Volume 3 — Denio's New York Reports

<p>If a bankrupt petitioning for his discharge in the district court of the United States, give to a creditor who is opposing such discharge, money or property to withdraw his opposition, which he accepts and accordingly ceases to oppose, the transaction is not such a fraud as will avoid the discharge when pleaded to an action for an antecedent debt.</p>

P. Moulton sued Cornell before a justice of the peace by summons issued on the 14th of February, 1845, returnable on the 21st day of that month, and which the justice, as he stated in his return to the certiorari, delivered on thé day it was issued to a constable to be served. The summons was duly returned as having been served by copy on the 15th of the month. The plaintiff appeared on the return day but the defendant did not appear.

Error from the superior court of the city of New-York. Oharles Davis and others, composing the firm of Davis, Brooks & Co., sued Samuel Coddington, in the court below, and claimed to recover as endorsees of a promissory note for $10,000, dated December 31,1839, made by Thomas B. Coddington, payable to the order of Samuel Coddington, the defendant, thirty days after date, which was endorsed by the defendant.

The cause came into the mayor’s court upon appeal from a judgment rendered by a justice of the peace.

Trover for horses and other property, tried at the Otsego circuit in September, 1843, before Gribley, C. Judge.

Ejectment for an undivided half of a house and lot in Albany, tried at the Albany circuit in April, 1844, before Parker, C. Judge. M. Gill was seized of the premises at the time o his death, which took place on the 10th day of February, 1841. By his last will and testament executed four days before his death, he devised the premises in fee to his daughter Caroline Nestle, the wife of the defendant.

Ladue and Nelson, as overseers of the poor of Phillipstown, sued Nevin before a justice of the peace in debt, to recover a penalty of ,$25 for selling-strong or spirituous liquors in a less quantity than five gallons at a time without having a license therefor, contrary to 1 R. S. 680, § 15. The declaration was in the form allowed in declaring upon penal statutes. The defendant pleaded the general issue.

Case against the defendant, as sheriff of Montgomery county, for a false return to a ji.fa. issued upon a judgment in favor of the plaintiff in this suit, against R C. Davidson, tried at the Montgomery circuit in November, 1843, before Willard, C. Judge. Plea, not guilty. On the trial, the plaintiff gave in evidence an authenticated copy of a paper alleged to be the record of a judgment in this court in his favor, against Davidson. The placita was of July term, 1839.

<p>On demurrer to a surrejoinder, the plea being bad in substance, the plaintiff is entitled to judgment.</p> <p>By the true construction to the proviso in the act of 1842 exempting certain property from sale on execution, (Stat. 1842, p. 193, § 1,) property otherwise exempt is not protected against an execution on a judgment rendered for the purchase money of other exempt property than that in respect to which the exemption is claimed.</p>

Demurrer to pleas. The action was replevin for a quantity of machinery and blacksmith’s tools, which, as the declaration alleged, the defendants took in a certain building called the Selye building in the city of Rochester, and detained, &c. The defendant Selye avowed and the defendant Lunt acknowledged the taking of the goods as a distress for rent due to Selye as landlord from one Kenyon, upon the demise of the locus in quo,— a room in the Selye building, averring that…

Replevin, tried at the Warren circuit in October, 1843, oe fore Willard, C. Judge. On the trial the plaintiff called one Harris as a witness, who was objected to on the ground of interest, which the defendants undertook to prove.

Error from the Columbia common pleas, to review a judgment of that court affirming a judgment rendered by a justice of the peace.

<p>Where one of several joint obligors dies, his representatives are at law discharged from liability to the obligee. Per Jewett, J.</p> <p>But they are liable in equity, unless the deceased was a surety. Per Jewett, J.</p> <p>Equity will not treat a joint bond as though it were joint and several, for the purpose of allowing a creditor to pursue the representatives of a deceased co-obligor, where lie was a surety.</p> <p>Where two or more persons become sureties for another in a joint obligation, there is an implied agreement among the sureties, arising at the time when they execute the principal contract, that as between themselves they will contribute ratably towards discharging any liability which they may incur in consequence of becoming such sureties ; and such agreement is binding upon the representatives of any of them w- o may die.</p> <p>And the representatives of the deceased co-surety are liable to contribute towards reimbursing the surviving surety, though there was no default of performance of the obligation during the lifetime of the deceased.</p> <p>Accordingly, where B. and G. became sureties for S., as guardian of a minor, in a joint bond executed by the three, conditioned for the due execution of the trust by the guardian; and after the death of. G. the guardian committed a breach of his duty, on account of which the obligee recovered a judgment against S. and B., which B., the surviving surety, paid ; held, that B. could maintain an action against the executors of G. to recover a moiety of the amount so paid by him.</p> <p>Held also, that it was no objection to the action that B., after the judgment, paid voluntarily without waiting for execution to be issued against him.</p> <p>In such a case the plaintiff must declare specially, and cannot recover on a count for money paid to the defendants’ use, or to the use of their testator. Semble.</p> <p>And the declaration should count upon the mutual promises made by the co-sureties at the time of entering into the principal obligation.</p>

Assumpsit tried at the New-York circuit in February, 1844, before Kent, late C. Judge. The plaintiffs gave in evidence a promissory note with a guaranty written under it, signed by the defendant, in the following words: “New-York, 30th June, 1841. “ Sixty days after date the North American Trust and Banking Co. promise to pay to the order of Messrs.

P. Sibley sued Howard before a justice of the peace, for an injury alleged to have been done by the defendant to the plaintiff’s building, while the defendant occupied it as a tenant. There was a trial by jury on the first day of July, 1842, and the jury rendered a verdict for the defendant, which the justice immediately entered in his docket; but he made no further entry on that day.

Error, to the superior court of the city of New-York. Briggs sued Smith in the court below in covenant upon a sealed agreement dated June 27th, 1839, by which the plaintiff covenanted to perform all the carpenter’s work of three brick buildings which the defendant was then erecting “ in strict accordance and conformity in all respects with the specification for said buildings,” which was annexed, “ and in similar strict accordance and conformity with plans and drawings for…

P., to review a judgment of tha court reversing on certiorari, a judgment rendered by a justice of the peace. The suit before the justice was by Raynor v. Shove. Issue having been joined, it was tried by a jury who found a verdict for the defendant.

