Volume 3 — Hill & Denio's New York Reports

Action on the case, tried at the Herkimer circuit in September, 1839, before Willard, C. Judge. The declaration charged the defendants with negligence in towing the plaintiff’s boat on the Hudson river between New-York and Albany, by reason of which the boat was run on the rocks and sunk, and the goods on board the boat damaged and lost.

Demurrer to declaration in slander. The first count (after the usual introductory matter) charged that the defendant contriving, &c. and intending to cause it to be suspected and believed by his neighbors and other citizens that he the said plaintiff had been and was guilty of the offences thereinafter mentioned to have been imputed to him, and to subject him, &c. heretofore, to wit, on, &c. at, See. in a certain discourse, &c. spoke and published to, of, and concerning the…

<p>Trespass may be maintained by the owner of a pew in a church, against one who disturbs him in the possession. ,</p>

<p>If logs be delivered at a saw-mill, under a contract with the miller that hd shall saw them into boards within a specified time, and that each party shall have one half the boards; the transaction enures as a bailment merely, and the bailor retains his general property in the logs till all are manufactured pursuant to the contract.</p> <p>The contract in such case is entire; and, as between the bailor and bailee, the latter can acquire no interest in any of the boards manufactured, by a mere part performance within the time.</p> <p>Accordingly, where logs were thus delivered to a miller who, after sawing a part of them into boards within the time, failed to perform as to the rest, and converted both the boards and the logs to his own use: Held, that the bailor might recover in trover for the whole, and that the miller was not entitled to any deduction on account of what had been actually sawed.</p> <p>Had the logs been delivered under a contract that the miller should return boards generally, instead of the identical boards manufactured from the logs, trover could not have been maintained, as the transaction would then have amounted to a sale.</p> <p>Where logs are delivered to be sawed, under a contract that the miller shall have one half of the manufactured article, a tenancy in common arises as to the latter if the contract be performed. Semble.</p>

<p>Though the defendant in a suit pending before a justice make affidavit pursuant to the act of 1838 {Sess. L. ’38, p. 232, § 1) that the justice is a material witness &c., a discontinuance should not be granted unless the facts and circumstances detailed are such that the justice can judicially pronounce them relevant.</p> <p>Accordingly, where the affidavit stated that the defendant expected to prove by the justice, a submission of the demand in controversy to three arbitrators, of whom the justice was one—that the agreement to submit was made between the defendant and one C. who then claimed the demand—and that C. afterward revolted the submission before any award was made Held, not sufficient to warrant a discontinuance, though the affidavit added, that the defendant settled the demand with G. who was either owner thereof or agent for the plaintiff; it not appearing that he expected to prove the latter by the justice.</p> <p>The affidavit, moreover, should contain enough to show that the justice is a neces. sary, as well as a material witness; especially where, on its face, it imports that there are others who probably know as much of the matters detailed as the justice Per Bronson, J.</p> <p>Whether a discontinuance can be properly ordered on an affidavit made before the plaintiff has declared, quere</p>

<p>Where the statute of limitations has begun to run against a simple contract de. mand, and the debtor dies, though it be presented to his executor pursuant to 2 R. S. 88, § 34, et seq., and he neither allow nor reject it, the creditor must at all events prosecute within seven years and a half from the time it fell due, or he will be barred.</p> <p>If, on a demand being presented to an executor pursuant to the above statute, he ask time to enquire into and examine it, he will not be allowed to avail himseli of the short limitation provided by 2 R. fif. 89, § 38, without giving decisive evidence of his having rejected it more than six months before the suit was brought. Per Bronson, J.</p>

<p>At common law, no person was bound to fence against the cattle of another; and, for any trespass they might commit, their owner was answerable, whether ’ they entered from his close, the close óf a third person, or from the highway.</p> <p>But this liability has been restricted by statute, as between the proprietdrs of adjoining closes, who, under certain circumstances, are each bound to maintain a just proportion of their division fence; and the party in default has no rem edy for a trespass committed by the cattle of the other party.</p> <p>Where one’s cattle are lawfully placed on A.’s land, and es'cape thence to the land of another, their owner is entitled to the Same exemption from liability that A. might claim in case the cattle had been his, but nothing more.</p> <p>Accordingly, where B.’s, cattle were rightfully pasturing on land owned and occupied by A., and they escaped thence to the adjoining land of C. through a defect in the division fence which A. was bound to repair: Held, that C. might maintain trespass against B.</p> <p>And, semble, as the cattle were on A.’s land with his consent, he might-be treated as owner of them for all the purposes of a remedy, either at the common law or under the statute.</p> <p>The statute providing a summary remedy for trespass on lands, by calling out the fence viewers tq appraise the damages, applies only to adjoining owners; and, oven as between them, it is not to be construed as taking away any previously existing common law remedy by action.</p> <p>Quere, whether that statute has not given a remedy against the adjoining owner in certain cases where none existed before ?</p> <p>Where a statute merely gives a new remedy, without a negative express or im. plied, the old remedy is not taken away, but the party may elect between the two.</p> <p>But if a statute create a right which did not exist before, and prescribe a remedy for the violation of it, that remedy must be pursued,</p>

The relators in the first case claimed to have been elected assessors of the sixth ward of the city of New-York. The relator in the second case alleged that he had been chosen clerk of the board of assistant aldermen ; and in the third case, the relator claimed to have been chosen clerk of the board of aldermen of the said city.

<p>Debt, tried at the Onondaga circuit, in April, 1841, before Moseley, C. Judge. The action was by the plaintiffs as the last endorsees, against the defendant as first endorser of a promissory note made by T. C. Bates, and payable to the order of the defendant, W. A. Bates, at the Commercial Bank, Albany. The note was endorsed by the defendant, H. Raymond, and J. G. Forbes. On the trial, after the plaintiffs’ counsel had proved the signatures of the maker of the note, and of the defendant as first endorser, the defendant’s counsel objected that debt could not be maintained in this case. The judge overruled the objection, and the defendant’s counsel excepted. The plaintiffs’ counsel then introduced in evidence a notarial certificate of protest and notice, stating that the notary “ caused the original note, a copy of which is on the other side written, to be presented at the Commercial Bank, and payment demanded,” &c. The defendant’s counsel insisted that the certificate was defective, in stating that the officer caused presentment to be made, instead of certifying that he presented the note himself; and in stating the presentment to have been made at the Commercial Bank, and not at the Commercial Bank, Albany. The judge decided that the certificate was defective, and nonsuited the plaintiffs, who thereupon excepted, and now moved for a new trial on a bill of exceptions.</p>

<p>The action of account is one of the most difficult, dilatory and expensive ones known to the law ; and parties resorting to it must be held to the ancient rules of pleading, subject only to such alterations as may have been made by the legislature. Per Bronson, J.</p> <p>Our statute (2 R. S. 306, 2d cd.) docs not call for greater countenance to the action of account than was formerly given to it, nor dispense with any of the old forms of proceeding previous to the judgment of quod computet. Per Cowen, J.</p> <p>A declaration in an .action of account, charging the defendant as receiver of moneys of the plaintiff, either generally, or specially as partner, is bad, unless it show by whose hands they were received.</p> <p>In general, an action of account will not lie between partners, unless the partnership be mercantile; and hence, the declaration must show such to have been its character, or it will be bad.</p> <p>Querc, whether the action will lie even in the case of a mercantile partnership, where there are more than two partners? Per Cowen, J.</p> <p>No action of account lies between joint tenants and tenants in common of goods, where they occupy the goods in common; nor in a case of separate occupation by the defendant, unless he has been appointed bailiff of the plaintiff’s share. Per Cowen, J.</p> <p>The same rule prevails, it seems, as between partners who are not merchants. Per Cowen, J.</p> <p>A declaration in an action of account, charging the defendant as bailiff, must de-t scribe the goods of which he had the care and management.</p> <p>Even if one partner, as such, could maintain account against his copartner, charg. ing him as bailiff of their joint effects, the declaration would be bad, unless it expressly showed that the defendant had received more than his just share or proportion.</p>

Assumpsit, tried at the Chenango circuit in April, 1841, before Monede, C. Judge. A verdict was rendered for the plaintiff, and the defendant now moved for a new trial upon a case. The facts are sufficiently stated in the opinion of the court.

<p>Books of account were proposed to be introduced as evidence for a specified purpose, with the express qualification that the adverse party should be prohibited from using them to prove other matters which they were equally competent to establish: Held, not receivable under these restrictions, but, if introduced, they must come in as evidence generally.</p>

Baum sued Tarpenny before a justice in trespass for taking and carrying away a quantity of cord wood. The jury, on issue joined, found a verdict for the plaintiff for $1,88, on which the justice rendered judgment. The common pleas, on certiorari brought by the defendant, reversed the judgment on the ground, 1. That the evidence did not justify the verdict of the jury ; and 2.

<p>A bond given on the appointment of a guardian to sell the real estate of an infant, under the act of 1815, (Ssss. Laws of 1815, p. 103, § 2,) cannot be prosecuted until proceedings for an account have been had against the guardian, in chancery.</p> <p>Where the guardian is dead, no account having been rendered by him, nor the proceeds of the land invested under the direction of the chancellor, his personal representatives should be required to account before the suit is instituted.</p> <p>If there be a difficulty in pursuing that course, the plaintiff must make out a spe. cial case showing the necessity of a suit on the bond; for until this is done, a court of law ought not to undertake the adjustment of a trust of this description.</p>

Ejectment, tried at the Westchester circuit, in' November,-1840, before Ruggles, C. Judge. The suit was brought by' Joseph Orser and twenty-three others, to recover possession of a farm in Westchester county, containing about 100 acres of land.

Ejectment, tried at the Tompkins Circuit, in September, 1841, before Monell, C. Judge. The plaintiffs claimed the premises in question in right of Mrs. Fleming, oiie of the plaintiffs, who Was heir of Petef Tallman. At the trial the following facts appeared : Tallman acquired a valid title to the premises on the 27th of January, 1795.

Demurrer to plea. The declaration was in trover, and the defendants pleaded that the goods were the property of the plaintiff, and, being on premises demised by the former, were there seized as a distress for rent. The plaintiffs demurred, assigning for cause that the plea amounted to the general issue. Joinder.

