovered ? or whether the interest ought to commence only from the date- of the abandonment ? or whether judgment ought to be for the defendant? The entry to be modified accordingly, and either party to he. at liberty to turn the case into a special verdict. - .</p> <p>We contend, 1st, That the voyage as to goods, having been defeated, ve are entitled to recover as for a total loss of the profits. 2d. That in an insurance on profits, no abandonment .is necessary. 3d. That if necessary, the abandonment is good,.-as, when it was made, the loss continued total,. 4th, That interest, ⅛ due from the expiration of 30 days after the notice of loss given to the underwriters.</p> <p>The recovery depends on the arrival of the goods1; for 'if they reach their port of destination, though they coiné1 to a losing market, the underwriter is exonerated. -It 13 admitted the voyage was defeated, from the irreparability of the vessel. If so, the right to recover attached. The question then arises whether an abandonment was necessary ? CJn this point the nature of the policy will serve to guide. An insurance on profits, is a'kind of heterogeneous contract, participating in the qualities of a wager,' and of an interest policy. 'Of a wager, because -at the time of subscription, there is no interest existing; of ¿ñ interest, because there is a contingency on which it will arise, and these futnre possibilities the law permits to he Insured. Some of the rales which govern on wager policies, arc equally applicable to those on profits. 'There can be no average loss, nor can there be an abandonment; Because the profits are inseparable from the goods. When they are insured, they, on abandonment, go to the finder-' writer on them, who runs the risk of losing by their sale,' and' therefore has a right to retain what may he gained. This shews the necessity of making the arrival, the'criterion of the right to recover. It is admitted that the goods did not arrive, in consequence of the inability pi the ship to perform her voyage; it follows therefore that a total loss accrued; and, though it was but technically so, still an abandonment could not be necessary, because it could give no control over the goods, and conveyed no property, or interest in them. To abandon therefore was perfectly nugatory. If a loss continue total to the time of action ' brought, in no case is an abandonment necessary, to entitle to recover the foil amount of the insurance. Earle, v. Shaw.* If it be not total, then indeed, indemnity fora F rtial tO} all that can be demanded. To ascertain whether the loss be total or partial, we must look to the final result.† If that be done here, it will be seen not only ' that the goods never arrived, but that an actual loss on the sales has been sustained. This is established by the ae-eount which was exhibited. The only question then will be, from what period ought interest to be calc.u-dated ?. As abandoiiment was needless, the right to com■pensation arose on the expiration of 30 days after demand, the verdict is therefore correct, and ought to stand. Pendleton and Harison contra. By the decision of Ab^..bott v. Sebor, this court settled that an insurance on profits, was an interest policy. Such it must be, because' in .England, insurances of this sort are permitted.' Le Cras y. Hughes, Marsh. 84, Grant v. Parkinson, Ibid 111. If 3.0, an abandonment was necessary, for whenever the property remains in specie, it exists, unless in the hands of a captor, in the nature of salvage, and must therefore, as a .valuable interest, be relinquished to the -Underwriter. Without denying the doctrine of Earle v. Shaft), we say it .does not apply,, because the assured here, has meddled >vith and assumed a disposition of the property. ■ This case then is exactly within the principle of Mitchell v. Edie, 1 D. ¡X E. 60S. and Allwoodv. Henkle, Park, 112. The plaintiff has traded on the subject of insurance, After remitting, renewing, and receiving damages on seine of the bills, he comes on the underwriter for a-total loss, because a. part of them have proved bad. We contend this policy is on the incident, and that the plaintiff takes to it, by .choosing to retain the principal, The court cannot tolerate the idea, that after an insurance on profitsUo'wó-minc, the.assured shall, at the port of necessity; receive them, and after, managing them in his own way, demand a total loss, because they ultimately turn out deficient, if the determination is to be regulated by -the rules which govern wager policies^ there cannot be a recovery, as the vessel did arrive.' It is no answer to say, the policy was on profits. In Kulen, Kemp v. Vigne, 1 D. SC E. 304, the assurance was on the cargo, but as the ship did arrive, the court held the underwriter would, allowing it a-wager policy, have.been exonerated.. ■ ■■ - - . *■ ■ ■■</p> <p>In ;Eentp v. Vigne, the insurance* was expressly,on. the arrival- ofthe’ship; not bf the goods.' On- the .point of abandonment, -it is sufficient to observe-, • that when a. démand was made for a; total loss; the insurer' had it in his power .to make- it equivalent to abandoning1,'! by paying his subscription. ¡-, It is a misftafcedo Say,’'tbe: profits have. been, diminished by- trading on 'themi'--' -The: actual proceeds-of-the cargo sold, that which was given for it, has been realized, and credited to the underwriter. Upon this principle even, there is a total loss. Therefore, whether the malting a profit, or the arrival of the goods is to be the criterion, there must, be-a recovery, for neither one, nor the other has happened.</p>