Replevin in the cepit for a quantity of pine saw-logs and lumber, tried before Gridley, C. Judge, at the Oswego circuit in December, 1838. The case was this: the defendant owned and occupied 30 acres of land in Albion, Oswego county: the land was sold under a judgment and execution against the defendant, and purchased by the plaintiff, on the 7th of March, ] 835.

Error from the superior court of the city of New-York, to review a judgment reversing one rendered by the marine court.

Miles sued Catharine Pulver in trover; and issue being joined, the cause was tried on an adjourned day by a jury summoned at the instance of the defendant.

<p>Indictment for selling lottery tickets, found in the Albany oyer and terminer, and sent into the mayor’s court, where the defendant demurred to the indictment. There were four counts, for selling a ticket, a quarter of a ticket, a paper purporting to be a quarter of a ticket, and for bartering a paper purporting to be a quarter of a ticket in a certain lottery not authorized by the laws of this state. None of the counts stated for what purpose the lottery was opened or made. The mayor’s court gave judgment for the defendant on the demurrer; and the .people bring error.</p>

The substance of the indictment, after giving time, place, &c. was, that the defendant unlawfully, maliciously and advisedly did set on foot a certain lottery, for the purpose of exposing certain money to abide the drawing in such lottery, he the said defendant being unauthorized &c., against the form of the statute, See.

The substance of the charge in the first count of the indictment was, that the defendant did vend, and sell, and furnish to divers persons unknown to the jurors aforesaid, tickets and parts of tickets, and papers purporting to be tickets and parts of tickets, of a certain lottery for the purpose of exposing money, (the name of which said lottery, and a more particular description of which, is unknown to the jurors aforesaid;) and which lottery was not expressly authorized by…

The defendant was indicted in the Albany oyer and terminer, and the indictment was sent into the mayor’s court.

P. Miner sued Lewis before a justice of the peace, and declared in trover for a cutter; and the case was this: In the fall of 1844, the parties each owned a cutter and bet the cutters one against the other on the result of the then approaching presidential election in Madison county. The bet was made at Morrisville, where the defendant’s cutter then was. The plaintiff’s cutter was at DeRuyter. The one which should lose was to deliver his cutter after the election.

P. Briggs & Canfield sued Peck before a justice, and the cause went to the C. P. by appeal. The declaration contained the money counts, and a special count. The case was this: In September, 1840, the defendant and one Smith Tompkins were at the store of the plaintiffs, and made a bet of $10 of a side on the then pending presidential election.

Action for libel, tried at the Otsego circuit, in September, 1844. The plaintiff proved that he usually went by the name of Nelson Washburn: that he lives in Butternuts; and was, and for several years past had been, a cattle drover: that the defendant resides at Oneonta, and is a student at law: and that Amos Winsor, the sheriff of the county, resides at Cooperstown.

P. Williams sued Larkin and Cole before a justice, and declared in trespass for taking and selling certain personal property.

P. Weaver sued Devendorf and two others before a justice of the peace and declared against them in case, for that being assessors of the town of Frankfort for the year 1843, they assessed the plaintiff’s taxable property at $1800, and in so doing refused to allow him the benefit of the exemption to which he was entitled as a minister of the gospel ; that they estimated his property at a higher rate than that of other taxable inhabitants of the town, and refused to make a…

The first six counts charged the offence to have been committed in a certain tow-boat and vessel called the “ Clinton,” lying and being in the first ward of the city of New-York, in the county of New-York. The seventh count was for a simple larceny. On the trial it turned out that the offence was committed in a vessel lying at the wharf in the North river in the third ward of the city.

Trover, tried at the Albany circuit in January, 1845, before Parker, C. Judge. The defendant, as sheriff of Albany county, seized and sold certain personal property by virtue of a fi. fa issued upon a judgment against James Christie, and delivered it to the purchaser. The plaintiff claimed that the property was partnership effects belonging to a firm composed of himself and Christie.

Assumpsit tried before Parker, C. Judge, at the Rensselaer circuit, in April, 1844, The plaintiffs sued for contribution, as co-sureties with the defendant, in the following promissory note:— “ $1000. One year after date we jointly and severally promise to pay to the order of Olive Bldridge one thousand dollars, for value received. Troy, March 31st, 1841, with interest. Schuyler & Akin. B. & A. Norton. Joseph H. Coons.” Schuyler & Akin were principal debtors.