Jessel sued the defendants in assumpsit, on a policy of insurance entered into by them, wherein they engaged to insure one Charles E. Sheward against loss by fire for one year, upon certain property in which the latter had an interest. The policy bore date July 26th, 1838, and the property was destroyed by fire on the 24th of January 1839.

P., where Miller sued Haywood for trespass. On the trial the following facts were proved : Haywood was a farmer owning two farms several miles distant from each other, one of which was called the upper and the other the lower farm.

<p>Under an indictment for producing an abortion of a quick child, which, by the revised statutes, is a felony, the prisoner may be convicted, though it turn out that the child was not quick, and the offence therefore a mere misdemeanor. The provision in 2 R. S. 702, § 27, has not affected the common.law rule respect.</p> <p>ing the right to convict of an inferior offence, on an indictment for a superior one. The English doctrine that, under an indictment for a felony, the prisoner cannot be convicted of a misdemeanor, proceeds upon peculiar reasons which have no foundation in the criminal law of this state.</p> <p>Under an indictment for murder, the prisoner may be convicted of manslaughter. Per Cowen, J.</p> <p>So, the prisoner may be convicted of simple larceny, under an indictment for burglary or robbery. Per CowBN, J.</p>

Ejectment, to recover an undivided third of a lot of land in the village of Binghamton, Broome county, which the plaintiffs claimed as the dower of Mrs. Cooper, who was widow of John Burlew deceased. The cause was tried at the Broome circuit, in May, 1840. The case was this : Burlew and Mrs, Cooper were married in July, 1810, but had never afterwards lived together.

<p>Error to the Rensselaer C. P. Eldred sued Moon & Brock before a Justice, and declared in trover for a quantity of hemlock boards. The defendants pleaded separately not guilty. On the trial, after the plaintiff had given his evidence and rested the cause, Moon moved to be discharged and have judgment of nonsuit entered in his favor, on the ground that there was no evidence against him. The justice granted the motion, and gave judgment of nonsuit against the plaintiff in favor of Moon for $2,79 costs. Moon was afterwards sworn as a witness for Brock, who called several witnesses. After the evidence closed, the justice rendered judgment of nonsuit against the plaintiff in favor of Brock for $2,97 costs. The plaintiff brought a certiorari in the C. P., where both judgments were reversed. The defendants sued out a writ of error.</p>

Chipman, a supreme court commissioner, residing in the county of Essex, to bring up the proceedings before him by which the defendant Abel was discharged from imprisonment.

Assumpsit, tried before Kent, C. Judge, at the New-York circuit, in November, 1841. The plaintiff gave in evidence a promissory note made by the defendant on the 15th of January, 1833, for $524,98, payable to Lawrence Gross or bearer, one day after date, on which, after deducting payments, there remained due $417,62. The defence was a set-off against Lawrence Gross, the payee of the note.

A^mandamus having heretofore issued in this cause, the parties waived the'making of a return, and agreed upon the following facts. In 1834, Ann Garvin, now the wife of Allen, A. M. The. vessel was ■ then 300 or 400 yards from the position she had been occupying in the Rotterdam canal. The pilot for the river was to have been on board on the 5th, but owing to head winds he did not come till the 8th.

<p>An agreement which by its terms is not to be performed within a year from the time it is made, is void unless reduced to writing.</p> <p>Otherwise, if the agreement be such that the time for performance may arrive within the year, even though it be highly improbable that it will. And see note (a).</p> <p>Although performance is to begin, and does in fact commence within the year, yet if the agreement is not to be completely executed within that period, it is within the statute of frauds. And see note (ó).</p> <p>So of an agreement not to be performed within a year, even though from its nature it may be lawfully annulled or put an end to within that time. See note (6).</p> <p>A party who refuses to go on with an agreement, void by the statute of frauds, after having derived a benefit by a part performance, must pay for what he has received.</p> <p>Whether in such a case the plaintiff will recover at the rate of compensation provided for by the agreement, or as upon a quantum meruit or quantum, vale, bat, queue.</p> <p>h. let the use of his mare for breeding purposes, to B., the owner of a stud-horse, under the following parol agreement: B. to pay a specified sum for the colt, if one should be foaled—the mare to remain in L.’s possession, and he to keep the colt till the usual time for weaning, or until it became four or six months old. A colt having been raised from the mare, B. demanded it after it became six months old, tendering the agreed sum, but L. refused to let him have it; whereupon B. brought replevin: Held, that the agreement was void as being ' one which from its nature could not be performed within a year, and that B. therefore had no right of action.</p> <p>As no time was specified for the payment of the money by B., it did not become due till the period fixed for delivering the colt. Per Bxonson, J.</p>

The action in the court below was by John R. and Henry Mahler, the endorsees, against Henschel as acceptor of a hill of exchange in these words : u Leipsic, April 18, 1839. For Fr’s 8755,60, pay’ble in Paris on the 31 Dec’ber, 1839.

Covenant, tried at the New-York circuit, in October, 1841, before Kent, C. Judge. On the trial the case was this : In 1835 the defendant and his wife executed to the plaintiff a conveyance of certain lands in fee. The deed contained a covenant of seisin in the usual form, for a breach of which the actio'n was brought. The plaintiff went into possession of the lands under the deed and had never been disturbed by reason of the defendant’s want of title.

<p>If an agent appropriate the money of his principal to the payment of the debt of a third person, without any authority for so doing, and these facts are known to the payee at the time of receiving the money, it may be recovered of the latter by the principal in an action for money had and received.</p> <p>Accordingly, a judgment having been recovered against M. for violating a city ordinance, he and others persuaded A’s servant to pay the same to W., the clerk of the court which rendered the judgment, out of funds belonging to A., but without authority from A. for so doing; and W. received the money with full knowledge of these facts: Held, that A., having demanded the money of W., might recover the amount against him in an action for money had and received. Otherwise, had the money been received by W. in ignorance that it belonged to A., and been paid into the city treasury before notice. Per Nelson, Ch. J.</p>

Demurrer to declaration in slander. In the first count the words were, “ Chase is a black-leg and swindler; here is Stephen Potter’s letter to confirm it.” Innuendo, that the said plaintiff had been guilty of the crime of swindling.

P., where Hague & Redfield sued Porter to recover the value of one hundred lamps alleged to have been sold by the plaintiffs to the defendant. The declaration was for goods sold and delivered. Plea, non assumpsit. The case was this: On the 27th of August, 1840, the defendant, a merchant of the city of New-York, agreed to take of the plaintiffs, who were engaged in business at Newark, N. J., two dozen side-lamps in one lot. These were paid for and delivered to the defendant.

Trover for a pair of horses, tried before Cushman, C. Judge, at the Albany circuit, in June, 1840. The plaintiff as a part of his case, called Thaddeus St. John, and proved by him what the defendant had said about the matter on a particular occasion. He was cross-examined as to what further the plaintiff had said on that subject in the same conversation. As to one question put to the witness he could not answer.

Ejectment, tried at the Washington circuit, in October, 1841, before Willaud, C. Judge. The action was brought to recover about thirty acres of land in the town of Granville. On the trial, the defendant showed title in himself and others, and out of the plaintiffs. The latter insisted that the defendant held as their tenant, and that they were therefore entitled to recover possession, the defendant being estopped to question the plaintiff’s title.

P., where Lillie, an infant, sued Haile in assumpsit for work, &c. On the trial, evidence was given on the part of the plaintiff below tending to show that a settlement had taken place between the parties; but the defendant insisted that no such settlement had ever been made, and offered to prove the admissions of the plaintiff to that effect.

P. Newell and Davis, overseers of the poor of the town of Crown Point, sued Warner before a justice of the peace, and declared in debt for the penalty given by 1 R. S. 6.79, § 10—(p. 678, 2d ed.,)—alleging that on, &c., the said Warner did, contrary to the statute, &c., erect and put up a sign indicating that he kept a tavern ; and that he had continued to keep up such sign every day from, &c., to, &c. : whereby, &c. The summons was issued on the 2d of January, 1838.

On certiorari to the oyer and terminer of Oneida county, where Baker, the prisoner, was convicted of receiving stolen goods of the value of $100. The indictment contained three counts, each charging a felony. The first count was for receiving stolen goods; the second, for burglary ; and the third for grand larceny.

<p>The parties to a policy of insurance may insert in it what conditions they please, provided there he nolhing in them contrary to the criminal law, or public policy.</p> <p>(Accordingly, where a fire policy issued by an incorporated mutual insurance company was conditioned that, if the insured refused or neglected to pay any assess, ment duly made by the company upon his premium note, for thirty days after notice thereof, the policy should be void: Held, a valid condition, and that a violation of it was a good defence to an action on the policy.</p> <p>Otherwise, as to terms of forfeiture not mutually agreed to, but sought to be imposed by the company in the form of a by-law. Semble.</p>

Motion by the defendants to set aside a report of referees. The action was assumpsit, and the plaintiffs claimed to recover for the transportation of freight and consignee passengers over their rail road for the defendants in the year 1839. The defence was, that the plaintiffs and defendants were partners in the transaction in question, and consequently without a balance struck and promise of payment, the plaintiffs could not Sue at law.

Ejectment, tried at the Ulster circuit, in December, 1840, before Ruggles, C. Judge, where a verdict was taken for the plaintiff, A. L. Schoonmaker, subject to the opinion of the court,, upon the following facts: Simon Schoonmaker, the plaintiff’s grandfather, died seised in fee of the lands in question, in 1827, leaving a will by which he devised the lands to his son Benjamin, the plaintiff’s father, in these words : “ And to my son Benjamin I do give, devise and bequeath,”…

P. Morris brought replevin for a pair of horses in the court below, and declared for an unlawful taking. The defendants severally pleaded non cepit. On the trial the plaintiff proved that he bought the horses of one Dayton on the 19th of August, 1839, and took them into his possession and used them. He then proved that' the defendants in September following had the horses in their possession and took them to a stable in Watts street and left them there to be kept.

Cee.tioe.aui to the Oneida general sessions, where Thomas was convicted of obtaining money by false pretences, of one Jones.