DEBT on an arbitation bond entered into with the plaintiff, by which he, as guardian of Eber Weed, submitted to three indifferent persons, all things relating to a suit brought by him, in the same capacity, against the defendant for assaulting and falsely imprisoning said Eber Weed.

<p>On an original suit ™ plaintiff may UmeTunlLr7 nonprossed.</p>

THE plaintiffs had, under the act authorising proceedings against absent debtors, procured, on the usual oath, an-attachment against the property of the defendants, who resided in Massachusetts.

ON certiorari to a justice’s court, in a suit under the 19th section* of the “ act to regulate highways,” by which it is ordained, that the penalty of ⅞>5, imposedfor obstructing roads, shall be recovered “ in the name of any person who shall “ make complaint thereof, before any justice of the peace of “ the county where the offence shall happen, upon the oath “ of one or more credible witnesses, and levied by distress “ and sale” &c. that by the return, it appeared, a…

TRESPASS for cutting down and carrying away a quantity of saw-logs, after notice of title, and being forbidden. The defendants justified under a licence from one Abraham Bull, who at the time of the trespass, was in possession, by virtue of a writ of restitution, awarded upon an indictment against the now plaintiff, for a forcible entry and detainer, which was afterwards quashed for irregularity, and re-restitution directed.

ON demurrer. The second count of the declaration was on a note or memorandum in writing, by which the defendant acknowledged to have received of Nobles, forty-two dollars, which he promised, on demand, to pay and refund, “ provided the said Nobles should make it appear “ (meaning thereby that the said Nobles should give rea- “ sonable evidence) that he the said Nobles was not able to “ hold a certain lot of land (meaning thereby, if the title “ so conveyed should prove…

IN assumpsit for money had and received, the judge charged the jury to allow interest, which was accordingly done. The question, now without argument submitted, Was, whether, under a count for money had and received, . # a plaintiff could recover interest?

<p>If a defendant be liberated from confinement, for want of being' charged in execution, trespass will not lie &- gainst the plaintiff & his attorney, for imprisoning him a second time, on a ca: sa. issued on the old judgment in the discharged,*?: only ^voidable</p>

THIS case differed from the antecedent in one point only ; which was, that the plaintiff, instead of being discharged from execution by the defendants, duly obtained, after a three month’s confinement, his liberation under the 4th and 5th sections of the “ act for the relief of debtors “ with respect to the imprisonment of their persons.”— The judge, on this account, directed a nonsuit. contended, that the plaintiff, after treating the execution as good and valid, was…