<p>Covenant by the devisee of the lessor against an assignee of the lessee,, for rent and services in arrear. The defendant demurred to the second, third and fourth counts of the declaration. The second count stated that on the 24th day of September, 1798, at &c. Stephen Van Rensselaer in his lifetime by a certain indenture, &c. of which a proferí in curia is made, demised and granted in fee to Joseph Bradley, his heirs and assigns, “ certain premises with the appurtenances particularly described in the said last mentioned indenture, situate in the town of Bern, in the county of Albany“ yielding" and paying therefor,” annually on the second day of January in each year, to the lessor, his heirs and assigns, twenty-two and an half bushels of good clean merchantable winter wheat, and four fat fowls, to be delivered at the mansion house, &c. “ and performing’ one day’s service with carriage and horses” A covenant by the lessee to pay the rent, &c. is then set out, after which there is an averment as follows: “ that after the making of the said last mentioned indenture, and before the death of the said Stephen Van Rensselaer, to wit, on the first day of January, 1830, at the place aforesaid, all’ the right, title, and interest of the said' Joseph Bradley, óf, in and fo seventy acres of the Southerly side of the said demised premises of equal value by the- acre with the rest of the said demised premises with the appurtenances by assignment thereof legally came to afid vested iii the defendant.” Then follows an averment that the lessor by hi'S last will and testament, devised to' the plaintiff, his heirs and assigns,, “ the said rent and all the estate of him the said” lessor, of, in and to the demised premises, and that the" testator died seized on the 26th day of January, 1839, whereby the plaintiff became seized of the rent, with general averments of performance by the lessor and by the plaintiff and of non-performance by the defendant; and the statement of a breach in these words, “ He the said plaintiff in fact says that after the making of the said indenture and after the death Of the said Stephen Van Rensselaer deceased, and after the defendant became assignee as aforesaid of the said seventy acres part of the said premises, to wit, on the second day of January, now last past, forty-five bushels of good clean merchantable winter wheat, eight fat fowls, and two days’ service with carriage and horses, Of the Value of one hundred dollars, for the tent of that part and proportion of the said premises of which the defendant became assignee as aforesaid, and which had accrued and become due after the death of the said Stephen Van Rensselaer, and after the defendant became assignee as aforesaid were and are in arrear and unpaid to the plaintiff.” “ which said forty-five bushels [repeating the rent and services,] or any part thereof the defendant has not paid to the plaintiff, but to do so has wholly refused and still refuses, contrary,” &c.</p> <p>The third count varies from the second in the statement of the extent of the defendant’s interest as assignee. In this respect it avers “ that on &c., all the estate, right, title and interest of the said Joseph Bradley, of, in and to the said demised premises with the appurtenances, by assignment thereof legally came to and vested in the defendant, and which said premises are now in the possession of the said defendant; saving and excepting thirty-one and a half acres parcel thereof heretofore sold to one Calvin Jones, and sixty acres other parcel thereof heretofore sold to Elam Bradley.” In the averment of the rent and services in. arrear, for the non-payment of which the breach is assigned, it is alleged that after the defendant became assignee as aforesaid; to wit, on &c. ninety bushels of wheat &c. “ of the rent for the said premises,” for four years ending &c. had accrued and become due and was still in arrear and unpaid to the plaintiff.</p> <p>The fourth cqunt sets out the defendant’s interest as assignee as follows: “ that after the making of the said last mentioned indenture and before the death of the said Stephen Van Rensselaer, to wit, on &c., “all the right, title and interest of the said. Joseph Bradley, the party of the second part to the said indenture, of, in and to the said demised premises or some part thereof, with the appurtenances, by assignment thereof, legally came to. and vested in the defendant.” In other respects the three counts are substantially alike.</p> <p>The objections relied on by the defendant’s counsel and noticed in the opinion of the court, are specified as causes of demurrer. The plaintiff joined in demurrer.</p>

Assumpsit on a promissory note by endorsee against endorser. The note was made by M. Snyder, payable to the order of the defendant for $177 in one year from date, no place of payment being mentioned, and was dated at Troy, October 15th, 1839. On the trial, the endorsement of the note by the defendant and also by G. P. Morris was admitted.

Debt on judgment. Plea nil debet, with notice of special matter. Issue tried at the Jefferson circuit in June, 1844, before Grídley, C. Judge. The plaintiff produced a record of a judgment in this court in his favor against the defendants, for $424,09, and rested.

The action was upon a sealed note made.by the intestate payable to the plaintiff. The demand was presented to the defendant pursuant to' a notice published by him as administrator, but he refused to pay An offer to refer according to the statute was duly made and declined by the defendant. This action was then brought and the plaintiff recovered $645,73, the cause having been tried by referees.

<p>Motion to set aside a fi.fa. issued on the same day on which judgment in scire facias quare executionem non was perfected, the defendants’ counsel insisting that the plaintiff should have, waited thirty days, as required by the act of 1840.</p>

Motion by the plaintiff to set aside an inquest taken by the defendants at the last circuit in New-York. The action was replevin, and the defendants gave notice of trial and placed the cause on the calendar, and no affidavit of merits being filed by the plaintiff, they moved the cause out of its order and took an inquest. The plaintiff had not given notice of trial.

Motion by plaintiffs for leave to discontinue without costs. The action was for the balance of an account for goods sold by the intestate, who died in April, 1845; and the suit was commenced in February, 1846. On the 17th of that month the defendant’s attorney served a copy of a plea setting up a discharge under the bankrupt act, granted in November, 1843.

<p>Where the attorneys live in different places and issue is joined too late for the service of notice of trial by mail, though in season for personal service, the defendant will not be entitled to judgment as in case of nonsuit for not noticing and bringing the cause to trial</p> <p>But a party moving to set aside proceedings for irregularity, or to be relieved from a regular default, must if practicable, and if necessary to enable him to move at the next term, make personal service of the papers. Per Bronson, C. J.</p>

<p>In proceedings by attachment against absconding, concealed and non-resident debtors, there is no time prescribed within which the notice required by the statute must be published after the issuing and service of the attachment.</p> <p>And where the notice was published two years and seven months after the issuing of an attachment upon which the debtor’s property was immediately seized; held that the officer had not lost his jurisdiction of the proceeding by the delay, and that an appointment of trustees made at a proper time after such publication was valid.</p> <p>The appointment of trustees in such a proceeding, where the officer had acquired jurisdiction to issue the attachment, precludes the debtor from alleging that jurisdiction had been lost by a subsequent irregularity.</p>

The appellants, in January, 1846, requested the clerk of Niagara county to examine and certify the title to and the incumbrances upon a lot of land lying in that county. He accordingly made a search and certificate.

<p>Where the rate of compensation for attorneys and counsellors is changed by the legislature during the progress of a suit, the costs of such suit are to be taxed according to the statute in force at its termination.</p> <p>Accordingly held, that where a suit commenced in March, 1840, was settled in 1845, by a stipulation giving the plaintiff the taxable costs, they ought to be taxed according to the fee bills in the acts of 1840 and 1844 which were then in force.</p>

H. Bennett, on behalf of himself and others, as relators, moved for a mandamus against the judges of the court of common pleas of Chenango county, to compel them, among other things, to restore the judgment for costs which was inserted in the judgment record in a cause in that court between the relators as plaintiffs, and R. B. Burch, defendant, which had been stricken out on motion.

<p>The application to compel the plaintiff to shew cause of action must be made in the first instance to a judge or commissioner, and not to the court.</p> <p>The party dissatisfied with the determination of the judge can bring the matter before the court only by appeal.</p>

Motion to quash a writ of error, issued to the superior court of the city of New-York. Valarino obtained judgment in the court below against Thompson and Mann, in assumpsit. Mann was not served with process, and did not appear, and judgment was entered against both, pursuant to the statute relating to joint, debtors.

