Volume 3 — Cowen's New York Reports

Assumpsit. The defendant, Crowell, pleaded the general .. , . - , , , issue, and gave notice, with that plea, that he should, on the trial, give in evidence his discharge under the act for abol- , ' 0 ° ishing imprisonment for debt in certain cases; and, at the last Circuit Court in the city of Mew-York, the cause coming on to be tried, the discharge was accordingly offered in evidence ; but the Circuit Judge, supposing this to be the subject of a special application to this…

<p>The plaintiff having made default in trying this cause, pursuant to notice for that purpose, at the first Circuit after issue joined, the plaintiff’s attorney told the defendant’s attorney that if he would make out his bill of costs he would pay it, and stipulateto try at the next Circuit. This he did not do, but now moved for judgment as in case of nonsuit.</p>

<p>Rule made dant^deposit deeds, which he relied on in defence of an ejectment brought against him, in the clerk’s office of M. to the end that the plaintiff hi%ht, with witnesses, inspect the same.</p> <p>This rule made on affidavit of the lessor of the plaintiff that he expected thus to he enabled to prove the deeds forgeries.</p>

<p>The'law win fractionTof1^, fay> as between the psr«« ties, in order to ^eth^r8 the judgment recbefor^execut tI^su®d’uu' actual1 injustice'</p>

<p>A return to a certiorari will he set aside, if it he attorneyS. *7 for the plaintiff in</p>

<p>The jury mayny nme before |*ie at the instance ^hetheTit be a sealed or ora vordiGt‘</p>

The defendant was lessor of the plaintiff in ejectment, entered into the consent rule, and the verdict and judgment were against James Jackson, the nominal plaintiff. Hereupon the defendant’s attorney issued a ca. sa. against James Jackson, for the costs, which was shewn to Honsenfratts, the lessor, who was shewn, at the same time, the original consent rule, and served with a copy thereof by one who had a written authority from the defendant’s attorney to receive the costs.

A cause between Fitzpatrick, plaintiff, and Smith, defendani, had been commenced and carried to issue in the Putnam Common Pleas ; and then the defendant removed it by hahcas corpus into this Court, butputting in no bail, & procedendo issued and was filed in the Common Pleas, in February term last, and on the last day of that term the plaintiff’s attorney moved to bring the cause on to trial.

A trial being had and a verdict rendered for the defendant, in June last, at the Ontario Circuit, (he plaintiff’s attorney made and served a case for the purposes of a new hi-ah tp which amendments had been proposed and notice of se*ding the case given ; but, before settled, the Circuit Judge granted a general order, that “ all proceedings on the part of the defendant in this cause, upon the verdict rendered in the same, be stayed until the further order of this Court and…

Ü’hir cause had befen referred, and the report being iti fa-tour of the plaintiff, the taxing officfer had allowed in the taxation of costs $40, as a counsel fefe for 5 days attendance of counsel before the referees;

Judgment being against the defendant, who had not puf in special bail, the plaintiff issued a fi- fa- returnable at the present term, with which the Sheriff called on the defendant, xvho said he had no personal property to satisfy it, but he had real estate, which he pointed out to the Sheriff. This real estate being heavily encumbered by previous judgments, &c. the plaintiff took back the fi- fa. and gave the Sheriff a ca. sa. which he executed.

Debt, in the Court below, by Potter, assignee of a gaol bond, against Updcgroff and two others, the obligors. The declaration set forth a ca. sa. in favour of Potter against Up* degroff, the arrest of Updcgroff, the execution of the bond, with the condition, which was, that Updcgroff should remain a true and faithful prisoner, and should not, at any time, or in any wise, escape or go without the limits, $■£.

On the 21s£ November, 1818, a judgment Was docketed in this Court, in favour of Reeve against Smith, for $192,09, on which execution issued, tested Oct. 9th of the same year, returnable at the ensuing January term, directed to the Sheriff of Steuben ; who, on the 19ZÁ of January, 1819, sold the farm on which Smith then resided, to Hurd, and executed a deed for the same to him.

<p>Seven judgments had been obtained in the Onondaga Common Pleas, against Lasher alone, to the amount of $2725,19, a fi. fa. on each of which was delivered to the-Sheriff of Onondaga on the 24th September, 1821. The following judgments were obtained in this Court, viz. one in favour of Chichester & Van Wyck, for $959,28, against Lasher & Cande, partners, on which a. fi.fa. was delivered to the Sheriff of Onondaga, Sept, nth, 1821—a judgment in favour of Tredwell et al. against Cande impleaded with Lasher, for $784,09—and another judgment in favour of Humphrey against Cande impleaded with Lasher, for $942.53. The two last judgments were also against the defendants as partners, and the fi.fa. in each was delivered to the Sheriff of Onondaga, Oct. nth, 1821. On these executions the Sheriff levied on partnership property, and on his application to this Court for direction, in January term, 1822, he was ordered to sell the goods and bring the money into Court, which he did, to the amount of $1764,50. At May term, 1822, this Court directed that the execution in favour of Chichester- & Van Wyck, be first satisfied, secondly the other two judgments in this Court, which had .been assigned to Russ, and that the Common Pleas executions be postponed to these. The Sheriff accordingly paid to Chichester & Van Wyclc $986,34, and $776,78 to Russ. Russ, on the last application to the Supreme Court, sought to obtain preference over C. dr V. on the ground that their execution was returnable at the wrong place, bad issued contrary to stipulation, and was sealed with an old seal, before used ; but he failed in all these grounds. The fi.fa. was amended as to the place of return, and the stipulation and seal, being before used, were denied.</p> <p>In November last, Russ discovered, for the first time, that no record of any judgment in favour of C: fy V. had ever been filed. Application was accordingly made by Russ, at the last February term, to vacate the former proceedings, •set aside the execution of C. $■. V. as having issued without any judgment to support it, and that the moneys paid to them be paid over to Russ, on his judgments. On account of a mistake in the title of the papers, the motion was then-denied, but renewed again at the last May term, whence it, ivas postponed to the present term, for the purpose of producing additional affidavits.</p> <p>The attorney of C. V. swore, that he had enclosed a - record in their cause, duly signed, with the warrant of altorney to confess judgment, and directed them, by- mail, to the Clerk’s office of this Court, at Utica, 'm season for their arrival, in the ordinary course of the mail, so as to warrant the fi.fa. which he issued$ and he supposed that they had been regularly filed till January, 1823, when they were returned to him from the General Post-Office, as a dead letter ; which fact he concealed till the present motion was noticed.</p> <p>A motion was also made and continued as above, on the part of C. $• V., to amend, by filing the warrant of attorney and record nunc pro tunc.</p>

Ok the 6 th day of March, f824, the insolvent presented-his petition to the Hon. J. T. Irving, First Judge of the Court of 1 . Commoa Pleas of the city of NewYor/c, for a discharge under tbe “ act to abolish imprisonment for debt in certain cases,” passed April 1th, 1819. His honour made the usual order for the creditors to appear on the 24th of May following, and directed by this order that the same should be published for v 1 10 weeks.

Debt oh bond for the performance of covenants. Plea, non est factum, Upon this plea the plaintiff proceeded to trial, and took a verdict for the plaintiff, without having yet assigned breaches, at the Monroe Circuit, in March last.

<p>The arbitration bonds were dated 18^3“and2the award was daím^indrecited bonds dated the Hist of August, last past; held, that II a correct recital were should^beconstrued^insupward,°to refer th0?“^’1'e' $asu instead of t^llugustiast past.</p> <p>award was that if should, said farm to should pay Hcertain ttat the’deif?ery of the farm was a considera*ion for the money, and the award being uncertain, in not describing the farm by reference or otherwise, the award of the money was also void*.</p> <p>If that part of the aw.u d, which is void, is so connected with the rest as to affect the justice of the case, the award is void for the whole,</p>

Ejectment. The cause was tried at the last Ontario Circuit, before his Honor, E. T. Throop, C. Judge, and a verdict found for the plaintiff.

Ejectment for premises in Rotterdam, county of Schenectady, tried before Duer, Circuit Judge, at the Sckeneclady Circuit, October, 1823. On the trial, it was shown that the declaration was- served on the defendant, who was in possession, in the vacation after January term, 1823, and that it was returnable at the May term there ter May term. May term thereafter.

Assumpsit, tried at the Onondaga Circuit on the 11 th daw „ . ° - ot July, 1823, before 1 HRoop, C. J udge-. lh® trial, the counsel for the plaintiff introduced two notes, or memorandums in writing (¡he execution of which was admitted by defendant’s counsel,) in the following words ; (First note) “ In the momh oí June next, we, jointly and sev* .

Assu.kTsit brought for a refusal by the defendant to receive and pay for 300 barrels of flour sold to him by the pUintiff The cause was heard before three referees, September Mth, 1823, who reported for the plaintiff $512,29 , damages. j(, was proved before the referees that oné Blood, a bro-1 ker,on the 2oth October, 1821, sold to the defendant, at Nt w-300 barrels of Petersburgh flour, for the account of the plaintiff, at $8 per barrel, of which he made a memorandum.

Covenant on the assignment of a bond executed by Whig ton Thompson, to the defendants, and by the latter' ass>gned to the plaintiffs, with a covenant that $ 1308 18' principal and interest, besides costs, were due at the dme* 7 °f the assignment,. which- was dated the Jd day of Nuvem^er' The bond assigned was daied March 31, 1803.