Assumpsit, tried before Cushman, C. Judge, at the Albany circuit, in 1841. The plaintiff gave in evidence a promissory note, made by the defendants, for $366, dated November 28,1836, and payable to the plaintiff one year after date with interest. The defendants, under a notice for that purpose, proved that the plaintiff, just before the giving of the note, sold several lots of standing wood at auction.

On error from the Oneida general sessions, where Johnson was tried and convicted of an assault and battery. At the trial in the court below, one Warren was called as a witness for the prosecution, and gave material testimony. Afterward, the defendant called several witnesses for the purpose of impeaching Warren on the ground of bad character.

P. Tifft sued Culver before a justice, and declared in trespass, for wilfully overturning his wagon. After issue joined, the cause was adjourned on the defendant’s motion to the 9th of May, which was Saturday, at 6 P. M. The parties appeared and the plaintiff then proved that one Casey, who was a material witness for the plaintiff, had been duly subpoenaed, and neglected to attend. The justice thereupon issued an attachment against Casey.

Ejectment, for an undivided eighth part of one hundred and twenty acres of land in Lodi, Seneca county, tried at the Seneca circuit in November, 1841, before Mosely, C. Judge.

Delaplaine sued Hebberd before an assistant justice of the city of New-York, and declared for the breach of a covenant contained in a lease executed by and between the parties, by which the defendant agreed to pay the taxes on a certain lot of land described in the lease. The defendant pleaded verbally “ the general issue.” On the trial before the justice, the plaintiff was nonsuited.

Debt, tried before Willard, C. Judge, at the St. Lawrence circuit, in July, 1841. The plaintiffs sought to charge the defendant as a stockholder of the Rossie Galena Company for a debt due from the company.

P., w.here a verdict was rendered for the defendant in error, who was plaintiff in the court below. The facts are sufficiently stated in the opinion of the court.

The property was described in the indictment as follows: “ Ten promissory notes, commonly called bank notes, of the value, &e. j eleven bonds of the state of Maryland issued under an act of the general assembly of that state, at the December session, in the year 1838, each for ¿£250 sterling, lawful money of Great Britain, with interest at 5 per cent., payable in London at any time after the expiration of 50 years from their date, and dated July 1st, 1839, with coupons…

Lawrence C, P., where Odell brought an action of trover against James Dezell. It appeared on the trial in the court below that a judgment was rendered by a justice of the peace in favor of John Lytle against David Mitchell and Alexander Dezell, for $52,08 damages and costs, on which an execution was issued and delivered to the plaintiff below, a constable.

<p>In a conflict of equitable claims, the rule at law as well as in equity is, qui prior est tempore potior est jure.</p> <p>As between different assignees of a chose in action, by express assignment from have given no notice to either the subsequent assignee or the debtor. the same person, the one prior in point of time will be protected, though he</p> <p>In order, however, to secure the rights of the first assignee as between him and the debtor, the latter must be notified; for if he pay the subsequent assignee before notice, such payment will be operative as to the first.</p> <p>Otherwise, if the debtor pay the subsequent assignee after notice from the first; in which case the latter may, at his election, either sue the debtor upon the original claim, or charge the subsequent assignee as for money had and received.</p> <p>M., who held a bond andmortgage_ against S. & R. on which two installments remained unpaid, assigned and" delivered the bond to D. as collateral security for the payment of a debt due him, and afterwards executed an absolute assignment of the same bond, together with the mortgage, to A., for a valuable consideration. Notice of the last assignment was immediately given to S. & R., who thereupon promised A. to pay him as the installments became due. One payment having subsequently been made to A., D. notified S. & R. of the previous assignment to him, giving as a reason for delaying notice that he did not expect to be obliged to resort to the bond for his security. Another installment was afterwards paid to A., whereupon he acknowledged satisfaction of the mortgage. Held, in an action on the bond by D., in the name of M., that the last payment was made by the obligors in their own wrong; and that D. might recover the amount.</p> <p>The case of Murray v. Lylbum, (2 John. Ch. Rep. 441,443,) commented on, and some of its dicta disapproved.</p> <p>As between the assignor and assignee of is compíete without any notice to the debtor.</p> <p>The assignment of a chose in action will prevent its passing to assignees in virtue of a subsequent general assignment by the same assignor under the bankrupt or insolvent acts; and this, without notice to the debtor or subsequent as. signees.</p> <p>Anassignee of a chose in action may sue in his own name, on an express promise by the debtor to pay him. Per Cowen, J,</p> <p>But if the assignment be inoperative by reason of a prior assignment to another, the debtor’s promise is void for want of consideration.</p>

Error, to the New-York C. P. The action in the court below was by Hall against Newcomb ; and the declaration charged the defendant in one count as maker, and in another, as guarantor, of a promissory note made by Peter Farmer, payable to the plaintiff. The case was this : The note in question was made payable to the plaintiff or order, and was endorsed by the defendant for the accommodation of Farmer, the maker.

<p>Error to the Delaware C. P. Richtmyer sued M’Minn in a justice’s court; and on the return day of the summons, which was personally served, one Daniel appeared for the plaintiff, and declared on a promissory note made by the defendant payable to the plaintiff. There was no appearance on the part of the defendant, and Daniel immediately proceeded to trial. He was not sworn as to his authority to appear for the plaintiff, but on being sworn generally as a witness in the cause, testified that the note was left with him for collection ; and that while it was in his hands, the defendant acknowledged it, and promised payment. The justice thereupon rendered judgment for the plaintiff, which was affirmed by the common pleas on certiorari; and M’Minn sued out a writ of error</p>

P. Lathrop sued Shall before a a justice of the peace, and declared in assumpsit for a breach of warranty on the sale of a horse. After issue joined, the cause was tried on the merits, and submitted to the justice.

Payfer commenced an action of debt in the court below against Bissell, a constable, for not returning an execution within the time prescribed by law. The execution was issued from that court, upon a judgment in favor of Payfer against Ormsbey & Hall. On the trial the case was this : The execution in question was issued and delivered to the defendant below, on the 1st of July, 1840, returnable in sixty days.

<p>Error to the Yates C. P. Hazard sued Van Orsdall before a justice of the peace, and declared in trespass for taking a horse. Plea, the general issue, with notice of justification. The cause was tried by jury, and a verdict rendered for the plaintiff. After judgment, the defendant appealed to the C. P., and, on the trial in that court, the case was this : The horse in question was taken by a constable, under the direction of the defendant below, in virtue of a warrant for the collection of fines imposed upon the plaintiff and others by a militia court martial, of which the defendant was president. The plaintiff insisted that the warrant afforded no justification to the defendant, for the reason, among others, that the court martial was not duly organized. On this point the evidence was, that Col. Sherer appointed the defendant president of a regimental court martial, and associated with him, as members, Captains Henion and Lovejoy. They met in pursuance of the appointment, and after being sworn into office, the latter applied to Col. Wagoner, the successor of Col. Sherer, to be excused from acting, on account of the dangerous illness of his child, adding that he was also unwell, and would not serve; that he would rather pay his fine. On these grounds the colonel excused him, and appointed in his place Lieutenant William Potter. The court, as thus organized, imposed the fine. It was further insisted that the warrant was irregular, having been issued before any official notice by the court to the plaintiff that a fine had been imposed, the summons to the court martial not having been personally served on him. The court below charged the jury, that the warrant did not constitute a justification, for the reason that the court martial was not duly organized, and also on the ground that notice of the fine should have been given before issuing the warrant. The defendant excepted. The jury rendered a verdict for the plaintiff, and, after judgment, the defendant sued out a writ of error.</p>

Action on a policy of insurance, tried at the New-York circuit, in November, 1841, before Kent, C. Judge.

<p>One object of the statute allowingnotice of special matter to be substituted for a plea was, to avoid the niceties of special pleading; and, being of a highly remedial character, it should be liberally construed.</p> <p>In a notice of this character, technical language and matters of mere form, such as time and place, may be wholly disregarded; nor, in respect to substance even, need it contain all the particulars of a special plea.</p> <p>Such notice is sufficient if it fairly put the plaintiff in possession of the means for ascertaining the details of the defence, though they be not slated.</p> <p>In judging of those notices the court should look to the condition of the party, and, in the exercise of a sound discretion upon the nature of the defence as compared with the notice, determine whether a man of ordinary capacity in business, assisted by professional advice, could complain that lie had been mis. led. Per Cowen, J.</p> <p>In trespass brought in the common pleas for taking cattle, notice was given with the general issue that the cattle belonged to R. a third person, and that the defendant took them by virtue of two executions issued by H., a justice of the peace, on judgments rendered by him against R.—naming the parties in whose favor the judgments were rendered, the amount of the judgments respectively, and the time of issuing the executions. Held, that the notice was sufficient to authorize the defendant to give the judgments in evidence; and the common picas having ruled otherwise, their judgment was reversed.</p> <p>The case of Gorham v. Chamberlain, {H0‘John. Rep. 746,) commented on, and the defence of which notice was there given, declared to be admissible under the general issue. Per Cowen, J.</p>

The action in the court below was by the North River Bank against Aymar and Embury, executors &c. of Pexcel Fowler deceased, on eleven promissory notes ; six of which purported to have been made on behalf of the defendants’ testator, and were signed thus : “ Pexcel Fowler—Jacob D. Fowler, alt’y.” Of these six notes, four were payable to the order of David Rogers & Son, and by them endorsed ; and the other two were payable to the order of Jacob D. Fowler, and were endorsed by…

Assumpsit, tried at the New York circuit, in March, 1841, before Edwards, C. Judge. The action was on a promissory note payable to the order of George W. Tysen & Co., by whom it was endorsed to the plaintiff. The note purported on its face to have been made by the defendant David I. Tysen, by George W. Tysen his attorney.

Replevin-, for the wrongful detention of a horse, tried before Griblev, G. -Judge, at the Erie circuit, in August, 1840. The proof was of a tortious taking from the plaintiff’s possession ; whereupon the plaintiff sued out this writ of replevin, and delivered it to the sheriff to be served. He went with the sheriff to the defendant and demanded the horse; and immediately afterwards the writ was served.