I. Harris, on behalf of Joel Rathbone, moved 'for a perpetual stay of execution in this cause, in the hands of the sheriff of Erie county, and that the judgment be cancelled of record. The judgment was rendered September 3d, 1842, on a note made by Abbot to the order of W. Hodge, and endorsed by him and W. Hodge, Jr. for the accommodation of the maker.

P. Van Keuren, Delamater and Constable, sued Johnston in a justice’s court, and declared as superintendents of the poor of Ulster county, against the defendant, late keeper of the Ulster county poor house, in trover, for taking and converting certain articles of furniture, being property belonging to the county. The defendant pleaded not guilty. The plaintiffs recovered before the justice, and the defendant appealed.

Whiley & Whiley sued Sherman and the other defendants in error before a justice of the peace, in debt on a bond in the penal sum of $185.

Motion by the plaintiffs to set aside a report of referees in iavor of the defendants. Held: that the original notes being exchange notes, each party was hound to pay and take up their own notes : that no cause of action could accrue ¡to the plaintiffs for-money-paid on their 'own notes: that their action should-have been on the notes of -the-defendants. 'On these and other grounds the referees reported in favor of the…

The defendant in error and one R. R. Seymour were indicted in the sessions for an offence against the statute (2 R. S. 677, § 53) for obtaining money and property by false pretences.

The defendant was indicted for a violation of the twenty-eighth section of the article of the revised statutes concerning raffling and lotteries.

<p>Error-from the New-York common pleas. Simers sued Saltus in the court below in covenant, for the non-payment of rent due upon a demise of a house in Cherry-street, for two quarters ending the 30th of April, 1841. The plaintiff, on the 26th February, 1840, leased the, premises to John Shine for one year, commencing on the first day-of May ensuing, for $550 rent, payable quarterly, and the defendant executed an agreement at the foot of the lease by which, as Shine’s surety, he covenanted that the rent should be duly paid. Plea, nonest factum, with notice , of the defence disclosed bythe evidencé.</p> <p>On the trial, the lease and covenant were read in evidence. The defendant .proved the following facts: The plaintiff, in the year 1834, had mortgaged the premises for $3000 to one Force, and the money being due and unpaid the latter,-in 1838, filed a bill of foreclosure in chancery against the plaintiff. A decree for foreclosure and sale was entered in January, 1839, by virtue of which the premises were sold on the 18th day of September, 1840, .to-one P. Gleason, who received the master’s deed on the 15th day of October following. Gleason showed his deed to Shine and desired him to continue in possession until the end of the year and pay the rent to him, but he refused to do so, unless Gleason would agree to lease him the premises another year, which the latter declined. Shine left the premises on the last of October—the end of the second quarter, having paid rent up to that time, and offered the key to Gleason; but several persons to whom Shine had rented separate rooms remained in possession. It appeared that the plaintiff had assigned the lease together with the defendant’s covenant, to Gleason, and that the plaintiff’s attorney had informed the defendant before he left the premises that the plaintiff and Gleason had agreed that the defendant might remain in possession till the end of his term on paying the rent to Gleason. The plaintiff’s counsel insisted that inasmuch as Shine had not been evicted and had not attorned to the purchaser, the defendant could not set up the outstanding title as a defence to the action. The court however held that the matters proved amounted to a defence, and directed the jury to find for the defendant. There was a verdict and judgment for the defendant, upon which the plaintiff brought error.</p>

The defendant was indicted for grand larceny in stealing bank notes, the property of William McChestney. On the trial, in January, 1845, the district attorney offered in evidence the deposition of McChestney, taken de bene esse, on the 5th day of December preceding, under the eleventh section of the act for the establishment and, regulation of the police of the city of New-York.

P. Griffith sued Wells before a justice of the peace in December, 1843, and declared in assumpsit for two half gallons of whiskey and two glasses of beer, sold and delivered to the defendant, of the value of three shillings and six pence. The plaintiff, who was a grocer, proved his declaration. The defence was, that the plaintiff sold the liquor without having a license to sell spirituous liquors.

Common law certiorari to a justice of the peace to review a judgment rendered by him in favor of Church against the plaintiffs in error. It appeared by the justice’s return, that the suit was commenced by attachment issued at the instance of Church, on the allegation that the defendants had departed from the county with intent to defraud their creditors; and that the recovery was for $46,61, on an ex parte trial, the defendants not appearing or pleading.

<p>The several statutes enabling aliens to take and hold real estate, which were passed prior to the 21st day of April, 1825, were so far modified by the act passed on that day, (Stat. 1825, p. 427,) that no alien could subsequently take land by purchase, without complying with the provisions of that act.</p> <p>Accordingly held that an alien widow, whose husband, being a citizen, purchased lands during their coverture in 1833, and died in 1838, was not entitled to dower within the principle of Sutliff v. Forgey, (1 Cowen, 89.)</p>

Case, tried at the Rensselaer circuit in November, 1845, before Parker, C. Judge. The declaration was for negligence in removing earth from a hill called Mount Ida, belonging to the defendant, adjacent to several lots owned by the plaintiff, by means of which, portions of the hill were caused to slide down upon the plaintiff’s lots, and thereby greatly injured the same.

Assumpsit tried before Kent, C. Judge, at the New-York circuit, in February, 1844. The plaintiff sued for contribution, and the case was this: One Henry Castro imported goods, and on the 17th of October, 1822, he executed two bonds to the United States for the payment of the duties, in which bonds the testator and the defendant were the sureties of Castro. The parties bound themselves jointly and severally.