<p>jn ejectment, an objection cannot be made at the plaintiff failed at the trial to make out a title, unless such objection was previously made at the trial. One claiming under a deed from a judgment debtor has not such an adverse possession as will avoid a conveyance executed by a purchaser under an execution upon the judgment.</p> <p>A deputy sheriff may complete an execution by sale and conveyance, after the sheriff goes out of office, provided the execution was levied before.</p> <p>A deputy sheriff who is plaintiff in, or assignee of a judgment, may purchase under an execution thereon directed to his principal.</p> <p>In construing a statute, wherever the intention of the legislature can be di-covered, it phoulil be followed with reason and discretion, though such construction seem contrary j:o the letter of the statute.</p> <p>Cases illustrating this proposition referred to by the plaintiff’s counsel;</p>

<p>Assumpsit. The first count of the declaration was upon ri0licv of insurance on the ship William, dated August 21sf, 1819, at and from Jfew-York to Cadiz, averring that the ship sailed on the voyage insured, and alleging her physical total loss, and that the ship became of no use or value, by perils of the sea. The second count set. forth another policy upon the same vessel and voyage, in the same terms as the policy described in the first count, and averred the loss to be a technical total one, as amounting to more than a moiety of the ship. The third count was the same as the second, superadding a general average loss by a jettison. The fourth was the usual money counts, consolidated in one. The policy, as set forth in each count, contained the usual rotten clause, “ that if the above vessel, upon a regular survey, should be thereby declared unseaworthy, by reason of her being unsound, or rotten, or incapable of prosecuting her voyage on account of her being unsound or rotten, then the assurers should not be bound to pay their subscription on that' policy.” The policy in the second and third counts was set forth thus : “ For the same voyage, and upon the same subject matter of insurance, and upon the same terms and stipulations, and containing therein to the same effect as in the said policy of insurance in the said first count of this declaration is above mentioned,” &c,</p> <p>Pleas : To the 1st, 2d and 4th counts, the general issue—«• to the 1st and 2d counts, a regular survey on the vessel, upon and immediately after her arrival at Cadiz, to wit, on the 15th October, 1819, on which she was declared unseaworthy, by reason of her being rotten :(a) to the 1st count, alone, a regular survey on the vessel, upon and immediately after her arrival at Cadiz, to wit, on the 15th October, 1819, by which she was found to be in a very bad and rotten condition, and that, to make her seaworthy would amount to $5000 or upwards, according to the report of Thomas Bill, one of the surveyors, a ship-carpenter of that port, and in which the sur-? veyors coincided, and that it was their firm "opinion it would be best for all parties concerned in the ship, that she should be condemned : to the 2d count, alone, the same, omitting the report of the ship-carpenter : to the 3d count non-assumpsit, as to the general average, and as to the residue a survey in the same form as the last mentioned plea to the 2d count.</p> <p>Replication, to the 2d plea, which covered the 1st and 2d counts, that the ship arrived at Cadiz, September Hbth, 1819; and after the expiration of at least 15 days, to wit, on the 11 th of October, 1819, a survey on the vessel, by which it was found that the stern frame had apparently worked, the wooding ends unuer the counter open, and the ship making a great deal of water; that after the expiration of at least 19 days, and not sooner, to wit, on the 15'/A of October, 1819, a second survey, supplemental to the first, to ascertain the expense of the repairs reported by the first survey, by which survey it was found ás stated in the third plea, with an averment that the second survey is the same as the one mentioned in the second plea; that this survey was not ordered by a Court of Admiralty, or other competent jurisdiction; that the surveyors were not sworn according to maratime law and usage ; that it was not.a regular survey within the policy ; and concluded with a formal traverse, that this survey, or any other had upon the ship at Cadiz, or elsewhere, found the vessel unseaworthy by reason of her being rotten in manner and form, &c. ; to the 3d plea the same, omitting the traverse; to the 4th plea the same, except concluding with a traverse that the survey mentioned in the 4th plea was of any other tenor and effect than in the replication set out; to the residue of the 5th plea, the same as to the 4th.</p> <p>Special demurrer to each of the replications, assigning the following causes:</p> <p>I. To the replication to the 2d plea :</p> <p>1. The traverse seeks to put in issue matters not in thti plea.</p> <p>2. It is double and multifarious.</p> <p>3. No apt and proper issue can be taken upon the traverse.</p> <p>4. The traverse tenders an issue upon matters contain-1 ed in the inducement.</p> <p>5. In other respects double, uncertain, &c.</p> <p>II. To the replication to the 3d plea :</p> <p>1. It does not traverse or avoid the matters contained in the plea, except by inference and legal construction»</p> <p>2. It is evasive, uncertain, not issuable, and argumentative, in alleging that the surveys were made, one at least 15, and the other at least 19 days after the arrival of the ship.</p> <p>3. It is double and multifarious, seeking to put in issue</p> <p>distinct and independent facts, thus: 1. That the second survey was not had by the order of a Court of Admiralty, or other competent authority. 2. Surveyors not sworn. 3. Not a regular survey, within the meaning of the policy. 4. That there was another survey of October 11th■ 5. That the one</p> <p>of the 15th was supplemental to the other.</p> <p>4. In other respects double, uncertain, &c.</p> <p>III. To thé replication to the 4th plea :</p> <p>1. The traverse seeks to put in issue the matters contained in the inducement.</p> <p>2. It contains only matter of legal inference and construction, arising out of the inducement.</p> <p>3. No apt or proper issue can be taken on it.</p> <p>4. It is in other respects uncertain, &c.</p> <p>IV. To the replication to the residue of the fifth plea, the</p> <p>same causes as to the replication to the fourth plea.</p> <p>Joinder in demurrer to each separately;</p> <p>The cause was argued at May term, 1823, by (the late) Mr. J. Wells, for the defendants, in support of the demurrers, and G. Griffin 8/ T. A. Emmet, for the plaintiffs.</p>

<p>The judgment of a court of concurrent juradiction, dipoinf ls°con elusive besrnneQ parties) upon the same directlyC°mUin question m another suit; And this, pleaded) ^ or given in evidence under the general issue.</p> <p>It is conclusive, whether it appear upon the face of the record in the former suit, that the same matter was tried and passed upon, or not.</p> <p>If it was, in fact, so tried, without this fact appearing of record, the proper course is to give the record in evidence, and then prove, by parol, that the matter did arise, and was tried upon the pleadings in the record.</p> <p>Where B sued G upon a promissory nqte, in the marine court, and G pleaded the general issue, with notice that the note was given upon the fraudulent sale of a vessel by B to G, which was the question upon the trial, and the verdict wax for the defendant ; and afterwards B sued G in the common pleas, upon another note given upon the same purchase; held, that upon the trial of the second cause, the record and proceedings in the first were conclusive evidence of the fraud, and were a conclusive bar to the second action ; that the proper course was to give the record of the marine court in evidence, and then shew by parol evidence, (c. g. by the justice who tried the first cause) that the same fluestion had been tried before him.</p> <p>Whether, in assumpsit, a former trial for the same cause may be given in evidence under t|>e general issue i Quere. ' '</p>

Error from the Court of Common Pleas, of the county of Schenectady.

<p>, Error from the Court of Common Pleas of the county of Ulster. The action in the Court below Was assumpsit by Deyo and wife against Kelsey, for a legacy bequeathed to them by the will of Nathaniel Kelsey, deceased, and alleged in the declaration to have been charged on his real éstate devised to the defendant below. The declaration averred that the defendant entered into possession of the premises devised to him by the will, thereby became liable to pay, and, in consideration thereof, promiesd to pay the plaintiffs, the legacy so charged. Plea, non-assumpsit.</p> <p>On the trial, the will of Nathaniel Kelsey, dated April Oth, 1803, duly executed to pass real estate, was given in evidence by the plaintiff, containing, among others, the following devises and bequests : 1 st, That all his debts be paid out of his personal estate ; 2d, He gave to his wife, Lucretia Kelsey, all his personal estate, after paying his debts, except what he thereinafter granted to his daughter Sarah Kelsey. He also gave to his wife the use, profit and benefit of his homestead farm; also the right and privilege of cutting timber for fire wood and other uses as she might want; also pasture for cattle and horses, as usual, in and on his farm adjoining the mountain ; the above rights and privileges bequeathed to his wife to continue undisturbed during the term of her natural life ; and at her decease, what remained of his personal property, to be equally divided between all his children or their heirs. He then bequeathed to his son Nathaniel Kelsey.(the defendant* below) all his real estate to him and his heirs forever, excepting such rights and privileges as had theretofore or should thereafter be granted by him respecting the premises. The will then proceeded as follows : “ And I do hereby order and direct that my son Nathaniel Kelsey, (the defendant below) or his heirs, pay the following legacies, that is to say : to my daughter Abigail Woolley, the sum of £ 100 ; to my daughter Lucretia Verhooy £100; to my daughter Julia Deyo (who, and her husband, were plaintiffs below) £i00 ; the one half of each of the above legacies to be paid within two years after my decease ; and the other half to b& paid in two years after the decease of my wife, without interest.” He then gave to his daughter Sarah Kelsey, the use of liis bed room with a fire place up stairs : and a proportionable right in the kitchen, cellar and chamber in his dwelling house ; the privilege of fire wood and apples ; hay and pasture for two cows ; and the use of the barn and other outhouses ; to continue to her so long as she remained unmarried, but no longer: that if there should be any money to be paid at the decease of his (the testator’s) father and Hannah his wife, to the heirs of his father, as specified in an agreement between him and his father, it be paid by his son Nathaniel Kelsey (the defendant below) as soon after his father's decease as his (N. IPs.) circumstances would admit, to be paid out of the real estate, without interest. The will then appointed Kelsey (the defendant below,) Woolsey, the testator’s son-in law, executors, and the testator’s wife executrix.</p> <p>It was admitted by the defendant below that he had entered upon the lands and premises described in the will in pursuance of the devise to him 5 and occupied and possessed them from the year 1803, until the time of the trial, April, 1821 ; and that during that period, and before the commencement of the suit, he had, at different times, made payments to the plaintiff on the legacy to them, reducing the same to $191,28. Upon this, the plaintiffs below rested their cause.</p> <p>The defendant below moved for a nonsuit: 1. because the will in evidence did not support the plaintiffs’ action ; 2. because the legacy bequeathed to DeycPs wife was payable out of the personal estate of Nathaniel Kelsey, and was not a charge upon the real estate. The Court below overruled the motion ; and charged the jury to find for the plain, tiffs the above sum of $191,98, which they found according. ]y. The defendant below excepted upon the above two points, and the questions came here upon a bill of exceptions.</p>

Assumpsit- Declaration on a negotiable promissory note, made by the defendant and payable to the plaintiff, 1 •dated November 3d, 1814 for $130.