G. & R. L. Rudd sued Davis in the court below under the act entitled “ An act for the better security of mechanics and others erecting buildings in the city and county of New-York.” (Sess. Laws of’ 30, p. 412, and Sess. Laws of ’32, p. 181.) The action was by the plaintiffs as material men against the defendant for whom one Harold Geer had contracted in writing to erect certain houses in the city of New-York.

<p>The defendant was indicted and tried in the New-York general sessions, under 2 R. S. 694, § 21, which provides, that “ every person who shall wilfully administer to any pregnant woman any medicine, drug, substance or thing whatever, or shall use or employ any instrument or other means whatever to procure the miscarriage óf any such woman,” unless &c., shall upon conviction be punished &c. The third count of the indictment charged, that the defendant made an assault upon Ann Maria Purdy, then being pregnant with child, and wilfully, wickedly &c.did use and employ, and cause and procure to be used and employed in and upon the body and womb of the said A. M. P. the mother of the said child, certain instruments, to wit, one piece of xv ire and one pair of pliers, with the intent thereby then and there to procure the miscarriage of the said A. M. P., the mother of the said child &c. The fourth count charged, that the defendant used and employed a certain instrument to the jurors unknown. On the trial, in July 1841, it appeared that the alleged offence was committed in July 1839, that Mrs. Purdy immediately became very ill, and a miscarriage soon after followed. The mother was never well afterwards, and she died on the 28th of April, 1841. In the deposition of Mrs, Purdy, which had been taken before her death, she stated that the hand of the operator, or a hand and an instrument, were put into her person for some considerable distance, and were kept there about two miuutes, and in that way the thing was done. While the operation was going on, as the witness stated, the parts within appeared to be separating, and caused a good deal of pain.</p> <p>The district attorney produced and offered in evidence a deposition of Mrs. Purdy, who had died before the trial, which commenced as follows;</p> <p>(C General Sessions of the Peace in and</p> <p>for the City and County of New-York.</p> <p>The People of the State of New-York'</p> <p> v. </p> <p>Ann Lohman, otherwise called Madam Restell.</p> <p>Affidavit and examination taken pursuant to an order of the court hereto annexed.</p> <p>City and county of New-York, ss. Ann Maria Purdy, wife of William W. Purdy, being duly sworn, deposes” &c. The deposition was subscribed by Mrs. Purdy, and there was a jurat as follows: “ Sworn before me March 22d, 1841. H. W. Merritt* special justice.” Then followed a second deposition of Mrs. Purdy, taken on the same day and before the same officer, in which the witness identifies the defendant, being present, as the person accused in the first or principal deposition. Immediately following the second deposition was a jurat in these words : “ The above two depositions made by Ann</p> <p>Maria Purdy re-sworn to before me this 5th day of April, 1841. F. A. Tallmadge.” Following this was an order of the court of general sessions, as hereafter mentioned. The first deposition was originally made before Justice Merritt as a foundation for issuing the warrant. The defendant was arrested and brought before the justice on the same day. The justice stated to her the nature of the charge and the substance of the affidavit, and told her she had a right to have counsel. Her husband, who was present, said he wished to employ counsel, and left the office for that purpose. About five minutes after he left the office the justice asked the defendant if she had any objection against going up to Mrs. Purdy’s, saying the object in going was merely to have Mrs. Purdy, who was then sick in bed, identify the defendant, and at the same time telling the defendant she might remain at the office until her counsel came. The defendant answered that Mr. Morrell (for whom her husband had gone) was coming as her counsel, but she would go with the justice up to Mrs. Purdy’s; it made no difference. The defendant was then taken to Mrs. Purdy’s, and immediately on arriving there, the justice, as he testified on the trial, u told Madam Restell he was about to read the examination of Mrs. Purdy, and he then read the deposition over. After witness read over the first deposition of Mrs. Purdy, the second was written and read over to the witness in presence of Madam Restell, and the two depositions were then sworn to by Mrs. Purdy. Witness told Madam Restell, after Mrs. Purdy had sworn to the said depositions, that she, Madam Restell, could put any questions she chose to Mrs. Purdy. Madam Restell put a number of questions to Mrs. Purdy, which Mrs. Purdy answered, but neither the questions nor answers were put down, because witness did not think it material to put them down. There was, in point of fact, but one question. Madam Restell in putting her questions put the same question over and over again, and the answer had been given before any question was put by Madam Restell as witness considered, and was already in the affidavit.” The officer who attended the justice and the defendant on visiting Mrs. Purdy, said they were not in the house over twenty or thirty minutes.</p> <p>Afterwards, on the 1st of April, 1841, the defendant was brought before the justice for examination, and was attended by counsel. The justice informed them that, if they desired it, the witnesses on the part of the complaint would be examined in their presence, and they could cross-examine them if they pleased. To this the counsel made no answer, and nothing was done. On that day the defendant was finally committed for trial by the justice.</p> <p>After the defendant had been finally committed, and on the 5th day of April, 1841, the court of general sessions, on an affidavit stating the dangerous illness of Mrs. Purdy, made an order, that her testimony be taken de bene esse before the recorder at her residence in Broome-street at 5 o’clock that afternoon, and that notice should be given to the defendant and her counsel. Notice was given accordingly, but the defendant and her counsel protested against the proceeding, and refused to have any thing to do with it. The recorder proceeded and re-swore Mrs. Purdy to the depositions as above mentioned. The deposition as originally taken before Justice Merritt commenced with the -words “ City and county of New-York, ss. Ann Maria Purdy, wife of William W. Purdy, being duly sworn,” &c. All that precedes these words was added by the recorder, together with the second jurat, on the 5th of April.</p> <p>On the trial in the court below, the defendant objected to the admission of the foregoing evidence, and also objected that the two depositions of Mrs. Purdy were not admissible in evidence. The court overruled the objections, the defendant excepted, and the depositions were read in evidence. The jury found the defendant guilty, and the proceedings were removed into this court by certiorari.</p>

Motion to set aside report of referee. The action was assumpsit, and the declaration contained the general counts for goods sold and delivered. Plea, non assumpsit and notice of set-off. On the hearing before the referee, the case was this : The parties entered into an oral contract by which the plaintiff agreed to sell the defendant a horse, in consideration of which the defendant was to convey to the plaintiff a piece of land in part payment.

The defendant was indicted and tried in the Suffolk county oyer and terminer for a rape upon Huldah T. Hulse. The third count of the indictment charged the offence to have been committed at the town of Brookhaven in the county of Suffolk.

<p>A short summons in favor of a non-resident plaintiff maybe issued by any justice of the county, though he and the defendant do not reside in the same toum or in adjoining towns.</p> <p>The security required of such plaintiff on commencing a suit by short summons in a case whore a set-off is allowable, should be for the payment of any sum that may be adjudged against him; security for costs merely is not sufficient.</p> <p>But where a justice returned to a certiorari that the plaintiff gave satisfactory Security in writing, signed, cj-c., for costs, according to law ; held, sufficient to warrant the inference that the security corresponded with the requisitions of the statute, and was not restricted to costs merely.</p> <p>If the defendant make no objection before the justice to the form of the security, he will be deemed to have waived all irregularity in this respect, and cannot therefore avail himself of it on certiorari.</p> <p>A justice may acquire jurisdiction in respect to the parties, by consent; though otherwise, as to the subject matter.</p> <p>Where a defendant’s conduct, on applying for a second adjournment before a justice, is such as to cast suspicion upon the bona fid.es of the application, and he refuses to state, either on oath or otherwise, what he expects to prove by his absent witnesses, the justice may refuse the adjournment.</p> <p>Semble, that the defendant’s refusal, on a motion for a second adjournment, to disclose what he expects to prove by his absent witnesses, should not be regarded as sufficient cause for denying the application, except the case be one of well grounded suspicion. Per Nelson, C. 3.</p> <p>■ 2 ustices of the peace have a discretion to exercise in granting and refusing adjournments ; and nothing short of a clear abuse of that discretion will be regarded as ground for interfering on certiorari. Per Nelson, C. J.</p> <p>Where a defendant applies for a second adjournment on an affidavit which does not show that he expects to be able to procure the attendance of his witness at the adjourned day, the justice may, for this reason, overrule the application. Semble.</p> <p>A justice’s judgment in favor of a plaintiff, which is subsequently reversed on certiorari upon technical grounds in no way involving the merits, is not a bar to ■a second action for the same cause.</p> <p>Ample powers are possessed by justices of the peace to maintain order and protect themselves from insult, while engaged in the discharge of their official duties; and, in the due exercise of these powers, they may at all times rely on the countenance and favor of this court. Per Nelson, C. J.</p> <p>A court of common pleas, before ordering an amended return to a certiorari, should examine the matters respecting which a further answer from the justice is sought; and should refuse the application in respect to whatever is irrelevant to the questions proper for review. Per Nelson, C, J.</p>

<p>The usual covenants of title and quiet enjoyment in a lease, import no more than that the lessor has, at the time, such a title to the demised premises as enables him to give the lessee a legal right of entry and enjoyment during the term.</p> <p>If the lessee be prevented from entering upon the demised premises by one already in possession under paramount title, an action lies against the lessor for a breach of the covenants. Per Nelson, Ch. J.</p> <p>Such covenants, however, import no warranty, express or implied, as respects the acts of strangers; and hence, if the lessee be prevented from entering into possession by1 a former tenant whose term has expired, the remedy is to be sought against the latter, and not against the lessor.</p> <p>Where premises were let to G. by an agreement, not under seal, containing a promise that he should have the sole and uninterrupted use mad occupation &c.; and, at the commencement of the teim the premises were occupied by one M., a former tenant, but whose lease had expired: Held, in an action by G. against the lessor for being kept out of possession, that the latter was not liable.</p> <p>Semble, that M. might have been proceeded against by G. in his own name under 2 22. S'. 513 authorizing “ summary proceedings to recover the possession of landthe latter being within the term assigns, as used in § 29 of the statute.</p>

Case against common carriers, tried at the Albany circuit, in April, 1841, before Cushman-, C. Judge. The facts were as follows : On the 22d of April, 1839, about 5000 mulberry trees or seedlings of the Alpine species, packed in two boxes, were delivered by the plaintiff to the agent of G. P. Griffith & Co., Troy, to be transported from that place to Lyons, Wayne county.