<p>Replevin for taking two mahogany book cases, the property of the plaintiff. Plea, actio non, &c. because they say, that the said goods and chattels in the said declaration mentioned at the said time when &c. were not the property of the said plaintiff in manner and form &c., concluding to the country, and pray ing a return of the goods. Special demurrer and joinder.</p>

<p>Error to the Warren common pleas. Earl sued Spooner and Dixon before a justice of the peace and recovered $2, besides costs, which judgment the common pleas upon certiorari, prosecuted by the plaintiff\ affirmed; whereupon the plaintiff brought error to this court. The action was covenant, on a bond executed by the defendants in the penalty of f 100, given to procure the issuing of an attachment before a justice in favor of Spooner against the plaintiff, which was conditioned pursuant to the statute, (2 R. S. 230, § 29,) to be void if (among other things) Spooner should pay the defendant (the plaintiff in this suit) all damages and costs which he might sustain by rea son of the issuing of the attachment in case Spooner should fail to recover judgment in the attachment suit. An attachment was accordingly issued upon which certain chattels of the plaintiff, worth about thirty dollars, were seized by a constable; who took them into his possession and locked them up, and returned the attachment. On the return day the parties appeared before the justice, when the plaintiff in that suit (Spooner) was nonsuited, upon what ground is not stated in the return. The plaintiff, in the suit on the bond, sought to recover the value of the property attached, and proved that it had never been returned. On the part of the defendants it was permitted to be shown, though objected to by the plaintiff, that immediately after the judgment of nonsuit, the same justice issued another attachment in favor of Spooner against the plaintiff, by virtue of which the same constable attached the same property, and, judgment having been rendered for the plaintiff in this second attachment suit, sold it on the execution.</p>

Ejectment for a lot in the 12th ward of the city of New-York, tried before Edmonds, C. Judge, in May, 1845. The plaintiff claimed to recover under a lease from the corporation of the city of New-York, conveying to him a term of 800 years in the land, on a sale for the non-payment óf an assessment for setting the curb and gutter stones in 125th street, between the 3d and 4th avenues.

Assumpsit tried at the Albany circuit in April, 1845, before Parker, C. Judge. The action was on a policy, dated July 22, 1836, by which the defendants insured the pláintiff for five years, against loss or damage by fire, to the amount of $600 on his dwelling house, No. 34 Van Schaack-street, in the city of Albany, and $66 on his woodhouse in the rear of the dwelling.

Judgment against the defendants was entered in this court on the 10th of February, 1842, for §60,000 of debt, by virtue of a bond and warrant of attorney executed by the defendants to the plaintiffs on the 16th of April, 1841.

<p>Costs. The cause was tried in March, 1839, when the plaintiff obtained a verdict. The defendant made a case, and obtained a new trial, on payment of costs ; and he paid the plaintiff’s costs of the circuit at which the cause was tried, and the costs of opposing the motion for a new trial. The defendant afterwards obtained a judgment as in case of nonsuit, and in his bill of costs charged and had taxed all his own costs on the application for a new trial, amounting to $107,81.</p>

Motion by defendants for re-taxation of costs. The plaintiffs recovered on a hearing before referees. The first meeting of the referees was held pursuant to notice, October 14,1844, when the referees were sworn, and adjourned to the 5th of December; on which day the hearing fell through in consequence of the absence of one of the referees. The plaintiffs again noticed for hearing on the 24th January, 1845, when the hearing again failed for the same cause.

Costs against executors. In January, 1832, the plaintiff and the testator became sureties in a bond that one Smith should faithfully perform his trust as a general guardian for one Fuller, an infant. In August, 1834, the testator died, and the defendants soon afterwards obtained letters testamentary, and gave the notice provided for by the statute requiring all persons having claims to present the same within six months. The six months expired in 1835.

Judgment for the plaintiffs by virtue of a bond and warrant of attorney, with a consent that execution might issue immediately, was perfected on the 16th of May last. The bond and warrant were executed, and the papers for the pui’pose of entering the judgment were prepared and the record was signed on the 15th of May.

Bail in error. Phelps brought a writ of error to the Montgomery C. P., to reverse a judgment which the church had recovered against him of $20. He gave bond in the penalty of $250, and had an order staying proceedings on the judgment. The defendants in error excepted to the sureties. The plaintiff thereupon executed a new bond in the penalty of $50, with new sureties, who justified. A copy of the affidavit of justification was served on the defendants’ attorney.

<p>The plaintiff’s attorney is not liable for the defendant’s eosts¡ where the plaintiff removed from the state pending the suit, but only where he was a non-resident when it was commenced.</p>

Debt on bond, in the penal sum of $82,64, conditioned that Rogers, who had been committed to the jail limits in the city of New-York, on a precept for the sum of $41,32, should remain a true and faithful prisoner, &c. The plaintiffs for whose benefit the precept was issued, took an assignment of the bond and commenced this action in January, 1845, and in their declaration alleged for a breach of the condition of the bond that Rogers did not remain a true and faithful…

<p>A defendant in replevin who excepts to the sureties taken by the sheriff need not enter the exception on the bond or on the writ, but may file it in the clerk’s office.</p>

<p>A plea puis darrein continuance should be pleaded on the first day of the next term after the new matter of defence arose.</p> <p>But if a circuit intervenes before the term, it must be pleaded there in order to prevent a trial.</p> <p>When pleaded seasonably it is matter of right and cannot be rejected either at the circuit or the term.</p> <p>When offered out of time the plaintiff may refuse to receive it and the judge at the circuit may disregard it.</p> <p>Where the defendant has allowed the time for putting in such a plea to elapse, though he may be relieved upon terms, he will not after a delay of three years be permitted to put in the plea nunc pro tunc.</p> <p>And where the defendant having obtained a discharge under the bankrupt act after issue joined, refused to allow the plaintiff to discontinue without costs and successfully resisted a motion made by the plaintiff for that purpose, and then after considerable delay applied for leave to plead his discharge puis darrein continuance ; held, that he had elected to abide by his first defence and was not entitled to relief.</p>

Motion on behalf of A. Munson, the landlord of the defendant, for a rule requiring the sheriff of Oneida to pay to the landlord two quarters’ rent of premises demised to the defendant and occupied by him, out of money which the sheriff had made on a sale of property of the defendant on the demised premiseá, by virtue of a Ji.fa. in this case. The lease to the defendant was made in 1841, the rent payable quarterly.

Assumpsit, tried before Edmonds, C. Judge, at the New-York circuit in November, 1845. The action was upon a written agreement dated March 2d, 1841, signed by the plaintiff and by James Gibb & Co., which is set forth in the report of this case, when formerly before the court, in 1 Denio, 337. It will be seen from the case as reported, that the principal question upon the first trial was, whether the defendant Eckart was a member of the firm of James Gibb &.