<p>A fcond ev covenant by the creditor to aave harmless</p> <p>against the debt, operates theVebt.aSe °f</p> <p>A and B ^af-Sool and then B bound in the pOOtMo- inf demnify A apartnership1*16 debts ‘ due the $2000¡ debt due to C, tierng one of them; and C •ttas* bond^to the amount of wayPoTÍndeinnifying A a-debts due from the firm of A and B, and then brought his action against A upon the note to Ci Held, that he should recover ; for he shall not be hoiden to pay beyond the penalty of his</p> <p>bond ; more ¿especially as he was a mere surety; and the bond shall not operate as a release of a debt Which he could not be called upon to pay.</p> <p>A surety is not liable beyond the penalty of his bond.</p> <p>The rule seems to be the same as to the prinpipal.</p> <p>The English apd American cases upon these two heads considered.</p>

<p>ry^“ vit of a debt Éolvimt^efore a commissioaobtain his dis^aranieX)u? der the insolknowledgment t3-k© tlici aebt 0ut of the-1’m"</p> <p>An action oa mTar/'lth, 1812, just before the repeal of the in-olact,-<?f was repealed fgi^hbarred by a discharge solvent act of April 12,1813.</p>

On error from the Court of Common Pleas of the county-of Livingston.

On error from the Otsego Common Pleas. The action iff Court below was trespass by Adkins atiainstjBrrzoer& Har1 J ° vey, for taking, and carrying away, and converting the goods an(* chattels of Adkins. Plea, not guilty.

<p>The contract In a valued policy is to pay the assured the whole valuation, if the subject of the policy he lost; and the valuation in the policy is conclusive as to the amount of recovery, if the subject be lost by the pe'ils insured against, unless there he fraud or imposition infixing the value. Where the insurance was of goods, valued at $14,000, on hoard a ship and the returns of those goods on a voyage out and home; in^the6 course of the voyage round were delivered to X. upon his ndvance, of §7,000, and his receipt, promising to answer drafts of the assured to §3,000 the goods to he sold by X. for his re-imbursement and the proceeds remitted to the assured ; and the $7,000 were vested in a return cargo, together with $1621, for ■ which he drew on X. making in the whole an investment to $8469,85 ; 'and X. paid the draft as he had agreed ; and the return cargo was lost by the perils insured against; and the outward cargo, on actual sale, did not bring enough to re-imburse X. by §4680,26, for which he drew on the assured ; held, that the assured was entitled to recover, as for a-total loss, the §14,000, and interest.</p> <p>But it would be otherwise, if part only of the value of the goods had been invested in the return cargo.</p>

Ejectment, for a small lot or alley, in the village of Salem, Washington county, tried before (the late) Mr. Justice Yates, at the Washington Circuit, June 10th, 1822. I'he declaration was entitled of Thursday, May 4th, in 'May term, 1820, and the ouster laid on the 3d May, 1820. On the trial, James Rowan testified, that the alley was laid but by John Williams, the proprietor of that and the adjoining lands, &s early as 1796.

Motion in arrest ofjudgmeut, for the insufficiency of the declaration This contained 4 counts, in slander, upon which a general verdict had been found for the plaintiff; and the motion was founded upon the insufficiency of the last count only, tlm goodness of the others being conceded by the counsel for the defendant.

Ejectment, for part of lot No. 4, in the old township Brutus, in Cayuga county ; tried at the Cayaga Cii before (the late) Mr. Justice Platt, May 27th, 1822. pf Brutus, in Cayuga county ; tried at the Cayaga Circuit, After the defendant had confessed lease, entry and ouster, al the trial, the plaintiff produced a deed from Daniel Atery and William Satlerlee, commissioners for loaning money of the county of Cayuga, to Allen Worden, the lessor of the plaintiff dated September…

Error from the Common Pleas of Onondaga county. Curtis sued Tompkins before a Justice of that county arid recov ered judgment.

<p>Error from the Court of Common Pleas of the county of Washington: Williams, the plaintiff below, declared as enjorsee against Matthews; the defendant below, as endorser of a promissory note, made by Abner $r Hugh Harsha, dated -April 9lh, 181 S', for $73 with interest from' the date, payable (;0 ^he defendant, or order, on or before the 1 si November (then) next. The first count of the declaration set forth á jeman(j 0f the makers, and notice thereof, and of non-pay- ^ 7 ; 7 r J ment, in the ustíal form, upon the 4th November¡ 1315. Thá 2d count averred that before the note fell due, H. Harsha absconded, &c. and then set forth' the demand upon A. Harsha, in the usual form, on thé 4th, and notice on the 6th No^emSer, 1815. Plea, non-assumpsit. Onthe trial, the plain- ’ ' 1 ' r tiff proved the execution of the note by the makers, and the endorsement of the defendant’s name on the note in blanks He then offered to prove that A. Harsha, one of the makers, was an infant at the date of the note, but this being objected to, the Court overruled the evidence. He then called A. Harsha, one of the makers of the note, who was sworn on his voir dire. He said that he was interested, and objected to testifying. The defendant also objected to his admissibility on the ground of interest. The plaintiff then offe ed to confine the inquiry to the fact, that a demand of payment was made ; but the deferidant persisted in his objection, and the Court sustained it,- and would not permit the witness to be sworn. The plaintiff then called the Attorney for the plaintiff, who was sworn on his voir dire, and said that he bought the note of the defendant before it fell due, and paid him $73 for it; and that, also before it fell due, he sold, and transferred it to a third person, who is not the plaintiff; that after it fell due, it came again into his hand, and he commenced a suit upon it, in the name of one Seth White, against the defendant; that the witness had the sole control of the note at the time the suit was commenced in the name of White, and that While had nothing to do with it. That suit was discontinued, and in September, 1817, the note became the property of the plaintiff, who had no interest in it before that time. The note was then sold to the plaintiff by the witness ; that the plaintiff is, and was then an Attorney both in the Common Pleas of Washington county and the Supreme Court. The witness was then sworn in chief; and the plaintiff offered to prove by him that the note was endorsed to him, the witness, before it fell due; that, on the 3d day of grace, payment was demanded of A. Harsha by him, H. Harsha, the other maker, having absconded before the note fell due; and that on the succeeding day, after demand had been made, he, the witness, gave notice to the defendant of the demand and non-payment; and that, before the commencement of this suit, the money was again demanded of the defendant, by the plaintiff’s direction. The wdtness then stated on his. examination in chief, that the relation given by him upon his voir dire was true; whereupon the defendant’s counsel objected to th§>evidence offered ; and the Court sustained the objection*arL<^ nonsuited the plaintiff. The plaintiff’s counsel ex-cepted to these several decisions of the Court below, and the cause came here upon a bill of exceptions.</p>

Replevin, for certain goods and chattels of the plaintiff, alleged in the declaration to have been tákenMay 8th, 1821, ® e ü 9 7 at house ¡No. 280, Broadway,city of Nezv-York, Avowry, substantially as follows : “ And the said defendant? defends the wrong, and injury, when, &c. and well avows, &c, because he says that at the time of making the demise unto the. said plaintiff, hereinafter next mentioned, and from thence, fee» and at the said time when, &c. he, the said…

[Vid. S. C. by the title of Rew v. Barker, 2 Cowen’s Rep. 508, where the record, was amended as to the time of sale.] Error from the Court of Common Pleas of the county of Onondaga. Barber sued Rew, in the Court below; and declared against him for money lent, and money had and received. Plea, the general issue.

<p>Letters of in-^merchant*™ his consignee expressly mentionmg a pnce below which goods^consign^aii not be sold, but merely commumcating a belief íent quaUty^f the goods will c“nain pi,i0g and expressing it as the sum. confidently ex-reaU¿dlonba sale, will not be construed as fixing the minimum price goods si^n be g°|dfor ^ sum by the without ueglibreach of instructions, nor render the factor liable in damages Though a hj3dls[®' structions, the adrice^oMhis fp°3en°UShand give notice of his dissent in a reasonable time $ otherwise, his assent to his factor’s acts will be presumed.</p>

<p>Bond, dated July 26ZA, condition W1to pay $3000, al’th foBows5?1 towt,Tn’1 the whole sum unfíf ’{''October, i8i5,onorbeOctober, 1816; mo^e thlreof with interest, unpaid, fropt the 1st next,°on or beottobe^mfthe residue expressed to be payable in instalments of §500 yearly in like manner; held, not usurious on the face of the condition, though, upon one construction, every instalment would draw interest from the 1st October, 1815. notwithstanding it might have been previously paid; and thus thd 2d instalment might draw 14 per cení, interest, the 3d, 21 per cent, and so in that progression to the last; but to avoid this consequence, held, that the words, “with interest on the whole sum unpaid,” should rather be deemed to refer to the interest as well as the principal, and to mean that §500 was payable on the lsi October, 1817, together with the interest that accrued on the balance of principal subsequent to the 1st October, 1815, find remained unpaid.</p> <p>Where a contract admits of two significations, that should be adopted which renders it operative, rather than that which renders it void.</p> <p>If a contract is susceptible of two constructions, one of which will bring it within, and the other without the statute of usury, the latter construction should be adopted.</p> <p>A contract reserving more than legal interest, on its face, is, prima facie, evidence of a corrupt agreement, which is the foundation of usury ; but this may be repelled by shewing that more than legal interest was reserved by mistake, e. g. a mistake of the scrivener in wording the bond, whether such mistake be of the fact or of the law.</p> <p>The court have the exclusive power of deciding whether a contract be usurious on its face.</p> <p>Á contract to pay interest, generally, means the legal standard of interest.</p>

In ejectment, the plaintiff recovered certain premises, situate in the city of Ntw-York, particularly described in a special verdict found by the jury. The declaration was in the usual general form, for 5 acres, &c. in a certain ward of the city.

The last cause having been removed by the defendant, on a wr*t °f error, to the Court of Errors, where the judgment ivas affirmed, and the record remitted, &c. a writ of inquiry issued, and an inquisition was taken under the 3d section of the act (1 R. L. 143,) concerning writs of error, and to prevent delays of execution, before the Under Sheriff of the city and county of New York, bn the 28Ih day of April, 1824.

Eliz.ors were appointed to execute the writ of possession jn this cause, on affidavit of the facts detailed in the last ¡cause, touching the interest of the Sheriff and Coroner of JVcar-Yorlc.

On certiorari to the general sessions of Madison county. Zilpha Ward, a pauper, was removed, by an order of two justices, from the town of Brookfield to the town of Bridge-water, in Madison county; and on appeal to the sessions. a, , , , , they amrmed the order.