Ejectment for nineteen acres of land, tried at the Montgomery circuit, in November, 1840, before Willard, C. Judge; The case was this : The premises in question were a part of a farm containing 480 acres of land formerly owned and occupied by the plaintiffs’ grandfather, Nicholas Failing, who died in 1788 leaving five children, viz. Henry N. Failing the plaintiffs’ father, Maria, wife of Lawrence Gros, and three other daughters.

Replevin, tried at the Genesee circuit, in September, 1841, before Dayton, C. Judge. The action was brought to recover a mare.

<p>Error to the superior court of the city of New-York. Benjamin Waldron and Sally Ann his wife, brought ejectment in the court below against Bloomer, for a lot of ground situate in Gold-street, in the city of New-York, of which the latter was in possession, claiming title. On the trial, the case was this : Medcef Eden, the younger, died seized of the premises in question in 1819, leaving a will dated in July of that year, by which he devised his whole real estate to his wife, Rachael Eden, for life, or durante viduitate, for the maintenance and support of herself, her daughters Sally Ann, (one of the plaintiffs,) Elizabeth and Rebecca, and also of John Pelletreau, whom he thereby requested to reside with and assist his wife and her said daughters. In case of his wife’s re-marriage or death, he devised the said estate to Pelletreau during his natural life, for the support of himself and the three daughters; and after the death or re-marriage of his wife, and the death of Pelletreau, to the said three daughters in fee, subject to forfeiture if they should respectively marry without the consent of Aaron Burr. The concluding clause of the will was in these words : 661 give to my wife so long as she shall remain single, and to the said John Pelletreau after her death or marriage, full power and authority to sell and convey all or any part of my real estate, provided the said Aaron Burr shall in writing, &c. approve and consent to such sale, &c. The moneys from all such sales to be vested and secured in such manner as the said Aaron Burr shall direct, for the purposes of this my will. In case of any difference between my wife and her children and the said John Pelletreau, or between any of them, respecting the division of the income or proceeds of my estate, the same shall be referred to the judgment of the said Aaron Burr, who shall finally decide the same.” Elizabeth died in 1832, without issue; and in 1834, Rebecca’s interest was conveyed to Waldron, one of the plaintiffs and the husband of Sally Ann. Rachael Eden, the widow, died in September, 1830, and John Pelletreau in December, 1833. On the 18th of March, 1829, Rachael Eden executed a mortgage in fee to Henry Remsen, with the consent of Aaron Burr, to secure the payment of $1000, with interest, &c. This mortgage was foreclosed by a decree in chancery under which the premises in question were bid off by and conveyed to Jesse West, who afterwards sold to the defendant below. The widow being dead at the time of the master’s sale under the decree, and the title under the mortgage foreclosure being distrusted, Pelletreau executed a conveyance in fee to West, reciting the foreclosure and sale, and expressing a pecuniary consideration of one dollar ; which conveyance professed to be executed by him under and in pursuance of the power contained in the said will, and also had the consent of Aaron Burr in the form prescribed by the will. The foreclosure was by an amicable suit, and appeared to have been effected by consent of all parties. The premises were sold for $3,750 ; and the surplus after satisfying the mortgage debt, $1546,82, was, by order of court, paid to Pelletreau.</p> <p>The defendant’s counsel offered to prove that the mortgage money was borrowed by Mrs. Eden, with the consent of Aaron Burr, for the maintenance and support of herself, her three daughters and Pelletreau; that the surplus proceeds of the foreclosure sale were vested and secured as Aaron Burr directed, for the purposes of the will; also that the premises were sold for their full value at the time of the sale and the deed from Pelletreau. The plaintiff’s counsel objected to the evidence offered, and the court below sustained the objection, whereupon the defendant’s counsel excepted. The court charged that the mortgage executed by Mrs. Eden was not valid under the will; and that Pelletreau’s deed did not confirm the title. Exception. The jury rendered a verdict in favor of the plaintiffs below, and, after judgment, the defendant sued out a writ of error.</p>

Covenant, tried before Kent, C. Judge, at the New-York circuit in October, 1841.

Assumpsit, tried at the New-York circuit, C. Judge, in March, 1840. The action was before Edwards, brought in.January term, 1838, on a proposition or agreement of which the following is a copy : “ Ithaca, May 20,1836. Wm. H. GregoryEsq’r—D’r Sir—I wish you to effect a sale of my farm lying on the south hill near the village of Ithaca. The farm consists of two hundred and fifty-eight acres. If you sell it, I must have twenty thousand dollars.

<p>Trespass de bonis asportatis, tried at the Rensselaer circuity in September, 1841, before Cushman, C. Judge. The case was this : On the 12th of June, 1840, the goods in question— a quantity of boots, shoes, &c., valued at $1767,36—were seized by the defendant, as sheriff, in virtue of an attachment against Dexter M. Fay, an absconding debtor. Fay had occupied and done business in the store w'here the goods were, for several years previous to the winter of 1839-40 ; when he absconded, leaving the plaintiff, his clerk, who was a minor, in possession. After Fay left, viz. in March or April, 1840, the plaintiff purchased and placed in the store an additional stock of goods, worth from $300 to $400‘, and carried oh the business of a shoe merchant in his own name. When the sheriff went to the store with the attachment, he told the plaintiff that hb wanted to levy on such goods only as had formerly belonged to Fay, and requested the plaintiff to point them out; but he refused to do so, alleging that the whble belonged to him. The sheriff then attached all the property in the store. The plaintiff offered in evidence, in aggravation of damagfes, the inquisition of a jury summoned to try the validity of his claim to the goods, by which the property was found to he in him. The defendant objected to the introduction of this evidence ; but it was received by the judge. The defendant then proved that he had been indemnified for the detention of the property in the manner authorized by the statute. (1 R. S. 767, ^ 11, 2d ed.) The judge charged the jury, among other things, that “ it was for them to say whether the possession of the store and goods by the plaintiff, making purchases and vending as he did, was not prima facie evidence of ownership.” In respect to the inquisition, the judge charged that it should be entirely disregarded. The jury rendered a verdict in favor of the plaintiff for the value of the goods and interest, and the defendant now moved for a new trial on a case.</p>

The action in the court below was assumpsit by Comstock, president &c., against Willoughby, on a promissory note in these words : “$9,000. New-York, March 6, 1839.

Debt, tried at the Rensselaer circuit, in March, 1840, before Cushman, C. Judge. The action was by thé plaintiff, as sheriff of Essex county, on a joint and several bond executed by the defendants upon the arrest of Gage, in virtue of a ne exeat issued out of chancery in a suit by creditor’s bill wherein Gage was defendant and Webb & Averill complainants.

The indictment charged the prisoner with having stolen twenty-five pounds of butter, the property of one John Flagg ; and then alleged a previous conviction, &c. of the prisoner, by a court of special sessions, pn a charge of stealing ice from the ice-house of one Fay. On the trial, the second offence was established by the testimony of Flagg, the alleged owner.

Habeas corpus ad subjiciendum, issued and returned at the last term of this court. The writ commanded the respondent, Thomas R. Mercein, to bring into court Mary Mercein Barry, an infant child of John A. Barry, the relator ; the said child, as alleged, being illegally detained by the respondent, and withheld from the relator’s custody. ' The petition for the writ did not purport to be presented on behalf of the child, but by the relator in his right as father.

During the great fire in the city of New-York, in December, 1835, a building of which Lord was the lessee, being deemed hazardous and likely to take fire &c., was destroyed by order of the mayor, with the consent and concurrence of two aldermen. Lord’s damages were afterwards assessed by inquisition under the statute (2 R. L. 368, § 81,) at $156,274,80, besides expenses.

Indictment, tried in January, 1842, at the oyer and terminer in the city of New-York, before Kent, C. Judge, and two aldermen of the city. The first count of the indictment charged the prisoner, John C. Colt, with the murder of Samuel Adams in September, 1841; alleging the crime to have been committed by striking and cutting the deceased with a' hatchet.

Costs against the plaintiff suing as administrator. The plaintiff’s intestate, held certain premises under a lease for three lives, one of which lives continued after his death. Subsequent to the intestate’s death, the defendant’s testator occupied the premises under the plaintiff, and the present action was for that use and occupation- of the property.

S. H. Hammond, for the plaintiff, moved for a re-taxation of costs. The defendant demurred to the declaration, and the plaintiff gave notice that he would bring on the argument on the ground of the frivolousness of the demurrer, but did not move it as frivolous. When the cause was reached on the calcndar it was argued, and judgment was rendered for the defendant on the demurrer, with leave to the pláintiff to amend on payment of costs.

<p>The fact that one suing as executor is not such, may be pleaded in bdr.</p> <p>Whore oyer is duly demanded by a defendant before the time for pleading has expired, if the plaintiff afterwards, and without complying with the demand, enter the defendant’s default for want of a plea, the proceeding will be set aside as irregular.</p> <p>An executor or administrator whose proceedings are set aside on motion as irregular, will be ordered to pay the costs of the motion.</p>

Forcible entry and detainer. After traversing the inquisition, the procedings were removed into this court by certiorari, and an order was made that the issue be tried in the county of Delaware. After one default the relator stipulated to try at the next circuit, and for not trying pursuant to stipulation,

The affidavit was made by the counsel who attended the circuit on behalf of the defendants, their attorney residing in the country.

Motion by the defendant to set aside the default and subsequent proceedings for irregularity. An order was made by a commissioner enlarging the time to plead. After the original twenty days had expired, but before the enlarged time was out, the commissioner revoked his order, and the plaintiff on the same day entered the defendant’s default for want of a plea.

<p>In suite commenced since the act of 1840, (Sess. L. 1840, p. 327, § 2,) a counsel fee is not taxable for attending prepared for trial, but only for actually try. ing, &c.</p> <p>The question is the same in relation to the argument of a demurrer, bill of excep. tions, &c. in cases within the above act.</p>

<p>An action having been brought on two promissory notes, copies of which were served with the declaration pursuant to rule 1st of May term 1841, the plaintiff before pica, sued the defendant again, declaring on an account which became due after the first suit was commenced; held, that a rule to consolidate ought not to be granted, inasmuch as it would enable the defendant to plead to the entire demand without an affidavit of mer'ts, and thus improperly delay the collection of the notes.</p> <p>Otherwise, if the defendant had sworn that he intended to suffer judgment by default in bvth actions, or had offered to accompany any plea that might be interposed by such an affidavit as would have been necessary in pleading to the first action. Semble.</p>

judgments in these actions had been perfected for the plaintiffs, and executions had been issued, ¡je defendants, on application to the court, were let in to d-fend on terms, and the judgments and executions were ordered to stand as a security. Dn trying the actions the; plainlilfs obtained verdicts in their favor, which the defendants lhuve(j to set as¡dCj byt the motions werejenied.