Error from the Albany common pleas. McCormick sued Blunt in the justice’s court of the city of Albany, in August, 1845, and declared in case, for that whereas the defendant demised to the plaintiff certain premises in Albany for one year from May 1, 1845, for the rent of $300, and afterwards and during the term erected certain buildings adjoining the demised premises, which shut out the light from the windows and doors of the demised premises, to the plaintiff’s damage &c.…

Motion to set aside the report of referees, and also in arrest of judgment. The action was covenant for the non-payment of rent and for the breach of covenants in the lease, brought by the grantees of the reversion against the defendant, who, by a separate instrument, became surety for the lessee.

Declaration on a policy of insurance against fire. The first count was on a policy dated December 1, 1834, by which the defendants insured the plaintiffs for one year against loss or damage -by fire to the amount of $13,000, as follows; $8000 on their brewery in the city of Albany; and $5000 on the stock and utensils therein. There were several renewals of the policy the last of which was on the first day of February, 1842, for one year, and for the sum of $10,000.

Case, for overflowing the plaintiff’s lands, commenced August 10th, 1838, and tried at the Steuben circuit in October, 1845, before Dayton, C. Judge. The plaintiff was the owner of land situated on the margin of the inlet of the Crooked Lake and along the adjacent shores of the lake, a portion of which he purchased, and took possession of in the year 1830.

Debt on a judgment in this court of May term, 1823, for §6790,26. Plea, that the right of action of the plaintiff upon the said judgment accrued more than twenty years before the commencement of this suit, to wit, on the 9th day of July, 1823, concluding with a verification. Demurrer and joinder.

P. to review a judgment of that court reversing on certiorari a judgment in favor of Delamater against Pierce, rendered before a justice of the peace. The action before the justice was assumpsit to recover $84,12, as the balance of accounts between the parties.

P. McDoel recovered a judgment ' against Cook & Pierce before a justice of the peace, which the common pleas affirmed on 'certiorari. The suit was commenced by attachment, and the return of the constable stated that he had attached certain property which he described and had made an inventory, and that he served a copy of the attachment and of the inventory on the defendant Cook, on a day named. Nothing was said of any service upon the other defendant.

P. Clark sued Denure before a justice and declared for fraud in the sale of a pair of horses. The defendant pleaded the general issue. On the trial, which was by jury, a verdict was rendered in favor of the plaintiff for $34, who immediately remitted the excess beyond $24,99, for which sum the justice rendered judgment, with costs.

Debt on bond, tried at the Rensselaer circuit in May, 1846, before Parker, C. Judge. The declaration set forth abond executed by the defendant and Henry Hunt, dated April 6th, 1842, in the penalty of $1000.

Case, tried at the Oswego circuit, in June, 1844, before Gridley, C. Judge. The declaration sets out the recovery in this court of a judgment by the plaintiffs against Baldwin &, Neilson, and the delivery of a ji. fa. thereon to the defendant as sheriff of Oswego county.

Ejectment for a farm of about ninety acres of land, situated in Stillwater, Saratoga county, tried at the circuit in that county before Willard, C. Judge, in May, 1844. Philip Schuyler, being seized in fee of the premises, on the 9th day of May, 1801, executed a lease in fee to Frederick Coonley, at an annual rent of 10| pence per acre.

Motion to set aside the report of a sole referee. The action was assumpsit on the money counts. The principal demand, and the only one which the referee found to be supported by the evidence, was for the sum of six hundred dollars advanced by the plaintiff at the defendant’s request, which the plaintiff paid to a stakeholder as a bet upon the result of a horse face.

P. Kathern and Doolittle sued Kast before a justice of the peace to recover the amount of an account which accrued in 1843 and 1844, amounting to $32,81, which was proved on the trial. The defendant offered - to set off the amount of a note made by the plaintiffs in February, 1844, payable to A. Hill or bearer, for $37, with interest.

Slander tried before Parker, C. Judge, at-the.-Albany .circuit in-April, 1844.- The-declaration alleged that, the-: defendant had charged the-plain tiff’s-wife with incontinence-before her marriage with,the plaintiff, and set forth special damages; namely, .that in .consequence. of the speaking of the words the. wife of the plaintiff had become sick and disabled, whereby the plaintiff had lost her services ; and also, that by means thereof, one Christopher Keenholts, who had…

Motion in arrest of judgment. The declaration contained six counts for verbal slander. Not guilty was pleaded, and the plaintiff had a verdict. The plaintiff’s counsel, in opposing this .motion, produced the certificate of the circuit judge, from which it appeared that no evidence was given upon the third and fifth counts of the declaration,', and that the evidence applicable, to the fourth count was withdrawn before the cause was submitted to the jury.

P. L. Brown, in 1841, sued Wilbur in the court below, in a special action on the case for unlawfully-interfering with and depriving him of his right to the use of certain water to which he was entitled, to propel a saw mill and oil mill owned by him.' The second count in the declaration set forth that the plaintiff was possessed of the saw mill and oil mill, situated near to a certain stream or water course there, and also to so much of the water of said stream and of the…

Demurrer to declaration. The plaintiff declared in covenant upon a contract for the sale of lands and personal property, the plaintiff being the vendee. The contract was dated February 22d, 1841.

<p>The hiring of a person of full age, for wages, by the year, creates the relation of master and servant between the parties, and will enable the employer to maintain case, against one who imprisons the person employed, for the loss of his service.</p> <p>The officers of a bank cannot justify the imprisonment of a person, on the ground that he remained in their office after the usual time for shutting the same, and was detained by their locking the outer door, though he knew the hour at which the bank was usually closed.</p>

Hall, an infant, by his next friend, sued L. &. J. Whitmarsh for work and labor. It was proved that the plaintiff had worked for the defendants half a month under a contract to labor for them for a certain longer period of time, and had left without cause.

Assumpsit, tried at the New-York circuit in July, 1844, before Kent, late 0. Judge. Tile- plaintiff claimed to recover upon the guaranty of the defendant of the payment of a promissory note made by one Truschell, dated March 1,1839, for $500, payable to the plaintiff immediately; and gave evidence tending to sustain the action.