<p>Error, from the C. P. of the county of Monroe. The cause was originally commenced by Rowley against Ball, before a J usticp of that county, who gave judgment against Ball, who appealed to the Common Pleas, where the cause was tried January 1C)th, 1822.</p> <p>Rowley declared against Ball upon a promissory note given by the latter to one William Huxley, payable to him or bearer, for $30, dated on or about the middle of June, 1819, and transferred to the plaintiff; and the declaration averred that the note had since been stolen, lost, or destroyed, or taken from the plaintiff without his consent or knowledge, ■ r ' “ Plea, the general issue.</p> <p>Upon the trial, J. D. Bailis testified, that he had seen a note in Rowley’s possession, purporting to have been given by Ball, for $30, dated sorpe time in June, 1819- The precise time when it was payable he could not tell; but recollected that it was payable to William Huxley or bearer, and when he saw the note, which was in April, 1821, it was due. It was admitted by Rowley’s counsel, that Ball could neither read nor write, but signed by his mark ; and that there was no subscribing witness to the note. Rowley, the appellee, swore, that he put the note into his pocket-book, and sometime after made diligent search for it, both in his pocket-book and desk, but could not' find it; that the note was either lost, stolen, or destroyed ; that he had reason to believe that the note had been taken from his pocket-book, and given to Ball; for the story of his having lost the note came to him from Ball’s, before he knew or suspected the loss. On being cross-examined, he stated that it was first suggested to him that the note was lost by Samuel Darling, his own brother-in-law. Hiram Huxley swore that he came to Ball’s in company with his brother, John Huxley, who told Ball that he had a note against him, which was given to Wm. Huxley. Ball replied, that whoever held the notes must pay for keeping Wm. Huxley’s wife; but requested John Huxley to take a gun of him, and apply it on the notes; and it was agreed between them, that J. Huxley should take the gun upon trial, and, if he liked it, he should allow $14 on the notes. If he did not like it, he was to return it. John Huxley testified, that he received of Wm. Huxley two ' notes against Ball, in the state of Ohio, one for $30, and one for $20, as they were read to him ; that he could néither read nor write ; that he went to Ball’s, as stated by H. Hupley, in company with him, and told Ball that he had notes against him, which were given to Wm. Huxley, one for $30 and one for $20, and be answered, that whoever held the notes must pay him for keeping Wm. Huxley’s wife. The witness requested Ball to pay him some money ; but Ball said he could not. He then requested him to let the witness have some leather ; but Ball answered, that he had none. to. spare. The conversation then followed about the gun, ag stated by H. Huxley. The witness took the gun, but after-wards returned it, and sold the $.30 note to one Clarke.</p> <p>The counsel for Ball insisted, that he ought not to be put upon his defence, till Rowley had proved the actual destru.c'¿ion of the note. The counsel for Rowley insisted, that there was already sufficient evidence of the destruction of the note, or, at least, sufficient to entitle him to go to the jury, upon the ground that he had proved the loss of the note after it fell due. This was opposed by Ball's counsel; and,</p> <p>The Judges gave their opinion, that the several matters proved and given in evidence, were not sufficient to entitle Rowley's counsel to go to the jury, inasmuch as an actual destruction of the note had not been proved ; that Rowley could not recover on a negotiable note, although it was lost after it became due, unless this was followed by proof of its destruction ; and gave judgment of nonsuit, To this opinion, Rowley's counsel excepted ; and the cause came to this Court upon a bill of exceptions, containing the above matters.</p>

<p>First count of narr. on bond from gaoler, and his sureties, defts to the sheriff pltff. tion“haUfthe former execu- and would not suffer any pristape,then, ííe. averring that w!ls gaol on ca. so. O. H^ndgaoher negligently escape, whereby tiie pltff. sustained ^goif.65 t0</p> <p>averring also a ^he sheriff™!aa<1 gainst him? ^</p> <p>Notice to' the dfts. of the pendency that suit, of whereby the plaintiff had sustained damages to $5000.</p> <p>Pleas tcfirst count, 1. That gaoler did not permit O. S. T. to escape. 2. That O. S. T. was not committed, and issue tothécoun-' try on both pleas.</p> <p>3. That O. JET. plaintiff in the ca. sa. permitted O. S. T. ' to escape, concluding with a verification ;</p> <p>H. did not su<* with;n one year after es" the sheriffsusescape within, cludm^ wdhsi verification.</p> <p>Pleas to the second count, ami^that^defendants had suit p&aJin^ concluding with a verification.</p> <p>^tment ^and no notice of the'“ike' conclusion,</p> <p>3 That O, ^'e aad y° notice - with the like conclusion.</p> <p>4. That O. B. did not sue sheriff in one year trom time of escape, no pendín»0-' and that sheriff avail^timseff of statute of •with the’ like oonclusion.</p> <p>„ . Replications to the 3d plea and^ssue“to the country;</p> <p>to^tot^ounT judgment a-sheriff for the escape,and no-the salt pend-dim' •with^'a verification;</p> <p>To 3(1 ples to 2d count, the country,</p> <p>Rejoinder to replication tp 4th plea tp 1st count, denj'ing notice of tiie suit pending; and averring that it was der fended without defendant’s Jcnowledge ; that sheriff neglected to avail himself of statute of limitation.</p> <p>On special demurrers to the 1st, 2d and 4lh pleas to the 2d count, pnd to the rejoinder to the replication to the 4th plea to the 1st count, held, 'hat the rejoinder was not dou ble, •within the rule •which denies the right to include two distinct and independent platters, requiring two separate answers, in the same pleading;</p> <p>that 1he several facts con-er tinned in it ted^ were connrc- and dependent, all tending to the °s0„ght to be introdujul¿meQt a-recovered aefatil?1 in not availing him-statute of limC1 Hel , also, jokder^properly concluded with a verifieation ; inas“"duced'new matter viz. the neglect of the plaintiff in Slot setting up a proper defence to the action for the escape, which matter was not set np in the plea.</p> <p>But held, also, that the plea, being properly one of non damnificatus,-was bid, as being inapplicable to the condition of the bond, and the breach assigned ;</p> <p>Also, that the matter of substance set up in the rejoinder, viz. want of notice, neglect, &c. were no bar even when taken in connexion with the plea which it followed.</p> <p>Held, also, that the 4th plea to the 2d count was bad for the same reasons ; and</p> <p>That the 1st and 2d pleas to the 2d count were defective in form ; inasmuch as they were a mere denial of the substance of the declaration, and should, therefore, have con-</p> <p>eluded to the country.</p> <p>The plea of non damnificatus is applicable to an action on a bond to save harmless and indemnify the obligee, but to an action on no other bond.</p> <p>A gaoler, who has given a bo id to his principal, the sheriff, not to permit an escape, cannot defend himself against an action for the breach of that condition, upon the ground that in an action against the sheriff, for an escape which the gaoler had permitted, the former neglected to plead the statute of limitation, which had run against the action.</p> <p>A plea, Sea which introduces several facts, all of which are necessary to constitute but one point of defence, is not bad for duplicity.</p> <p>A plea, Sea. which introduces new matter, should conclude with a verification.</p> <p>But where it denies the whole substance of the plaintiff’s declaration, it should conclude, So the country.</p>

May ltth,t 824, afi. fa. was issued, and delivered to the-Sheriff of Albany, in favour of Stephen P. Schuyler, against Benjamin Coveil, for $60,09, on a judgment obtained in a Justice’s Court, a transcript whereof had been filed in the Clerk’s office, May 6th, 1824. On this execution, the Sheriffadvertised for sale two small lots in Watervliet, to be sold June 23d, 1824.

The plaintiff declared upon a promissory note of about $103, and joined the money counts in the same declaration, Judgment having passed against the defendant by default, the plaintiff assessed his damages upon a writ of inquiry, which' the defendant now moved to set aside, on the ground that the damages should have been assessed by the Clerk, inasmuch as the plaintiff’s demand was confined to the promissory note, upon which alone he claimed damages before the jury; that the…

The declaration was in assumpsit, on a promissory note, dated July 2d, 1820, for $320,02, with interest from date, in-eluding, also, the usual money counts. Pleas, the general issue, and payment, with notice of special matter. Before pleading, on the 9th March, 1824, the defendant paid $60 into Court.

<p>^ A reference granted, if canse, which ^¿ole* action^</p>

Both the defendants had been sued, and judgment oh- ... tamed against them in assumpsit; but Dams, having been discharged under the act to abolhh imprisonment for debt in certain cases, he was not liable to the imprisonment of his body, and the plaintiff stipulated to allow him the benefit of this discharge, without plea. Having proceeded regularly to judgment against him and his wife, the plaintiff issued a ca. sa. upon which, by his direction, the wife alone was imprisoned.

^HE defendant, a Justice of the Peace, being brought up' oh an attachment, at the present term, for a contempt in disobeying a rule to make a further return to a certiorari, had answered interrogatories, explaining the reason of his neglect, and now returned fully, and to the satisfaction of the plaintiff’s counsel; but it was agreed that he must pay the costs; and thee only question was, how much these should be.The defendant had been arrested upon the attachment, by the…

At the Sullivan Circuit, the jury found a verdict for the defendant, which was afterwards set aside by this Court, and a new trial granted, with costs to abide the event. The sole ground of setting aside this verdict was, that the jury had found against evidence, and, on deciding upon the case, the Court did not advert to this in inference to the costs of the trial. And it now being mentioned to the Court, that the rule was wrong in this respect—

Os error from the Washington Common Pleas, The cause was brought, into that Court by appeal from a Justice’s Court, wherein Cowen recovered a verdict and judgment of $50, against Bush, The latter appealed to the Common Pleas, and, according to the rules of practice in that Court, assigned errors generally, upon the coming in of the return, and Cowen pleaded in millo est erratum.