<p>An attachment against a foreign corporation cannot be allowed by a judge or com missioner during the actual session of the court.</p> <p>Accordingly, where an attachment was thus allowed, though during the third week of the session; held, irregular.</p>

<p>Action for libel, in which the defendants were arrested and held to bail in the sum of $2500, by virtue óf an order of the recorder of the city of New-York endorsed upon the capias. The defendant Butterfield thereupon applied to the circuit judge and obtained an order that the plaintiff show cause before the judge at chambers why the defendant should not be discharged on filing common bail. On the appointed day for showing causé the judge made an order that Butterfield be discharged on filing common bail, and that the plaintiff pay $10, as costs of the motion.</p>

Witnesses5 fees. The plaintiff’s witnesses, who lived at the distance of one hundred miles and upwards from the place of trial, were subpoenaed for the first day of the circuit, and started in season to arrive there at the opening of the court on the first day ; but, in consequence of an accident by the way, the witnesses did not arrive until the morning of the second day.

<p>In laying out highways, the commissioners, as wa(l as the judges before whom the matter is brought on appeal, exercise a special and limited jurisdiction; and although it may be presumed till the contrary appear that .they have proceeded legally, yet their acts may be impeached by showing that they exceeded their powers. Per Bronson, J.</p> <p>The provision of the statute, (1 R. S. 514, § 57,) prohibiting the laying out of a road through yards or enclosures, extends as well to yards and enclosures neces. sary to the use and enjoyment of a dwelling house, as to those connected with « fixtures or erections for the purposes of trade or manufactures."</p> <p>On motion for a mandamus to compel commissioners of highways to take the necessary measures for opening a road previously laid out by their predecessors in office, it appeared, that the road was laid out through the door-yard of S., leaving his well, cow-shed and part of his com-crib in the street; that it encroached also upon the garden of another person; that neither of the owners had consented to the proceeding; and that, on appeal to the judges, the determination of the com. missioners was affirmed. Held, that the whole was void on the ground of ex. cess of jurisdiction, and that the mandamus should therefore be denied.</p> <p>Even had it appeared that the points upon which jurisdiction depended were pass, ed upon by the commissioners and judges, quere, whether their respective decis. ions would have operated to conclude against collateral impeachment.</p> <p>The case of Brittain v. Kinnaird, (1 Brad, Bing. 432,) commented on and doubted.</p>

On the 16th day of April, 1841, the defendants Cowden and Boyd of the state of Pennsylvania, and St. John of the state of New-Jersey, as their surety, executed to the plaintiffs a bond in the penalty of $50,000—conditioned to pay $25,000—and a warrant of attorney, directed “ to Thomas D. Smith, Esq. attorney of the court of common pleas at Philadelphia, in the county of Philadelphia, in the state of Pennsylvania, or to any other attorney of the said court or of any other…

<p>On motion for a mandamus or prohibition, the only question made by the counsel was, on the power of referees to adjourn the hearing of a cause pending before them.. John Osgood was plaintiff and the relator was defendant in an action pending in the New-York C. P., which was referred to three referees. The first meeting of the referees was on the 17th day of February, 1842, which was in the January term of the court. After examining one witness, the referees, on the defendant’s motion, adjourned the hearing to the24th of February. On that day only two of the referees attended, and a new notice was given for the 7th of March. Upon the last mentioned day, after examining two witnesses, the referees, on the defendant’s motion, adjourned to the 15th of March, when the defendant again applied for an adjournment, which was granted on payment of costs, to the 18th day of March, being the last day but one of the February term. On that day the referees met and continued the examination of the plaintiff’s witnesses until near midnight, and then adjourned to the 24th of March. This adjournment, which went beyond the term¿ was not asked for by the plaintiff, and the defendant made no objection, though he ¿aid he could not consent to it. On the 24th, the plaintiff’s evidence was closed, the defendant not attending. The referees then adjourned to the 29th of March, to give the defendant an opportunity to produce his witnesses, on the supposition that he might have forgotten the day and for that reason had not attended on the 24th. Notice in writing was given to the defendant for the meeting of the 29th, but he did not attend, and the referees soon afterwards made their report for the plaintiff. The defendant moved to set aside the report for irregularity, which motion was denied by the C. P.</p>

Motion to set aside fi. fa. The plaintiffs perfected judgment in their favor on the 18th day of July, in July term, 1842, and within five days afterward caused a fi. fa. to be issued in the form used prior to the “ act concerning costs,” &c. passed May 14th, 1840. The writ was made returnable at the succeeding October term.

<p>Where a writ of error was allowed three months after judgment, and an order made and served staying proceedings; held, a supersedeas oí execution, though the sheriff had previously levied.</p> <p>The rule, however, was otherwise previous to the enactment of the revised statutes.</p>

<p>Motion for judgment as in case of nonsuit, for not proceeding to trial at the last June circuit in Washington county.</p> <p>The motion was opposed on the ground that the defendants were sued in their corporate capacity, and though issue was joined in the cause while they were in office, yet, before the last circuit, other commissioners were elected in their stead, and had in fact succeeded them.</p>

<p>Where a new trial is granted on motion of a plaintiff in ejectment, the court will, at the same time, if reasonable grounds be shown, give him leave to amend by in. serting the names of additional plaintiffs, with proper counts; and this, whether the new trial be granted under the statute, or for cause.</p>

<p>Where the holder of a joint and several promissory note sues all the makers in one action, without naming other parties, he is not at liberty to sever and take judg ment against one.</p> <p>In such case, a joint plea of the general issue, though verified by an afiidavit of only one defendant, is sufficient to prevent a default against him not only but all the rest.</p> <p>Whether the same mode of verification be not allowable even where the right of severance exists, quere.</p> <p>Though a plea served be defectively verified, the plaintiff cannot treat it as a nullity and proceed to a default, unless he have previously notified the opposite attorney of the defect.</p>

Nuisance. At the Onondaga general sessions in August, 1841, the defendants, twenty-seven in number, were indicted for a nuisance.

P. On appeal from the judgment of a justice of the peace to the C. P. the case was this : Grinnell brought an action on the case against Cook, who was a deputy sheriff, for taking and selling five horses on an execution against William Tyler, without paying the plaintiff’s bill for keeping the horses. The plaintiff was an innkeeper in the village of Orville. Tyler lived in the same village, about forty rods from the plaintiff.

Assumpsit tried before Ruggles, C. Judge, at the Dutchess, circuit, in March, 1841. The plaintiff gave in evidence a promissory note to which the names of the defendants were affixed,, as follows : “ $500. Sixty days.after date we promise to pay to the order of Raymond & Hodges at. the Farmers and Manufacturers’ Bank-in Poughkeepsie; five hundred dollars, value received. May* 16, 1836. (Signed) Silas- E. Haight, Jacob DeGroff, Wan.

Eirkpb. to the Oneida C. P. Randall sued Smith and others before a justice, and declared in trespass for taking a wagon, and upon issue joined he recovered a judgment, from which the defendants appealed to the C. P., where the cause was tried in March, 1841. The plaintiff proved the taking and sale of the wagon in the fall of 1839.

P. The plaintiffs in error sued the defendants in error before a justice by summons returnable April 6th, 1839. The parties appeared 'and joined issue, and the cause was adjourned by consent to the 13th of April. On the 6th, the plaintiffs gave the defendants written notice of an application to be made to the justice on the 13th, for a commission to examine witnesses.

Assumpsit, tried at the Oneida circuit in April, 1842, before Gridley, C. Judge. The action was on a policy of insurance bearing date the 19th of June, 1838, by which the defendants undertook and promised to insure the dwelling house of the plaintiff against fire, for the term of five years. The dwelling house was destroyed on the 19th of February, 1841, by a fire which originated in a building adjoining it on the north, owned by another person.

<p>Error to the Onondaga common pleas. Russell recovered judgment before a justice against Cook and Smith on a promissory note made by them, payable to Sanford B. Palmer or bearer, for |68,34, with interest, and bearing date April 4th, 1836. The note fell due in July, 1837, and was transferred to the plaintiff after that time. The defendants insisted that the note was without consideration; and, after judgment before the justice, they appealed to the common pleas. On the trial in the latter court the following facts appeared : The note was given on the compromise of a claim made upon the defendants by said Palmer and one Noble, for damages done to a cargo of barley, in which Palmer & Noble claimed an interest. The barley was damaged in the fall of 1835, while in the course of transportation in the defendants’ canal boat from the store of Palmer & Noble, Manlius, Onondaga county, to one Taylor, who resided at Albany. Palmer & Noble purchased the barley for Taylor with funds furnished by him ; he to allow them a commission of twelve and a half cents per bushel for buying and delivering at Albany, and they assuming the risk of transportation. Palmer & Noble contracted with and paid the defendants for the transportation. The defendants owned the boat in which the barley was transported ; and the evidence showed them to be common carriers. The damage to the barley occurred in passing another boat at a place where a stone happened to be in the canal of such a size that the boat struck it. There was a slight collision with the other boat, and the defendants’ boat was so broken or strained, by striking its bottom against the stone, as to let in the water and sink it in a short time. Testimony was given on the question, whether the defendants had been negligent in the matter ; whether the accident was in any degree caused by meeting the other boat, and whether proper efforts were made to prevent the boat sinking after the accident happened, &c. It was shown that the place was peculiarly liable to obstructions from stones rolling into the canal; and that while there, the boatmen having no knowledge of the fact, as was the case in this instance, such accidents could not well be avoided. It appeared from the evidence given by the defendants that, after considerable negotiation with a view to a settlement between them and Palmer & Noble, they finally agreed to divide the loss; that thereupon a true statement of the entire amount was made out, and the defendants gave their notes for one half of it; that the note in question was among the notes thus given.</p> <p>The court below were in effect requested to charge, among other things, that the facts proved did not show the note to be without consideration, and that the plaintiff was therefore entitled to recover. The court refused so to charge ; whereupon the plaintiff excepted. After verdict and judgment for the defendants, the plaintiff sued out a writ of error.</p>

On a second trial of this action, (see 1 Hill, 497,) before Gridley, C. Judge, the by-laws of the company were given in evidence, which provide, among other things, that “ when buildings are mortgaged at the time they are insured, the mortgagee may have the policy assigned to him on Ms signing the premium note, or giving security for the payment of the same ; and any agent, director, or the secretary, when application shall be made to him, shall be authorized, upon said…

Ejectment, to recover the equal undivided half of a farm containing eighty acres in the town of Warren, Herkimer county, tried before Willard, C. Judge, at the Herkimer circuit, in April, 1841. The plaintiff gave in evidence a deed to himself from John Osterhout for an undivided half of the eighty acres, dated April 9th, 1810. The deed was proved October 9th, 1838, but had not been recorded.