Motion to set aside the report of referees. The action was debt against a constable for neglecting to return an execution issued by a justice of the peace in favor of the plaintiff, brought pursuant to the provisions of 2 R. S. 253, § 159. After issue joined, the cause was referred to referees, who made a report in .favor of the plaintiff, which the defendant moved to set aside on the merits.

On error from the supreme court. The district attorney of the city and county of New-York brought an action of debt in the court below, in the name of the people, against Robert H. Morris, the plaintiff in error, for a penalty of $250, imposed by the statute, (1 R. S. 368, § 16,) for refusing to perform his duty as a member of the board of supervisors of the city of New-York, “ in this to wit: in refusing to audit and allow the account of James Lynch, one of the associate…

On error from the supreme court. Hargous sued Ablon & Boyd in the superior court of the city of New-York, and was nonsuited on the trial. He brought error to the supreme court, where the judgment of the superior court was affirmed, as will be seen from the report of the case in that court, in 5 Hill, 472.

<p>On error to the supreme court. Luer sued Cort, Waydell and Underhill, in the New-York common pleas, in assumpsit. Way-dell and Underhill pleaded non-assumpsit, and Cort suffered judgment by default. On the trial it appeared that the defendants had been copartners under the name of N. Cort & Co. for about one year, ending in January, 1838, at which time they dissolved and made an assignment to trustees for the benefit of their creditors. The trustees however did not act: but Cort, under some arrangement which was not distincly shown, was left in possession of the effects of the concern and acted m the adjustment of its affairs. During the existence of the copartnership, the plaintiff lent the firm $1700, for which he took their note payable 7th February, 1838. When this note became due, which was after the dissolution, the plaintiff called upon Cort at the store where the firm had transacted its business, and a settlement was made of the amount due on the note; and Cort gave the plaintiff his own notes, two for $500 each, at nine months, and one for $566, at four months, payable to the plaintiff or order, and—as the witness who proved the facts said he believed—some other person’s note, and some money, to the amount of over $100, as he thought, which three notes of Cort, the note of the third person, (the amount or particulars of which the witness could not state,) and the money made up the amount due the plaintiff; and the plaintiff then gave up to Cort the note of' the firm above mentioned. An entry was made upon the books of the firm, crediting Cort with the amount of the plaintiff’s debt, as though paid by him individually. These notes given by Cort were renewed from titile to time, and payments were made upon them until August, 1840, when the amount was reduced to $500, and Cort then, at the plaintiff’s instance, gave him a note signed with the name of the firm, payable February 7th, 1841, for the amount, which was produced at the trial. There was evidence tending to show that the defendant Waydell was acquainted with the fact that the plaintiff had taken the notes of Cort for his debt.</p> <p>Upon these facts the counsel for Waydell and Underhill requested the court to charge the jury that they must determine, from the testimony, whether the plaintiff, after the dissolution of the firm, took the individual notes of N. Cort, the note of a third party and a sum of money in payment of the partnership debt, and gave up at the same time the copartnership note; and if he did so, that such acceptance of said notes and money, without reservation of his claim on the other partners, was a discharge arid release of the other partners, Waydell and Underhill. The court declined so to charge, but on the contrary instructed the jury that, the settlement between the plaintiff and Oort could not operate to release the defendants Waydell and Underhill, except so far as the individual notes of Cort were afterwards paid; that the jury must disregard such settlement, and that the plaintiff was entitled to go back to the original loan and recover of all the copartners the balance remaining unpaid. The defendants excepted, and the jury returned a verdict in accordance with the charge, upon which the. court rendered judgment. The defendants Waydell and Underhill brought error to the suprerhe court, where the judgment of the common pleas was affirmed. For a report of the case, see 5 Hill, 448. The cause was argued here by</p>

<p>On error from the supreme court. J. R. & H. Mahler sued Henschel in the superior court of the city of New-York in assumpsit, and sought to recover as the endorsees, against the defendant as acceptor, of a bill of exchange. There was a verdict and judgment for the plaintiffs, which was affirmed on error in the supreme court, upon which the defendant brought error here. The facts appearing on the trial are stated in the opinion of the chancellor, and, together with the opinion given in the supreme court, may be found in the report of the case in 3 Hill, 132.</p>

Oh error from the supreme court. The defendant in error as administratrix of John G. Smith deceased, brought assumpsit for goods sold by her intestate, against the plaintiffs in error; and upon non-assumpsit pleaded, the jury found a special verdict, upon which the court below rendered judgment for the plaintiff. A statement of the facts found by the verdict together with the opinion of the court may be seen in the report of the case in 6 Hill, 479.

On error from the supreme court to réview a judgment of that court affirming one rendered by the court of common pleas of Putnam county. The facts of the case and the reasons of the judges are stated, ante, p. 43.

On error from the supreme court. Whitney sued Hugh Mc-Keon in the court below in debt. The first count of the deck' ration set out a lease under seal of a lot of ground for a term of years from the plaintiff to James Eoss and Edward McCormick, reserving rent, and alleged, in the usual form, that the estate of the lessees had come to and vested in the defendant and. that rent had subsequently accrued. There were also counts for use and occupation. Plea, nil debet.

On error from the-.supreme ..court.-John E. Areson prosecuted Benjamin E. Areson-.iffthe. court below in ejectment, far one undivided fifth part of.-' certain lands in Flatbush, in tho county of Queens. The jury-found a special verdict, and the court ..'rendered judgment for- the- defendant.

On error from the supreme court. Wilson and the other defendants in error brought replevin against Stevens, in the superior court of the city of New-York, for a quantity of feathers. Verdict and judgment for the plaintiffs; which judgment was affirmed on error in the supreme court. For a statement of the facts and the opinion of the court, see 6 Hill, 512.

On error from the supreme court, where Schoonmaker brought ejectment against Sheely, and judgment was rendered for the defendant. The opinion given in the court below will be found in 3 Hill, 165, where the facts are stated; and they are also briefly referred to in the opinion of the chancellor in this court.