<p>agdmt whom a reference is moved, may of the referees, instead of any ene named in the notice ; but he cannot, by shewing cause, entitle himself to a further nomination. If a name is rejected for cause, it lies with the mover to nominate a snbsti-* -inte, Se the mover is always entitled to nominate 2 referees.</p>

In trespass for cutting timber, contrary to the statute (1 R. L. 525, 526, s. 29,) the plaintiffs had recovered damages to $6 ; and

At the last Oyer and Terminer of Oneida, the defendant was convicted on an indictment, which set forth, that, on the 9March, 1824, at &c. a certain indictment was found and presented, in due form of law, in the Court of General Sessions of the Peace, then and there held before Truman Enos and Samuel Jones, Esquires, Judges of the County Court, in and for said county, and Uriah Stephens, Esquire, one of the Justices of the Peace of said county, and others their associates,…

Chamberlin obtained judgment in this Court against Day, for $ Ofi.Gl, at August term, 1824, which was assigned by Chamberlin to Wiley, for a valuable consideration paid, without any notice or information, that Day had purchased a judgment against Chamberlin, nor had Chamberlin any notice or in formation to this effect, at the time of the assignment. A fi. fa. had issued upon the judgment in favour of Chamberlin, upon which the Sheriff had levied $30.

A motion was made, in this cause, to amend the ae etiam of the capias ad respondendum, which the attorney for the Plaintiff> by mistake, issued in covenant, when it should have been in assumpsit. This was opposed, because special bail had been put in.

’^'HE defendants having obtained a verdict, entered their rule for judgment, and, after the lapse of four days thereafter taxed their costs ; and then, before the record was filed, the plaintiff obtained an order to stay proceedings, from the Recorder of Albany, with a view to move for a new trial, on account of newly discovered evidence; and on a mo- . , r, tt n , , . , , tion by L. trl.

<p>íf a juror leave his seat for a short time, without the knowledge of the court or parties, hut no testimony is given during his absence, and he holds communication with n© one on the subject of the cause; though this he a contempt ofcourt. yet it does not avoid the ver« diet.</p>

The verdict being for the defendant, and a case being made presenting several questions of law, as to the decisions of the Judge at nisi prius ;

<p>A resolution oi the common council of the city of Albany, that certain sums should be raised for the support of the poor, and for the city night watch and lamps, and to pay the interset of the city funded debt, &c. is imperative upon the board of supervisors of the city and county of Albany, who are bound to raise such sums upon the city.</p> <p>They have no right to refuse, on the ground that large sums of money, heretofore raised for these purposes, have been misapplied.</p> <p>The duties of the board of supervisors, in raising moneys on vote of towns to destroy noxious animals, &c. (2 R. L. 132, s. 15) and on the certificate of commissioners of highways, to improve roads, (2 R. L. 280, s. 31) placed on the same footing by A. Spencer, arg. and adverted to by the court, in delivering their opinion, as illustrating the main question.</p> <p>It seems, therefore, that in these and the like cases, the duties of the board of supervisors, in raising money, are merely ministerial.</p>

The defendant, Wait, an attorney and counsellor of this Court, attending at this term, was arrested on a bailable ca~ P*cs’ against him and Rogers, a common person.

<p>In the Herkimer Common Pleas, the judgment was for the defendant. And, on error to this .Court, it \vas reversed, and at the last October term a venire de novo was awarded to the Circuit; hut the plaintiff, without waiting for the event of the cause upon the trial, taxed his costs and perfected his judgment of reversal, which it was now moved to set asidlas premature and irregular.</p>

Action, on a joint and several promissory note, made by the defendants, who pleaded separately the general issue. On the trial, the verdict was for the plaintiff, against Curtiss, and for Weed, against the plaintiff, upon which Weed’s attorney entered a rule for judgment, in his favour, with costs, which it was now moved to set aside, on the authority of the case, Ex parte E. Nelson, (1 Cowen’s Rep. 422.)

Slander, for charging the plaintiff with stealing goods, Plea, the general issue, with notice that the defendant, on trial, would prove the truth of the words spoken, in his justification, And now,

Phebe Johnson petitioned the Judges of the Court of Common Pleas of Montgomery county, that such proceedmgs might be had against-—.-a Justice of the Peace of that county, as the constitution and laws of this state require, for a false return to a writ of certiorari, and for keepáng his office in a grog or dram shop, setting forth the partióulars, and verifying the petition by her affidavit.

Kellogg sued Griffin before a Justice of the Peace oí t . ' , „ ■ , T ..

For the facts out of which the present question grew, see 2 Cowen’s Rep. 602, S. C. On referring the costs for taxalion, as there mentioned, (page 604) Judge Irving refused to tax a new record of judgment upon the return of the writ of inquiry, and the services about entering and perfecting a new judgment; but he allowed the appropriate services for . . , , . . , , r „ . „ , continuing down the original record remitted trom the Court of Errors, with a history of the…

On the 8th May, 1824, the plaintiffs brought assumpsit for money had and received, against the defendant, in the ,/VezoYork Common Pleas, and laid their damages at $250. The cause was tried the 25th September, and the jury found for the plaintiff, $38,33. The total amount of the accounts in controversy between the parties, was $394.

On an appeal from a Justice’s Court to the Onondaga Common Pleas, between Clarke, appellant, and Pratt, appellee, the notice of appeal served on the Justice did not state, that he appealed to the Court of Common Pleas of the county of Onondaga. The appeal bond recited that the appeal was to that Court, and the Justice duly made and filed his return ; but the-Court, on motion, quashed it on the ground of the above defect in the notice.

In a cause in the Common Pleas of Jefferson, between Stone, plaintiff, and Hooker, defendant, the Court made a rule that all proceedings on the part of the plaintiff be stayed till the costs of a previous action for the same cause against the same defendant brought in the same Court, and removed, by the defendant, into this Court by habeas cor• pUS) be first paid. The suit upon the habeas corpus, not being pursued by the plaintiff, was at an end.

The defendant was arrested and holden to bail, while he was attending as a witness before arbitrators. The defendant then resided in the state of Massachusetts, but being in the county of Columbia, was subpoenaed to attend. A motion was now made, that he be discharged from the arrest, and that the bail bond be delivered up to be cancel-led.

Case, for obstructing the waters in the outlet of a lake, by which the plaintiff’s lands were flowed and injured, tried at ^e Otsego Circuit, and a verdict found for the plaintiff, of a ' 1 $90. The plea was the .general issue.

A ft. fa. was issued, in this cause, to John Doty, Esq. late Sheriff of the county of Washington, about the 1st Septemher, 1820, directing him to collect $1273,64, with interest from 1th May, 1819. Doty then had in his hands several writs of fi.fa. against the defendant, in favour of different piainliffs, which were arranged and paid; but the Sheriff claimed fees upon them to $31,51.

<p>At the last August term, application was made, in these causes, for judgment as in case of nonsuit, which was founded on one notice and affidavit, embracing all the causes; and but one motion was made for the whole. This motion was resisted by one set of affidavits, embracing all the causes, and containing the same facts as to all. The motion was denied, with costs, and only one rule entered. These costs were taxed at $14,18 in the first, and $8,43 in each of the other causes.</p>

Debt upon the 4th section of the act for the prevention of frauds, (l R. L. 76.) The declaration commenced by demanding $1000 of debt; and the 1st and 2d counts, res- .. , . , , pectively, stated the value of the goods at $325, and ciemandej that sum. The 3d count stated the value of the goods at $350, and demanded that sum; the sums in the ^ree counts making $1000. Plea the general issue. Verdiet for the plaintiff at the Oneida Circuit, December 26th, 1823.

This cause having been referred pursuant to the statute (1 R. L. 516, s. 2,) the referees had reported generally for the plaintiff, upon which the attornies for the respective parties agreed upon a case containing the facts as they appeared in evidence before the referees, and thereupon submitted a question of law to this Court, in the form of a motion to set aside the report.

Ejectment for lot No. 90, in Hector, in the county . . arof Fompkins• Verdict for the plaintiff, at a Circuit in lompj ■ ¡ogg }Jefore Nelson, C. Judge, who certified that it appeared, at the trial, that this lot had been patented to Bishop Hadley, a soldier of the revolutionary war, in the line of the state of Mezo- York, in the army of the United Stales, who died before the Tlth March, 1783 ; and that the lessors of the plairxtifFwere his heirs at law, upon which title the…