Assumpsit, tried at the Onondaga circuit, in April, 1842, before Moseley, C. Judge. The plaintiff was the holder of a promissory note for $100, dated Syracuse, January 10, 1837, made by Silas Ames, and payable sixty days after date to the order of Elijah C. Rust, at the Salina Bank. The note was endorsed by the payee.

<p>If the attorney on record illegally issue afi.fa. and thereby render himself liable in trespass, his client is also liable.</p> <p>In trespass against the client it is not necessary, for the purpose of connecting him with the levy, to show that he specially directed the issuing of the ft. fa.</p> <p>One party to afi.fa. cannot justify under it in an action by the other,without showing the judgment as well as the fi. fa.; though tire latter alone is enough for the sheriff</p> <p>Where, in such case, the fi. fa. purported to have issued on a decree in chancery made by the court of common pleas of Huron county, Ohio, and one of the plaintiff’s witnesses testified, on cross-examination, that the suit in which the fi. fa. issued was conducted in a court of record—viz. the court of common pleas of Huron county, cj*c.—that the process, bill of complaint, answer, proceedings and decree, were matter of record in said court, fyc.: Held that, the evidence having been received without objection, it was sufficient, when taken in connection with the fi. fa., to prove the decree to have been regularly made and enrolled.</p> <p>And though the officer who made the levy testified that ho afterwards discharged it under an order entered of record in the common pleas of Huron county ; Held, not evidence that either the decree or fi. fa. had been set aside for irregularity.</p> <p>A plaintiff in a judgment and execution who seeks to justify under them must plead the matter specially, and cannot give it in evidence under the general issue. Per Cowen, J.</p> <p>But if at the trial the matter be proved under the general issue without objection, the question as to its admissibility cannot be raised on error.</p>

P. Rood and Kimble, overseers of the poor of the town of Dix, sued Deyo before a justice of the peace to recover the penalty given by 1 R. S. 680, § 15, for selling spirituous liquors without license.

Miller sued Woodworth in a justice’s court, and declared orally on the general counts in assumpsit. The plea was in writing.

<p>Case, tried at the Westchester circuit in April, 1842, before Rtjggles, C. Judge. The first count of the declaration averred that on See. the plaintiffs were, and for a long -time before -had been and still were possessed of a certain close, with the appurtenances, situate in Yorktown, Westchester county, near and in part adjoining Sec. the Croton river—that before and at the time of the committing of the grievances thereinafter mentioned, the plaintiffs of right had and enjoyed the benefit and advantage of the said river—that before &c. at &c. they were possessed of a certain dam- in the bed of said river, by means whereof the water was of right caused to flow into and drive certain mills of the plaintiffs—that they were possessed of other buildings standing upon the said close, in and about which was a large quantity of household furniture and other personal property belonging to them : Yet the said defendants well knowing &c.., but contriving &c., to wit, on &c. wrongfully, unjustly, ignorantly and unskilfully, built and constructed across the said river, at a point above the said close, Sec, a certain dam, which, by reason of the mere negligence, unskilfulness, ignorance and carelessness of the defendants, their agents and servants, in the construction and maintenance thereof, and for no other cause, afterwards, on &c. was swept away by the waters of said river that had accumulated therein to the height of 150 feet beyond the usual and ordinary height of the same, &c. destroying the soil of twenty acres of the said close, and demolishing and carrying away the plaintiffs’ dam, floom, sluices, mills, machinery, buildings, furniture Sec. Sec. The other counts in the declaration contained substantially the same allegations. Plea, the general issue.</p> <p>It was admitted, at the trial, that on the 8th of January, 1841, and for a long time previous to the construction of the defendants’ dam, the plaintiffs were jointly possessed of the lands and personal property mentioned in the declaration. The plaintiffs read in evidence certain acts of the legislature in respect to supplying the city of New-York with pure and wholesome water; viz. an act passed February 26th, 1833 ; one passed May 2d, 1834; another passed May 5th, 1837 ; another March 29th, 1838; another April 27th, 1840 ; and another May 26th, 1841. It was further admitted that Stephen Allen and four others were appointed water commissioners under the act of ^ May 2d, 1834, and that they continued in office until March, 1840. The plaintiffs gave in evidence a report of the commissioners made in pursuance of the last mentioned act, dated February 16th, 1835. This report proposed, among other things, that a dam should be erected across the Croton river at the place where the one complained of was built. The plaintiffs also gave in evidence a report of the joint committee of both boards of the common council of the city of New-York to whom was referred the report first mentioned. The report of the committee was dated on the 4th of March, 1835. The plaintiffs then introduced in evidence the following resolutions adopted by the common council, and approved by the mayor on the 11th of March, 1835 : “ Resolved, That the plan adopted by the water commissioners for the city of New-York for supplying the city of New-York with a sufficient quantity of pure and wholesome water for the use of its inhabitants, and described in their report made to the board of aldermen on the 16th day of February last, be and the same is hereby approved. Resolved, That a poll be and hereby is appointed to be opened on the days upon which the next annual election for charter officers for this city is by law appointed to be held, to the end that the electors may express their assent or refusal to allow the common council to proceed in raising the money necessary to construct the works as aforesaid, by depositing their ballots in a box to be provided for that purpose in their respective wards according to the provisions of the act 1 to provide for supplying the city of New-York with pure and wholesome water,’ passed May 2d, 1834.” The plaintiffs further gave in evidence the certificate of the board of canvassers at the said ele’ction, by which it appeared that a majority of the electors were in favor of the measure thus submitted to their decision. The plaintiffs then introduced in evidence an ordinance of the common council, approved by the mayor on the 7th of May, 1835, entitled “ A law.to instruct the water commissioners to proceed in the work of supplying the city of New-York with water, and to create a public fund or stock to be called ‘ the water stock of the city of New-York’ for the expenses of said work.” The first section of the ordinance instructed the water commissioners to proceed with the work according to the plan proposed by them in pursuance of the act of 1834. The second section authorized the creation of stock for a loan of $2,5QO,000. The other sections, except the 8th and 9th, declared the manner in which the loan should be raised &c. The 8th section provided that the comptroller should pay out the moneys thus to be raised, on the order of the water commissioners, for the expenses of the work. The 9th section directed that all the revenue derived from the water to be procured by said work and furnished to the inhabitants of the city, should be appro priated as a sinking fund towards the redemption of the said stock. The plaintiffs gave in evidence two other ordinances of the common council, providing further means to carry on the work ; one of which was passed and approved in May, 1834, and the other in April, 1838. The plaintiffs offered in evidence three other reports made by the water commissioners to the common council in pursuance of the several acts of the legislature before read in evidence; viz. one made in January, 1838, another in January, 1841, and the third in July, 1841. These were objected to, but admitted. The plaintiffs also gave in evidence a deed in fee, executed by Wilhelmus Garretson and others, dated July 11th, 1835, conveying to the defendants one hundred and five acres of land lying above the plaintiffs’ premises on both sides of the Croton river, upon which land the dam complained of was erected. The plaintiffs then offered to prove a certain contract between the water commissioners and Crandall & Van Zandt, whereby the latter agreed to build the dam in question according to certain plans and specifications thereto annexed, in pursuance of which contract the dam was constructed; also a bond given by the said contractors with sureties, to the defendants, in the penal sum of $21,000, conditioned that the contractors should well and faithfully perform their said contract. This evidence was objected to, but received. It was admitted that the water commissioners were paid for their services by the defendants out of the funds raised to carry on the work. The plaintiffs further offered to prove that the dam in question was negligently, unskilfully and carelessly constructed ; and that, by reason of gross negligence, unskilfulness and carelessness in the construction of it, and for no other cause, the dam was, on the 8th of January, 1841, swept away and destroyed by a freshet; that thereby the real and personal property of the plaintiffs, situate upon the banks of the river below the dam, was destroyed to the value of $60,000 and upwards ; and that the dam, before being carried away, had been accepted as complete and paid for by the water commissioners. The defendants objected to the proposed proof, insisting as matter of law that if admitted the action could not be maintained, inasmuch as, 1. The plaintiffs had no remedy by action on the case at common law against the defendants for the alleged negligence in the construction of the dam; the same having been entirely under the management of the water commissioners appointed by the governor and senate, and not subject to the control of the defendants ; and 2. The only remedy of the plaintiffs for their damages was by an appraisement of the same pursuant to the provisions of the act of May 2d, 1834. The circuit judge rejected the evidence offered, and directed a nonsuit. The plaintiffs excepted, and now moved for a new trial on a bill of exceptions.</p>

Case against a warehouseman, tried at the Albany circuit, in October, 1840, before Cushman, C. Judge. It appeared on the trial that, in December, 1838, several boxes of furniture, clothing, &c. belonging to the plaintiff, and worth $570,89, were deposited with the defendant, a warehouseman and oil merchant, to be stored for hire.

On demurrer to avowries in replevin. The first, second and third counts in the declaration were for taking &c. certain property belonging to the plaintiffs, to wit, oats, potatoes, cattle, horses &c.; alleging the taking to have been on the 11th of August, 1841, from a farm &c. The fourth count was for taking &c. a large number of sheep, on the same day mentioned in the other counts, from a farm owned by one Luke Hitchcock.