<p>A letter in these words: “ I hereby agree to guaranty to you the payment of such an amount of goods, at a credit of one year, interest after six months, not excecding §500, as you may credit to J. H. P.” is not a continuing guaranty, but is exhausted by a single purchase to the amount mentioned.</p> <p>Where the defendant, who was already liable to the plaintiffs as a guarantor for goods sold to P. wrote to them that P. desired a further credit, and that he was willing to continue his surety, and inquired whether upon payment of a part of the existing debt they would give further time for the balance, and would credit P. with a further amount of goods, and added that if the answer was favorable, P. would call on the plaintiffs, and if otherwise, the writer would arrange the existing indebtedness ; and P. purchased other goods of the plaintiffs, without any answer having been given to the defendant’s letter ; held that the letter was only a proposition not binding without acceptance, and consequently that the defendant was not liable for the last mentioned purchase.</p> <p>If a principal debtor give the creditor his note for the debt, payable one day after date, the surety is thereby discharged.</p> <p>And it is not competent for the creditor to prove that the note was intended as a mere memorandum and was not to operate as an extension of the credit.</p>

On error from the supreme court. Gallup brought ejectmen m the court below, for a lot of land in the county of Erie, and the cause was tried at the circuit court held for that county in November, 1844.

On error from the supreme court. Upon the first trial of this 'cause the plaintiffs had a verdict which was set aside by the court upon exceptions taken by the defendant. The facts which appeared upon that trial, together with the opinion of the court, may be seen in the report of the cáse in 5 Hill, 432.

<p>On error from the supreme court, to review a judgment affirming one rendered by the court of common pleas of the city and county of New-York. In the last mentioned court, Dormedy sued Kanouse and Whigam in debt on a bond executed by the defendants, pursuant to 2 R. S. 12, §§ 55, 56, for-the purpose of discharging an attachment which had been issued at the instance of the plaintiff, against Kanouse, as an absent debtor, Whigam executing the bond as surety. 'It was in the penalty of $240, conditioned for the payment to each attaching creditor of “ the amount justly due by such debtor to him at the time when he became an attaching creditor,” &c. The declaration set forth the proceedings to obtain the attachment, and averred that Kanouse was a resident of the state of New Jersey, and that the plaintiff had a demand against him of one hundred and twenty dollars and upwards, over and above all discounts, arising upon contract, for money lent and work and labor done and performed in Jersey City, in the state of New Jersey. It stated that the associate judge, to whom the application was made, issued his warrant of attachment to the sheriff of the city and county of New-York, commanding him to attach the property of Kanouse, &c., and directed the publication of notices according to the statute; and that such proceedings were thereupon had, that afterwards, on the day of the date of the bond, Kanouse applied to the judge to discharge the warrant, and for that purpose he and Whigam executed the bond, and the j'udge thereupon made an order discharging the warrant; that Kanouse, at the time the application for the attachment was made, was justly indebted to the plaintiff in one hundred and twenty dollars, for work, labor, &c. Breach, that the defendants have not paid the plaintiff the amount of the aforesaid indebtedness. Pleas. 1. Non est factum; 2. That Kanouse was not indebted to the plaintiff. The defendants also gave notice that they would prove on the trial that the plaintiff (as well as Kanouse) was a resident of the state of New Jersey when the attachment was applied for, and during the pendency of the proceedings thereon, and that the indebtedness of the plaintiff accrued in that state.</p> <p>On the trial in the common pleas, the execution of the bond was proved, and both parties gave evidence touching the alleged indebtedness of Kanouse to the plaintiff. Before the cause was submitted to the jury, the defendants’ counsel requested the court to charge, that there being no evidence, and no averment in the declaration, that the plaintiff—the attaching creditor—was a resident of this state, and it appearing that the contract out of which the indebtedness arose was made in New Jersey, tha plaintiff was not entitled to recover. The court refused to charge as requested, but submitted to the jury the evidence relating to the existence of the indebtedness, advising them to find for the plaintiff if such indebtedness were proved. The defendants excepted, and the jury gave a verdict for the plaintiff, upon which the court rendered judgment, which, on error brought by the defendants, was affirmed by the supreme court. The defendants then brought error to this court.</p>

<p>Where an agent having a sum of money in his hands belonging to his principal, is authorized to remit it by purchasing a bill of exchange, he should purchase the bill with such money, and not by using his own credit.</p> <p>In February, 1837, S., a resident of New-York, received a sum of money as the agent of H. who resided in Liverpool, and was authorized to remit it by purchasing and forwarding a bill of exchange. S. thereupon purchased a bill upon his own credit at a premium of 11 i per cent, which he forwarded to H. at 10 per cent, that being the rate at which similar bills were then selling for cash. H. kept the bill until November, 1839, having in the mean time made various unsuccessful efforts to collect it, and was then first informed that it had not been purchased with his money. He immediately wrote to S. notifying him that the bill would not be regarded as payment, and shortly afterwards brought an action against him for money had and received. Held that the action was maintainable.</p> <p>An agent cannot act so as to bind his principal even in matters touching his agency where he has an adverse interest in himself. Per Walworth, Chancellor.</p>

On error from the supreme court. The action was debt to recover a sum of money due to the plaintiffs from the Rossie Galena Company, the stockholders being jointly and severally liable for such debts by the ninth section of the act of incorporation. (Stat. 1837, p. 446.) The defendant pleaded that the suit was not commenced “ within three years next after the cause of action accrued.” Demurrer and joinder.

On error from the supreme court, to review a decision of that court reversing a judgment of the court of common pleas of the county of Monroe. The action in the court below was replevin, for eleven double sash doors.

On error from the supreme court. Doughty sued Hope in the court below in ejectment for a lot of land in the city of New-York; and the cause was tried before Edmonds, C. Judge, at the New-York circuit in October, 1846.

On error from the supreme court to review a judgment of that court affirming a judgment of the superior court of the city of New-York.

The complainants being judgment creditors of C. and C. E. Wardell, on the 5th of November, 1846, called on and requested them to apply certain notes and evidences of debt of which they were possessed to the payment of the judgment, which they refused to do.

Appeal, by the complainant, from an interlocutory order made in this cause, in equity, at a special term of the supreme court created by the present constitution, held in the city of New-York, before Mr. Justice Edmonds. The appeal coming on to be heard, it was objected on the part of the defendants, that an appeal to this court could not be taken from an order or decree made at a special term.