<p>Assumpsit to recover the balance of an unsettled account. The declaration was for money paid, laid out and expended, and lent and advanced by the intestate for and to the use of the defendants, money had and received by the defendants for the use of the intestate, goods, wares and merchandizes ° sold and delivered, work, labor and services rendered, and materials furnished by the intestate for and to the defendants, for pay and salary as their agent, and on an account stated, The defendants pleaded the general issue, with a notice of set off, of monies paid, laid out and expended, monies lent and ’ V r , sold, work and advanced, monies had and received, goods labor, &c.</p> <p>The cause requiring the examination of long accounts, it was referred at January term, 1822, heard by the referees on the 18tk February, of the same year, and at various subseSuen^ ¿ays, and submitted to them on the 21 si March, 1822 ; two of whom reported for the plaintiff $14,9 ¡3.40, after deducting $2317,53, being the amount agreed between the parties to be due from John Reid, the intestate, to the defendants, on an account current between him and a joint concern, in which the defendants and John Reid and Robert Alsop were interested.</p> <p>It appeared in evidence before the referees, that the defendants’ factory was situated in the town of Sandlake, ip the county of Rensselaer, about ten miles from the city of Albany. John Reid, the intestate, was agent for the defend-, ants from the 2d June, 1812, to the time of his death in August, 1821, and, during the time of his agency, resided in the city of Albany. The factory of the defendants was ip actual operation from the 1st May, 1813, to the 3d May, 1815, when it was destroyed by fire, and after this, no glass was manufactured by the defendants. The plaintiff produced an account current, showing a large balance due to her for principal and interest. The debit side of the account contained 527 items, each of which was for cash ad-. vanced, or paid out by the intestate, for the purpose of keeping the factory of the defendants in operation. The credit side of the account contained 787 items, each of which was for cash received by the intestate, for glass made at the factory, and for other property of the defendants, sold by the intestate on their account. The whole amount of cash ad-, vanced and paid by the intestate, for the defendants, between the 1st May, 1813, and the time of his death, and charged to them, was $107,579,74. The amount received by him during the same time, and credited to the defendants, was $100,099,88.</p> <p>The plaintiff proved an actual advance, or payment of cash, in every instance, as charged in the debit side of her account, with the exception of four items, amounting in the whole, without interest, to $288,99.</p> <p>The referees charged the plaintiff, in making up their report, with $105,11, being the amount, exclusive of interest, of two debts due the defendants; on the ground that she had not shown that the intestate used due diligence in collecting them.</p> <p>The defendants were charged with the sum of $3125, for the intestate’s salary as agent, from the 1st May, 1813, to the 1st November, 1815, at the rate of $1250.</p> <p>They were also charged with the necessary disbursements of the intestate in and about the business. An interest account was also stated, in a general account current, in which the defendants were charged with interest from the time of the advance, or payment of each.sum of money, to the 4th day of May term, 1822, and credited with interest on each sum of money received, from the time of its receipt till the same 4th day of May term. Interest was also calculated on the items of salary, from the end of the year when the salary became due, to the same time. The balance of interest thus found on all the debits proved and receipts admitted before the referees was $10,348,08.</p> <p>The balance of principal which the referees found due at the date of their report was $6882,91.</p> <p>In March, 1806, the factory of the defendants Went into operation. In that month, the defendants appointed James Kane, of the city of Albany, their agent, by a resolution in the following words : “ Resolved, that James Kane be, and he is hereby appointed agent.” Kane continued to be the agent of the defendants from the time of his appointment till the intestate’s appointment. In the month of April, 1809, the defendants leased their factory, together with all things in, and attached to it, for 3 years, from the 1 st May, 1809, to five stockholders. Kane, one of the lessees, was their agent, and resided the city of Albany, during the time of his agency. At the expiration of this lease, namely, on the 1st May, 1812, the intestate, Robert Alsop, and the defendants entered into a co-partnership under the name of John Reid & Co. for the purpose of manufacturing glass at the defendants’ factory, which was to continue for one year: Robert. Alsop superintended the business at the factory, and resided there. The intestate resided in the city of Albany and made the necessary advances of money for the concern, and received the proceeds of the sales of glass, and other property, in the same way as he advanced and received money while agent of the defendants.. By the articles of this co-partnership, the stock and materials of the defendants on hand on the 1st May, 1812, and which amounted as per inventory then made, to $13,997,87, was deemed,by the parties, an advance to the partnership fund.; and an equal quantity of materials was to be returned to the defendants on the 1st May, 1813 ; or the deficiency charged to thé intestate and Alsop. When this co-partnership ended, viz. on the 1st May, 1813, an inventory was taken of all the materials and stock then owned by the defendants. They were found to amount to $13,186,58. The accounts of the business of this co-partnership were rendered by the plaintiff to the defendants and Alsop, during the reference, and adjusted by mutual consent, and the balance sheet produced on the hearing. A balance of this concern was struck as of the 1st January, 1815. In the' liquidation of the account of this concern with the intestate, interest was debited and credited, and allowed by the defendants in the same manner as it was debited and credited in the general account current of the plaintiff before mentioned, and there was a balance of interest thus allowed to the intestate of $1393,10. By the articles of co-partnership, it was agreed that interest should be allowed on the amount of the inventory, and on all monies advanced by Reid Alsop, who, by the articles of co-partnership, were to make all necessary advances of cash to carry on the business; and it was also expressly reserved by the defendants, at the time of the adjustment of the partnership concern, that the question of interest in this cause should not be affected by that adjustment, any further than the articles of co-partnership and the account made in pursuance of them affect that question. A balance of principal and interest was found due to the defendants from the intestate on the 1st January, 1815, of $1531,38, and, by agreement of the parties, this sum, together with the interest to the 4th day of May term, 1822, being $786,15, was to be deducted i loin the amount found due from the defendants to the plaintiff; but the interest on that balance, from the 1st January, 1815, was not to be deducted, unless interest was allowed on the accounts between the parties in this suit.</p> <p>When the intestate was first appointed agent, it was by a resolution in the following words: “ Resolved, That John Reid be, and he is hereby appointed agent for this corporation”—and every subsequent appointment was in the same words, or words of like import. When the intestate took the active agency of the factory, in May, 1813, the stock, materials and funds of the defendants were insufficient to keep the factory in operation, and large advances were required for that purpose.</p> <p>No specifick agreement, between the intestate and the defendants, relative to his salary, was proved. It was, however, fully proved, that $1250 per year, exclusive of disbursements, was a reasonable compensation for his services as agent; that Kane, who preceded him as agent for the defendants, was allowed by them, on the settlement of his accounts, the-same sum per year, for salary, besides expenses, although there had been no agreement between him and the defendants on the subject; and that Kane had been allowed the same compensation by the lessees, some of whom were directors of the company when the intestate was appointed their agent, and while he continued to be so. The proceeds of all glass manufactured by the defendants, after the 1st May, 1813, were received exclusively by the intestate. All the accounts of the corporation, and book of minutes, were kept by the intestate. The general account current produced by the plaintiff, was rendered to the defendants on the 12th day of October, 1821. An account of the sales of glass received and sold by the intestate, on account of the defendants, was rendered to them at the same time, and no account current, or account of sales, was ever before rendered to them.</p> <p>The whole of the accounts were not made out until after the death of the intestate, owing to his habits, though several attempts were made to complete them.</p> <p>it was admitted, that on the 2d day of January, Í 819, when there was a meeting of the directors at his house, the intestate stated to the directors that there was a balance due to ^rom ^18 defendants. Then one or more of the directors asked him to make out his account, and present it to the directors 5 and since that tíme he has been asked for the account by one or more of the directors. These requests were made by the directors, individually, but no resolution or entry was made, concerning the intestate’s accounts, on the minutes. At a meeting of the directors, on the 27ife day of December, 1817, the subject of the accounts of James Kane was agitated before the board, and the following entry was made in the book of minutes: “ John, Reid brought the subject of James Katies demand against the company before the. directors, and, after various views of the same, it was agreed, that Mr. James and John Reid .he appointed a committee to liquidate and adjust the same.” On the 27lh November, 1806, a resolution was passed, appointing a committee to audit the accounts of Kane ; also, on the l Alh April, 1807; also, on the 23d day ot' September, 1807 ; and, also, on the 23d February, 1809.</p> <p>The referees were unanimous in opinion, that there was due the plaintiíí, at the date of their report, for principal, the sum of $8882,91 ; but they differed in their opinion on the subject of interest, the referee dissenting. from the report, being of opinion that interest ought to be calculated only to the 1st day of January, 1816, and the two referees making the report being of opinion that it should be calculated to the Alh of May term, 1822,</p> <p>The question of interest was the only one raised upon the case; and it was agreed, by the parties, that this Court should settle the principles on which it should be calculated, and- to what time, and refer it again to the referees, to report the amount in addition to the principal due; that their reports be deemed as one, and considered as made of May term, 1822; but no judgment to be entered, until-4 days in term shall have elapsed, after the making of such additional report.</p>

-On (¡he 14th March, 1821, the appellant filed his bill in the Court of Chancery, against the respondents, the real and personal representatives of' Thomas Ellison, deceased, to compel the specific performance of articles of agreement made between the appellant and Thomas Ellison, in his life time, dated Jan. 14th, 18~0, by xvhieh.