Case, tried at the Schoharie circuit, October 27th, 1841, before Cushman, C. Judge. The action -was brought against Southland, sheriff of Wayne county, for not returning a fi. fa. issued on a judgment in this court in favor of the plaintiffs, Corning & Horner, against one Copp. The fi. fa. was issued by W. D. White as attorney for the plaintiffs, with directions endorsed to levy and collect $688,22. It was made returnable sixty days from the receipt thereof by the sheriff.

Demurrer to declaration. The action was debt, to recover a sum of money which the defendant had been ordered to pay to the plaintiff on the granting of a special motion by the Madison C. P. The declaration contained averments showing the nature of the motion, the decision of the court thereon, the taxation of the costs, &c. It was also alleged that by reason of the non-payment of the costs on demand, an order for an attachment was granted, but that since that time the…

<p>Assumpsit for money had and received, tried at the Orleans circuit, in October, 1841, before Dayton, C. Judge. The plaintiff claimed to recover a sum of money alleged to have been paid to the defendant by mistake. On the trial, the case was this ; About the 1st of January, 1838, the defendant endorsed and delivered to the Merchants and Mechanics’ Bank of Troy, for collection, á promissory note for $483,50, made by A. A. Hall, payable to the defendant or order six months after date, at the City Bank of Buffalo, and dated October 1st, 1837. In February, 1838, the cashier of the Merchants and Mechanics’ Bank of Troy endorsed the note and transmitted it for collection to the plaintiffs, whose cashier soon afterwards endorsed and sent it by mail to the Commercial Bank of Buffalo for the same purpose. No notice of protest having beep received by the plaintiffs’ cashier, he supposed the note had been paid; and accordingly, on the 14th of April, 1838, he sent to the Merchants and Mechanics’ Bank of Troy a draft for the amount of the note, the avails of which were paid over to the defendant. Some three weeks afterwards, the plaintiffs were informed that the note had not been received by the Commercial Bank of Buffalo; nor paid to them. Enquiry was then made, which resulted in satisfying the plaintiffs that the note had been lost in the course of transmission by mail. The plaintiffs thereupon advised the Merchants and Mechanics’ Bank of Troy of the circumstances, and claimed to have the amount of their draft refunded. The cashier of the latter bank communicated the facts to the defendant, who refused to return the money; whereupon this action was brought. The evidence ténded to show that Hall, the maker of the note, was utterly insolvent when it fell due, and that he had so remained ever since. The note was produced on the trial by a clerk of the Commercial Bank of Buffalo, who testified that he received it from the president of the bank a few days before, but did not know how or when the president received it. Evidence was given upon the question whether the last mentioned bank had not in fact recéivéd the note,’and‘been guilty 'of negligence in regard to the collection of it. The defendant’s counsel moved for .a nonsuit, on the ground that the plaintiffs’ remedy, if any, was against the Merchants and Mechanics’ Bank of Troy, there being no contract express or implied between the plaintiffs and the defendant. The circuit judge overruled the motion, and the defendant’s counsel excepted. The judge charged the jury that the plaintiffs were responsible for the negligence, if any, of the Commercial Bank of Buffalo ; and that if the jury should be of opinion there had been negligence either on the part of the plaintiffs or the Commercial Bank, they ought to find a verdict for the defendant, unless they believed that Hall, the maker of the note, was insolvent when it became due. That if they found the fact of such insolvency, and that the defendant had therefore lost nothing by the neglect or delay of the plaintiffs or their agent, they were entitled to recover. The defendant’s counsel excepted to that part of the charge relating to the effect of Hall’s insolvency. The jury rendered a verdict in favor of the plaintiffs for the amount of the note and interest; and the defendant now moved for a new trial on a bill of exceptions.</p>

Assumpsit, tried at the Onondaga circuit, in October, 1841, before Moseley, C. Judge. The action was on a promissory, note bearing date November 27th, 1835, payable to bearer, made by the defendants and transferred to the plaintiff by Isaac Hovey, the payee.

Demurrer to plea. The declaration was in trespass for entering upon the plaintiffs’ premises, situate &c., digging up the soil &c., placing thereon large quantities of timber &c. The defendants pleaded, in substance, that the premises on which the trespass was alleged to have been committed were a public highway—that the defendants’ rail road was laid out over and across said premises—that, by their act of inóorporationj,(Sess.

Demurrer to plea. The declaration was in debt upon a recognizance dated November 17th, 1840, in the penal sum of $1000, conditioned that one Rowley should personally appear at the then next court of general sessions of Livingston county to be held in January, 1841, to answer to an indictment for grand larceny.

<p>Words spoken in reference to a judicial proceeding and which impute false swear, ing to one of the witnesses—e. g. “ he has sworn false to my injury six or seven hundred dollars"—amount to a charge of perjury, and are therefore actionable per se.</p> <p>In an action for words of this character, the •materiality of the testimony in reference to which they were spoken, though averred in the declaration, need not be proved, but will be presumed.</p> <p>As a general rule, it is to be intended that what a witness has sworn to is material Per Cowen, J.</p> <p>In slander for words charging false swearing in a judicial proceeding, if the words themselves were not so qualified as to come short of imputing perjury, it will be no defence that the testimony in reference to which they were spoken was immaterial. Per Cowen, J.</p> <p>Where the words in themselves amount to a charge of perjury, the plaintiff need not show that a suit was pending, or that the words referred to any suit in particular. Per Cowen, J.</p> <p>A pending suit and a colloquium respecting it are only necessary in those cases where, without them, the hearer would be left in doubt whether the oath of the plaintiff might not have been voluntary. Per Cowen, J.</p> <p>The case of Bulloch v. Coon, (9 Cowen, 30,) commented on and explained.</p> <p>In slander for words charging the plaintiff with having sworn falsely in a pending suit, the declaration averred the suit and a colloquium respecting it, but omitted the name of one of the defendants ; and, at the trial, the circuit judge refused to regard the variance. Held, that he did right.</p>

Replevin, for taking a mare, tried at the Chenango circuit, in April, 1841, before Monell, C. Judge. The summons was served on the 18th of July, 1840, and the declaration alleged the taking to have occurred on the 17th. The plaintiff, Christopher D. Sharp, was in possession of the mare on the 13th of March, 18401 and on that day the defendant, a deputy sheriff, acting under a fi. fa. against George Sharp, seized her, but she was not then removed.

Replevin, tried at the Cayuga circuit, in October, 1841,before Moseley, C. Judge. The plaintiffs were merchants in the city of New-York. They alleged that on the 14th of October, 1840, Robert Muir, being insolvent, fraudulently represented himself to be the agent of one Bennett, and thus got the goods in question of them in Bennett’s name. Muir signed a note for the price in Bennett’s name, and the goods were charged on the plaintiffs’ books to Bennett.

Assumpsit, tried at the Cayuga circuit on the 12th of October, 1841, before Moseley, C. Judge. The action was on a promissory note for $130 and interest, made by the defendants, and payable to David D. Waite or bearer, on demand. One Grimshaw testified at the trial that he purchased the note of the payee, within a week after its date; that he kept it two, three or four weeks, when the plaintiff’s brother paid him the money on the note, and witness let him have it.

P. Manrow sued Durham and Moulthrop before a justice, and on the trial in the C. P., where the cause had been removed by appeal, the plaintiff gave in evidence a promissory note as follows: “Verona, July 1st, 1839. On the first day of January next I promise to pay C. P. Durham or bearer forty dollars, value received, with interest.

Assumpsit, tried at the New-York circuit, in March, 1842, before Kent, C. Judge. Held: that the seventy-two shares should be allowed at the price for which the defendants sold them. An estimate of the two hundred and fifty shares was then made accordingly; and the jury, under the direction of the circuit judge, gave a a verdict in favor of the plaintiff for the balance found due after deducting the amount of the note.

On the return 'to an alternative writ of mandamus, the case was ¡this : In April, 1840, an act was passed‘declaring that “ it shall be the duty of the canal appraisers, subject to the provisions of law respecting other canal appraisements, to appraise the damages sustained” by the relators by reason of the resumption of the surplus waters leased by the canal commissioners to Ichab.od S. Spencer and Eber Durham” in 1827; “ and ¡the sum awarded and finally settled shall be…

P. Drake brought an action of trespass quare clausum fregit against Rogers before a justice of the peace. The defendant pleaded title, and the plaintiff thereupon sued in the C. P. The trespass complained of consisted in removing a fence which the plaintiff put up across a road in the town of LeRoy, Jefferson county ; which fence the defendant removed in the spring of 1840.

<p>A misjoinder of counts in a justice’s court is not ground for reversal upon certiorari unless it appear that the objection was taken before the justice.</p> <p>If testimony which is inadmissible be objected to on untenable grounds, and the true ground be not mentioned, the latter will be deemed waived.</p> <p>Accordingly, where, on the trial of a cause in a justice’s court, a question put to one of the witnesses was objected to on untenable grounds, and the objection overruled; held, that though the question was improper upon grounds not taken at the trial, the party was remediless on error.</p>

On error to the New-York common pleas. Furze brought an action on the case in the court below against the mayor, aldermen and commonalty of the city of New-York, averring in his declaration, that he was the owner and occupant of a building situated upon Pearl street in said city, wherein he carried on the business of a u baker and confectionerthat there were certain basins, culverts and sewers in said street, designed for conducting and carrying off the water running in and…

P. Simpson sued Watrus before a justice, and declared in trespass de bonis &c. Plea, the general issue. Joseph Patterson, a constable, was sworn for the plaintiff, and testified that, by the direction of the defendant, he took the goods in question from the plaintiff’s possession and sold them. On cross-examination, the defendant put several questions to Patterson, the answers to which might disclose that he took the property under an execution.

Renwick sued Morris in the court below in trespass, for tearing away a part of the plaintiff’s dam over the Harlaem river, a navigable stream. The dam was built under an act passed April 8th, 1813. (Webst. áf Skin. ed. Laws, a. 161.) The act authorized Robert Macomb to build the dam ; and, at the time of the alleged trespass, it had stood more than twenty years. The right to the dam had been acquired by the plaintiff.