<p>IN error on certiorari, in this, and two other causes, the following points were relied on. 1st. That the action being trover, and the defendant having justified by pleading a right of entry, under a lease for rent-arrear, in consequence of which, he entered, distrained, and sold, (as it was lawful for him to do,) the justice ruled the plea to be equivalent to the general issue, and proceeded accordingly. 2d. That the court was held on the 12th of the month, and adjourned to th'e 22d, but the venire was tested on the 21st, when the court was not sitting, or, in other words, out of term. 3d. That the venire was directed to any constable of the county. 4th. That the cause of action appeared on the record to have arisen in the town of Hills-dale, and the trial was in that of Livingston. 5th. That in the oath, stated to have been administered to the constable, the words “ until they have agreed,” were omitted. 6th. That in one cause, no issue was joined; for, on pleading the justification, oyer of the lease being demanded, and not given, the justice went on and tried the cause, Aough the defendant abandoned it.</p> <p>To warrant a venire, issue must be joined, for till then, there can be nothing to try. 1 his observation applies to the first and last objections, in neither of which, does the return shew a joinder. Even if we allow the special plea to be equivalent to the general issue, yet, it would not justify the proceedings adopted. On such occasions, a venire is not awarded, but the party is driven to his demurrer, on which, alone, the goodness of the plea can be determined. ' It is not, however, conceded, that the judgment on the plea was correct, notwithstanding the dictum, that in trover, only the general issue of not guilty, or a release, can be pleaded. Because the special matter may be given in evidence under the general issue, it does not follow, that such matter may no; be specially pleaded. For instance, payment, or infancy may be pleaded; yet, each may be given, in evi~ dence under the general issue. In trover, the true rule is, yOU must either traverse or deny the conversion, or confess and avoid it. Esp. Di. 595. A variety of cases may be adduced, in which this principle has governed the matter pleaded. In Thomsbn v. Clerk, Cro. Eliz. 504, in trover for a conversion of goods, in Nottingham, the defendant confessed and avoided, under a judgment in the Queen's Bench^and afi. fa. thereon, to the sheriff of York, who, at Wakefield, in the said county, by virtue thereof, took the goods in execution, and delivered them to him in satisfaction of the judgment. On a general demurrer, the plea was holden ill, not on account of its amounting to the general issue, but because it did not state where the Queen’s Bench was held, or traverse the taking in Nottingham ; and because the sheriff could not, on a fi.ja. deliver the goods, but must sell. It is, therefore, to be presumed, that had the plea amounted to a bar, it would have been otherwise. So in Gomersale v. Wayts, Cro. Jac. 255. a plea, thattke goods were taken for distresses under a dis-tringas, on a plaint in a court baron and sold, was overruled, merely, because, on such a writ, the goods could not be sold. The same principle is found in Brownlow v. Lambert, Cro. Eliz. 716. From these authorities, it is evident, that matter which confesses and avoids the conversion, may be pleaded, if it be set forth in due form of law. On the second point, we insist, that the venire was prematurely awarded. Till the opening of the court, and whilst out of term, as it may be called, the justice had no authority to directone. The adjournmentwas,unto the day after the venire issued, before which time, the magistrate had no authority orderit. In Day v. Wilber * 1 am aware ithas beenruled, that when a party pleads, he waives all objections to the ve-nire.† But the decision there applies to cases where the exception is taken by the party, at whose request the writ is sued out. The inference, therefore, is, that he who does not pray the writ, may object. The direction also is to an officer who does not exist. There is no such person as a constable of the county. The law knows only constables ef towns ; and though a direction to a wrong officer may be cured, one to a non-existing officer is fatal» 1 his cannot be called a matter of form, and, therefore, not within the act of 1801,t) which, indeed, is no more than an extension of the statute oí jeofails. The fourth error relied on, speaks for itself; and the fifth is expressly within the last resolution, in Day v. Wilber, which settles, that though a justice is not hound to set forth the oath administered to a constable j yet, if lie undertake it, and mis-recite, the judgment must be reversed. On the sixth exception, something has already been said; but the justice was certainly wrong in proceeding to trial, without an issue joined, merely, because oyer was refused, when, as the demise was not pleaded with a proferta it does not appear to have been by deed; and if by parol it was not demr.ndable.</p> <p>argued, that all defects in the venire and venue, were cured by pleading in chief, according to the case of Day v. Wilber; and, as the decision of the justice upon the special plea, was clear law, it must be intended the jury tried the facts set forth, in the same manner as if they had been adduced in evidence under the general issue ; their verdict is, therefore, conclusive against the justification set up. The oath of the constable, they urged, might be rejected altogether, as mere surplusage.</p> <p>the intendment of trial could not be made, as it was against the record, which stated, that the defendant abandoned the cause.</p>