<p>Appeal from the Court of Chancery The appellant filled his bill in the Court of Chancery on the 29t/i of Aprils 2822, praying that a conveyance executed by him to the respondents, on the 19th of January, 1821, for his farm, situate at Johnstown, in Montgomery county, and a bill of sale of personal property thereon, and a conveyance of another farm in St. Lawrence county, and the personal property thereon, might be set aside. The bill alleged that the ap - pellant was a native of Ireland, of the age of 75 years ° that he had resided in Johnstown 35 years ; that he had 7 children—Charles, of the county of St„ Lawrence—John t Martha and Elizabeth, the last being the wife of W. Carr, who reside in the state of Indiana—Mary, who resides in Ireland, and Joseph and William, the respondents, resident at Johnstown. That his farra, at Johnstown, contained 350 acres, was of the value of $8000 ; upon which the appellant and his wife resided till the autumn of 1820. That some time previous to 1820, in consequence of advanced age and Imbecility of body, he resigned the management of the princífai part of his real and personal estate to his sons, John, Joseph and William, who resided upon and occupied his farm ; that his son-in-law, W. Carr, leased the farm in 1819, and left it in the autumn of 1820° That for some time before the appellant was involved in a family quarrel or contention;, which arose from unnatural jealousies and dissensions between his children, respecting the use and occupation of his estate ; that his wife, Martha, aged about 68 years, in delicate health, and peevish in her disposition, took an active part in favour of some of the children, in opposition to the views and wishes of the appellant, which ultimately produced a dispersion of his family in the fall of 1820, by the removal of his daughter Martha, W. Carr and Elizabeth his wife, to the state of Indiana, his son John having previously removed there, his wife leaving home and taking lodgings with Mrs. Shurtliff, in the village of Johnstown-—the appellant and the respondents thus being left in the sole possession of his farm=, Thai the appellant owned a farm in St. Lawrence county, (If. Y.) on which bis son Charles then resided, That he was called upon to pay the hoard of his wife at Mrs. Shurtlff’s, .gome months thereafter, which, by the advice of the respondents, he declined ; and, shortly after, Mrs. Skurtlff commenced an action against him in a Justice’s Court. That he left the defence of the suit to his son William, whom he directed to ascertain the amount of the demand against him, who informed him. on his return from attending on the suit, that Mrs. Shurt.lff^s demand was $75, and that the appellant’s wife had contracted a debt of about $100., at Campbell's, a merchant in the village of Johnstown. That William feigned to be very much cast down, upbraided him with not having advertised his mother pursuant to his previous advice, and said that if she w.as permitted to go on in that way, she would soon dissipate his whole estate, and unless the appellant should immediately do something to prevent it, the respondents would be forced to leave him. That the appellant was in great distress ojf mind, and sorely grieved at these representations of William, confirmed by Joseph,• and asked what was to be done to prevent his wife Martha from dissipating his whole estate. William proposed that he should convey to him and Joseph his whole real and personal estate, which would put it out of the reach of his wife and the persons dealing with her, and that she would return home1 if people would np longer tr.ust her ; that to secure his. maintenance they would give him a mortgage of $5000 upon the farm, and a bond to pay him $50 a year, keep a good horse, and.furnish him with all things necessary for his comfort and convenience, and indemnify him against the maintenance of his wife ; that he, confiding in the representations of the respondents, and desirous o£ saving his estate, agreed to the proposition. That he proposed to the respondents to go to Johnstozon to draw the writings, to which they objected, alleging that the lawyers there were all combined against them in favour of their mother, and proposed to go to the office of Mr. Reynolds, at Amsterdam, in the same county, who was an entire stranger to them, all of which was falsely and fraudulently represented to him, as an excuse to decoy him out of the reach of his. old friends and acquaintances, who probably would have adyjsed him from an act sq improper and inconsiderate.. That on the 19th of January, 1821, the appellant, William the respondent, and one John Clary, the particular friend of William, went to Amsterdam, about 12 miles from his residence, and called upon Mr. Reynolds to draw a deed of his farm to the respondents ; that before the deed was executed, William called him aside, and reminded him of his title to about 100 acres of land in St. Lawrence county, on which his son Charles had resided for 12 years, and insisted that this farm should also be conveyed to him, in trust for Charles—that as he trusted the respondents with all the rest, they could safely be trusted with that also. That he, confiding in their honesty and good intentions, consented to put in the deed the farm in St. Lawrence county, and also all his personal property in Johnstown, and in the use and possession of his son Charles, in consequence of the like persuasions and representations ; that the deed thus drawn was then and there executed and delivered; that a mortgage was then drawn, on the farm in Johnstown, and a bond, in the penalty of $50.00 from the respondents to the appellant, ¡conditioned for the maintenance of the appellant and his wife during their lives, aqd to pay the appellant an annuity of $50. That the appellant did not execute the conveyances for the purpose of defrauding his creditors, or of hindering or defeating the collection of any existing demand, but, on the contrary, it was understood and expressly agreed, that the respondents should pay all debts due from him, which were few in number and small in amount; that they had, however, paid little or no attention to his debts. That William took all the writings then executed, including the bond a.id mortgage, and that they were all put into a trunk in the house where the parties lived, and to which he (Wm.) had access at all times; that the appellant had been deprived of the possession of the bond which accompanied the mortgage, and that he believed William had possessed himself of $t, with all title deeds and other papers belonging to the appellant, and had either concealed or destroyed them, so that they were out of his possession or power to regain them ; that when the respondents were informed that the |>ond and other papers had been taken out of his possession, they denied having any knowledge of them,' and mocked bim by offering to give new ones ; that they fraudulently detained the originals, and concealed them from him. That the personal property conveyed, and since in possession of the respondents, was worth $400, That at the time of the conveyances the respondents lived with the appellant, have since married, and still continued to live on the Johnstown farm, without permitting the appellant to exercise any acts of ownership. That after the conveyances, his wife returned' home, remained there a short time, then went and lived with one Wells, afterwards with John Clary, and finally, in March, 1822, the respondents lodged her with one John Taylor, a poor man, occupying a log hut on the farm ; and that she was in a helpless condition, as well as the appellant, the respondents insisting on their living with'them, or at such places as they designated. That he remained in the family of the respondents until about 3 weeks before he filed his bill, when he thought it most prudent and safe to depart; and he took up his abode with Henry Cuyler, where he was at the filing of the bill, without the means of making him. a compensation.</p> <p>The bill then charged, 1. That the appellant was induced, by the persuasions and false representations of the respondents that their mother was^ spending the whole estate, to execute the deed for the purpose of preventing it, and upon no other motive: 2. That at the time he executed the deed, he did not intend to make any settlement or disposition of his estate whatever, more than to remove it out of the reach of his wife Martha, so that she. might not, by her extravagance, spend or incumber it: 3. That there was no other moving cause to execute the deed, but the persuasion and representation of the respondents of the absolute necessity of so doing, to prevent the whole estate being dissipated by their mother; and that the bond and mortgage were proposed to be given by the respondents merely to give colour to the transaction ; and that the terms of these were altogether dictated by them, and acceded to by him, he not believing that the plan was to make him wholly dependent on the respondents for a. living: 4. That the respondents have not complied with the condition of the bond : 5. That 3 or 4 years since, the respondents purchased a farm adjoining the appellant’s, for the sum of $2000 ; that the complainant, 4o assist them in paying for it, loaned them, at different times, $300 and upwards5 and that, about a year ago, (in the spring of 1821) he borrowed of their brother-in-law, T. Goff, $170, for which he gave his note, which note the respondents pretend to have purchased, and to hold as a debt against the appellant, and that they refuse to pay him his annuity : 6. That on or about the 8th of June, 1820, and while his wife Martha was from home, the respondents moved and persuaded him to give one or both of them a conveyance of the Johnstown farm, for the purpose of preventing his wife from running him in debt, and encumbering his estate ; that in August ©r September following, William being dangerously ill, and his life despaired of, the respondents re-conveyed this to him, but yet pretend that they will avail themselves of the conveyance to them, and withhold the deed from the appellant»</p> <p>The bill prayed for a re-conveyance to the appellant, &c, and for an injunction, and was sworn to by the appellant.</p> <p>The respondents, on the 7th November, 1822, answered separately. Joseph admitted all the preliminary facts stated by the appellant; but denied that he ever made any false representations to his father, to induce him to execute the deed to himself and William, in January, 1821 ; or that he knew the intention of his father, to execute such a deed, until it had been completed at the office of Mr. Reynolds.</p> <p>William denied telling the appellant, that his wife had contracted a debt of $100, or any other sum, with Campbell, or that he ever called on Mrs. Shurtliff respecting her demand for board, until after the deed of January, 1821, was executed, or that he had informed the appellant that he had done so, or that her demand was $75, or that he had told the appellant that if his wife was permitted to go on in this way, she would, in a short time, involve him in debt, and dissipate his whole estate, or any thing to that effect; otherwise than as hereinafter mentioned by him. He admitted that on the evening of his and his father’s return from Alba y, about the 18!/i January, 18213 they found a copy of a Summons against the appellant in favour of Mrs. Shurllijf; that the appellant then asked him what was to be done ; that he then told his father, as hé had often told him before, that if he had any thing to give him, he wished to know it; otherwise, he would abandon the farm ; that, as the appellant and his wifé were acting, they would soon have little enough for themselves. That the complainant answered, he had always intended the farm and the personal property for the respondents ; and it was then agreed, that a deed should he executed to them for the real, and a bill of sale for the personal estate, which was áccordingly done, and the bond and mortgage executed as mentioned in the bill. He detailed what passed at the office of Mr. Reynolds in his presence and that of John Clary / that as near as he could recollect, the appellant stated to Mr. Reynolds, that he owned a farm in Johnstown ; that his wife refused to live with him; that he was apprehensive she would run him in debt; that the merchants would trust her, and he should have to pay her debts ; that he had understood he should be charged $5 a week for her support, and, at that rate, he could not support her, and he was determined to provide for her maintenance on the farm, and get rid of all his estate, so that he could be kept in goal but for a limited period; that he intended his farm and the personal estate upon it, for the respondents, and he might as well give it to them to-day as to-morrow ; and then stated what his sons were to give, and secure to him for the farm, and the personal property. That he, at the same time, conveyed the farm in St. Lawrence county, on which the appellant’s son Charles lived, to William, who promised that he would do with it, and convey it to Charles, as the appellant should direct; and that he has always been, and still is ready to do so.</p> <p>Both of the respondents admitted, that on the 20th January, 1821, they received from the appellant, a bill of sale of the personal property on both the farms; the personal property on the farm in Johnstown to belong to the respondents; and that in St. Lawrence to be held for Charles, or to be disposed of for the benefit of him as the appellant might direet; that the personal property of which they possessed themselves does not exceed $ 545 in value ; and that they have never possessed themselves of that in St. Lawrence County.</p> <p>William admitted that they were to pay all his father’s debts, except the debt due Goff.\ which he and Joseph were bound to pay ; arid that they have complied with this part of the agreement. He denied that he took away the bond and mortgage executed to the appellant, or that they were, to his knowledge, placed in an unlocked trunk in the house, as charged in the bill.</p> <p>Joseph further answered, thát when he executed the bond and mortgage, he believed the conveyance to William and himself to be an absolute deed, subject only to the claims secured by the bond ánd mortgage. Add he denied that the bond and mortgage were intended ás a mtere cover to the transaction, or that they Were proposed by William; but that, on the contrary, the transaction was fair) &c.</p> <p>Both answered, that immediately after the deed was executed, they took absolute possession of the farm ; and that the appellant, for about 10 months afterwards, was satisfied with the transaction. That they respectively married in May, 1821, and February, 1822, and lived together on .the farm. That in 1821, their mother came to reside with them, and continued with them about 4 months ; that she then lodged with Wells, of Amsterdam, till the winter of 1821-2. She then removed to John Clary's, where she continued till April or May, 1822, and then removed to O. Taylor's, where she continued till the bill was filed, when she came to reside with the respondents. That they never refused to pay Wells for her board. They admitted the conveyance in June, 1820, by the appellant, to them, of the farm at Johns-town ; that a mortgage thereon was executed, for $3000, by William, to the appellant; and that, on the request of the latter, they re-conveyed to him in September following, William being then dangerously ill. That they know of no consideration or cause for this conveyance to them, unless it was in consequence of an expected prosecution from one Lob-Jell, and to defeat his recovery,</p> <p>William further answered, that in February or Mdrch, jg22, he was charged with being in possession of the bond Snd other, papers. He denied that he ever had them after their execution,- or that he knew where they were', until a few days before the filing of the bill. He supposed the bond had been sent with the mortgage to be recorded, oi that*Alexander McCall bad it; but he had since been informed that the bond Was with his papers, at Hugh JtPCalPs $ ánd that if Was, with other papers, delivered to him in June,, 1821, although he had no recollection of it.</p> <p>Both admitted, that on the purchase of the farm adjoining iheir father’s, for $2000, he gave them $500 towards the purchase money j that this Was in 1817 ; that he at thé same time borrowed $170 of & off, which they are bound to pay.</p> <p>Both insisted, t. That they purchased the farm for a good and valuable consideration, being the bond and mortgage executed by them ; that the conveyance was. not procured by representations that their mother was spending the whole estáte, or any other false representations or persuasions; but that the appellant, of his own free will and accord, conveyed to the respondents, by way of settlement and advancemeht. 2. That it was in pursuance of a previous contract, well understood and agreed upon, that the conveyance was made ; and that the persuasions and representations of the respondents, of the necessity of the conveyance to prevent their mother from dissipating the estate, were not the only moving cause for making the conveyance and bill of sale.</p> <p>Joseph admitted that he had held himself out as a bona fide purchaser fora good and valuable consideration secured to the appellant; and that the principal consideration for making the conveyance and bill of sale, was the natural love and affection which he had for the respondents. That, previous to the conveyance, he had made no contract or agreement with the appellant, respecting the purchase of the farm ; and that the appellant executed the deed on a contract well understood between him and William. .</p> <p>Both admitted, that the manner of using and occupying the appellant’s real and personal estate had been a source of contention in his family for a number of years; and sHvae difficult for any of his children to have his good opinion for any great length of time. That be frequently changed his opinIon and wishes respecting them ; and as often wished to give one or the other a greater share in the management and use of his estate. That their mother had sometimes appeared to favour those children the most whom the appellant, at the time, was most inclined to oppose; so that it was difficult for any one of the children to enjoy the good opinion of the appellant and his wife at the same time. And that the dis= sensions in the family had induced some of the children to .remove, at the times mentioned in the appellant’s bill.</p> <p>The cause having been put at issue in the Court of Chan» eery, by a general replication to both answers, witnesses were examined on both sides.</p>

The pleadings and proofs with the decree, and the late Chancellor’s reasons in its support, are stated in the report of the same case, as it stood in the Court below, under title of E. S. Kenney v. Udall & Kenney, (5 John. Ch. Rep. 464.) All the facts material to the view taken of the case here, will be found in the opinion of Savage, Chief Justice, who delivered the opinion of this Court.

Error, from the Supreme Court. The action in that Court was assumpsit, by the the President and Directors of the Manhattan Company against Walter Franklin Osgoodr Edmund Charles Genet and Martha B. his wife, Samuel Osgood and Juliana his wife, Susan K. Osgood, Be Witt Clinton and Maria his wife, John h. Morton and Sarah his \yife, and Hannah Clinton, which Walter, Martha, Juliana. and Susan, were alleged, in the declaration, to be heirs, and devisees, and Maria, S.arak and…

<p>Error from the Súpleme Court, upon a bill of exceptions. Judgment was rendered for the defendant below, who was also the defendant in this Court, upon facts which are, to every material purpose, detailed in the report of the Same causé", as it came before the Supreme Court, (20 John. Rep. 386) in January term, 1823.</p>

<p>Error from the Supreme Court upon a special verdict. The action in the Court below was brought by Tillou against Sharpsteen, upon covenants of seisin contained in two deeds in fee, from Sharpsteen and his wife to Tillou, for two sever» al parcels of land in the town of Washington, Dutchess county, dated March 16th, 1819. The cause was tried at thp Dutchess circuit, where the jury, found a special verdict ; that after the deeds were ‘executed, the plaintiff below» op or about the 1st of April, 1819, entered upon and occupied the premises for a short time ; that Moses Hallock deceased, Was, at the tipie of his death, seised in fee of the prealises ip question ; that he died in 180,3, leaving a widow and several children his heirs at law, having made his last will; that Phebe Hallock, who was the only witness sworn on the trial to establish the will, swore that herself, Edward Hallock and John Allen, were subscribing witnesses to the will ; that Edward was the son of Moses Hallock the testator, and Edward: is now deceased ; that Phebe, the witness, was his wife, and now his widow ; that John Allen is infirm and unable to attend Court, and is unfit to, give testimony from loss of mind ; that the will was duly executed by Moses, the testator, and, witnessed by the above named witnesses, in presence of each other and the testator ; that, by this will, the testator, directed his executors to pay his debts, &c. gave to his wife, if she outlived him, the best room in his house, tvvo cows, her choice of one of his horses, all his household furniture., she to have a good comfortable maintenance out of the income of his real estate as long as she remained his widow ; then, after several legacies, he gave to his two sons Edward: and Isaac M. the use and improvement of all his real estate, except their mother’s maintenance, during her natural life ; and directed that, after her decease, all his real estate should, be sold ; and gave to his two sons Edward and Isaac M. £l 50 a piece » and, then, bis will was that his five sons, Isaiah, Peter, Obadiah, Edward and Isaac M. have all the rest of his estate, of all kinds, npt before disposed of, to be equally divided between them. He then appointed Phineas Lounsberry, Samuel Doughty, and his son Isaac M. his executors for the purposes in his will mentioned; that Doughty and Lounsberry, two only of the executors, ever proved or took on them the execution of the will ; they did this, on the %d September, 1803 1 .that the testator, at his death, left a widow, Bridget Hallock, and 5 sons, before named, and 6 grand children, the children of his deceased daughter Miriam; that Obadiah died in the year 1810, leaving 4 children who ¡are yet alive ; that Isaiah, and Peter are now living; that Edward died in 1810, leaving Phebe his widow, and 3 children, 2 of whom are living, and 1 dead that Isaac M. died in June, 1817, without issue, was never married, nor did he leave any last will or testament; that Bridget, the widow of Moses Hallock, died in the spring of 1818 ; that the children of Miriam are living ; that Lounsberry and Doughty, as acting executors of the will of Moses Hallock, executed a deed for the premises in question to the defendant below, William Sharpsteen, dated the 29iA August, 1818 ; that Isaiah Hallock and Peter Hallock also executed their deed to the defendant below, William Sharpsteen, for the premises in question, dated the 21 si day of May, 1818 ; but whether, &c. and if, &c. the jury assessed the damages at $3578,56, being f of the consideration money in the deeds to the plaintiff below, wjth interest.</p> <p>On this verdict the Supreme Court gave judgment for the plaintiff below, with $225,54 costs, making with the damages $3303,80, in-January term, 1823, for which they gave their reasons as follows;</p> <p>Reasons for the judgment in the Court below.</p> <p>The intention of the testator, in directing a sale, seems iq have been, among other things, to provide for Edward and/saac, by securing to them £150 each, out of the avails of the farm, in the first instance; and then an equal share with the other sons. This cannot be carried into effect, because Edward and his wife being witnesses, the devise to him is void. (1 R. L. 367. 4 John. Rep. 311. 1 John. Cas. 163.) Thus one object in view, when the power to sell was created, can-pot be attained. Isaac also died before his mother. As to him the £ 150 are lapsed ; for it was a personal devise to him solely. If the sale by tfie executqrs is held valid, they cannot make distribution according to the will.</p> <p>The subsequent events are such, that had they been foreseen by the testator, a sale would not haye been directed. In construction of these powers, the intent is much regarded, If the object in creating the power ceases, the lands descend fa the heirs at law. (6 John. 73.) On this ground, we think the sale by the executors cannot be supported.</p> <p>On another ground, the sale is void. ’ This is a naked authority to sell, not coupled with an interest, There is no. previous estate created and vested in the- executors as such. On the death of one executor, the power at common law would not survive. (Bergen & others v. Bennet, I Caines’ Cas. in Err. 16.)</p> <p>The 11th section of the statute concerning wills, (1 R. L. 366) provides for the case- when part of the executors refuse to act, and makes valid all sales made by executors who take charge of the administration of the will, It leavéa untouched the case of one of the executors dying before the sale. The statute recognizes the -distinction between lands devised to executors, to be sold, and a devise directing them to sell the lands. In the former case, no statute provision was necessary to sanction a sale by surviving executors. In the latter, the legislature left the power, in th.e event of the death of one of the executors, to the operation of the common law. But whether the power was with or without an interest, all the executors must join, if living. The statute Was passed to provide a remedy in case of refusal, to act.</p> <p>The defendant, however, having a sufficient conveyance from two of the sons of Moses Hallock, the plaintiff is entitled to recover three-fifths of the consideration money, only, and interest.</p>

<p>The endorsement and delivery of a promissory. no,te to a bank, on its request, is a sufficient consideration for an undertaking, on the part of the hank, to charge the endorser by a regular notice of nop-p.ayment; and if they neglect to do this, the holder or owner of the note, to, whom the promise is made, may maintain an action against them, and recover damages for the neglect.</p> <p>A count for such neglect would be, good as a count for a misfeasance, the receipt of the note, and neglect to perform the undertaking, being properly a mismanagement of the business undertaken The acceptance of the note by the bank may well be considered the first step in the execution of the contract, and no-other consideration is necessary.</p> <p>Objections, not taken in the supreme court, can not be taken in the court of errors.</p> <p>A corporation may make any contract, to. do an act at any place, if such contract be within the scope of its general powers.</p> <p>It seems, that a statute incorporating a bank is, in its nature, a public statute.</p> <p>The declaration stated that the bank of Utica had, pursuant to the act of-the legislature, passed the 10th day of April, 1815, established an office of discount anddeposit in Canandaigua. Held, a sufficient recital of the act in pleading', though it should be. considered a private act; especially after verdict.</p> <p>The declaration alleged that the defendants hud undertaken to charge the first endorser of notes payable on demand ; and set forth this first endorsement of the notes to the plaintiffs as having been made on a day certain—the endorsement and delivery of the notes, by the plaintiffs, to the defendants, about six months thereafter—and their undertaking at the latter time. Held sufficient, especially after verdict, though the declaration did not aver that the demand of payment was made within a reasonable time.</p> <p>What is a reasonable time, within Which a note payable on demand should be presented for payment, in order to charge an endorser, depends on all the facts of the case, to be prowd at the trial.</p> <p>The power of a verdict to cure formal defects in pleading, should be liberally applied.</p>

1822, Jacob Barker, the plaintiffin error, was indicted in the Court of General Sessions of the Peace, of the city and county of New York, for sending a challenge to, David Rogers, to fight a duel.

After the decision in the Steam-Boat Company v. Livingston, (1 Hopkins’ Ch. Rep» 151) June 14th, 1824, refusing an injunction against an indirect intercourse between the cities of New-York and Albany, to be carried on by the defendant’s steam-boat, the Olive Branch, by way of Nezo-Jersey, the plaintiffs, by leave of the Court below, upon petition presented, and an order made, June 28th, 1824, amended their bill, so as to charge the defendant, that, though on the first…