ASSUMPSIT by the indorsees against the makers of a note, for ^‘330, dated March the 31st, 1796, payable on the 31st March, 1799, with interest from thence, to Roszoell Lombard, or order, with an indorsement' to the plaintiffs in these words : “ Pay the within note to Erastus Baker and “ Sylvester Rowlson value received, March 30th, 1799, Ros- “ well Lombard.’’’’ On the trial, the hand-writings of the defendants and payee being admitted, the plain tiffs there rested their…

ASSUMPSIT, on a special agreement, in consideration of a horse, and divers goods and merchandizes, to deliver, for value received, forty dollars worth of merchantable boards. At the trial, the plaintiff adduced the subscribing witness to the note, who testified that the horse was the only consideration. Upon this, the defendant moved for-a nonsuit, insisting that the plaintiff was bound to prove all the several considerations, as laid.

EJECTMENT, for lands in the town of Catskill, cla m- . ed by the plaintiff under a patent to Helmer Jansen, dated the 15th of January, 1703 — ⅛, which in 1733 escheated to the crown, and were, on the 22d of August, 1738, re-granted to John Lindsey.

<p>1⅝ Hudson ⅛ a public rive:-, above tide water, «f temOir. An action will not lie for diverting the _ water of a river from its xw sual course, by erecting a dam for mills above the mills of &- noilier, if sufficient water be left to work the lower mills though,in cob-seqncuce of such erection, it be necessary to run the mill-dam of the lower miilsfur-ther into the stream, and the difficulty of getting logs to the lower mills he increased so much us to require one hand more for every 25 logs.</p> <p>Where persons have an equal right to erectmill-dams on a river, the rubbish which comes from a newly erected upper dam, to an old lower dam, though it nknceTothe6' lower of about 250 dollars a year, will, if a juryhavefound M favor oí the defendant, and tíiePfíoatii<gllat rubbish of the river be lessen-edbythe erection of the upper dam, be damnum ab-NoVewtrial will be allowed on account of newly discov-ifTtappeSthat nt might have been procured on the first feial.</p>

■ HOPKINS, in consequence of the death of a witness xo be examined on a commission sent to England, and sued out early in the last spring, moved, on behalf of the defendant, to amend by inserting the name of a new witness, who could prove the fact the testimony of the deceased would have gone to establish, or to be at liberty to issue a new commission.

IN debt on recognizance of bail, the defendants pleaded 1st. 7ml tiel record. 2d. that the ca. sa. against the principal was not duly issued. The plaintiffs replied, taking issue on both pleas. Under these circumstances, the plaintiffs gave notice of bringing on the trial by record, and the defendants of setting aside the whole proceedings, for irregularity in the ca. sa.

THE court having on a former day*' allowed the plaintiffs to shew that they had such a demand against the defendants as would warrant the attachment. Hoffman now read an affidavit by which it appeared, that their claim was founded on the contract contained in a bill of lading, for the delivery of goods shipped on board the defendants’ vessel.

THIS was an. action to recover the amount, paid for the services of a negro man named Bartley, and brought up On the following case. By an act of the legislature passed in If83, proprietors introducing slaves into this state, after the 1st day of June, 1785, were prohibited from selling them as slaves, and such persons if “ sold contrary to the true intent and meaning of “ the act,” were declared to be free.

CASE for words spoken of the plaintiff in his character of attorney, and a member of the legislature.