Volume 3 — Johnson's New York Reports

THIS was a case of escheat, and came before the court on a case made and agreed upon by the counsel for both parties# The following are the material facts in the case: On the 16th of June, 1798, a writ of escheat issued out of the court of chancery, in the usual form, and an inquisition was thereupon taken by the sheriff of the county of Orange, on the 25th of June, 1798, which stated, that John Gatehouse, at the time of his death, was'seised in / fee of a certain parcel of…

<p>Where a partition was made by the proprietors of Klock'a patent, and a survey and map made for them, and possession taken accordingly, by the several proprietors, it was held, that, after a lapse of forty years, the parties were concluded from contesting with each other, the correctness of the actual locations.</p>

<p>Lot no. 50, in tne second aliotment of Stone arabia patent, according told the survey of madePbynjS«idrick Frey, in if54, and as designated and described by that survey.</p>

ON the 9th day of May, 1805, an order was made by the special justices of the city of New-York, on the application of the overseers of the poor of the said city, * charging Peter Wynkoop, the reputed father of a bastard child, born of Sarah Waring, with the payment of one dollar and twenty-five cents weekly, for the sustenance of the said child.

ON the return to the certiorari directed to the justices court in the city of New-York, the following facts appeared» The defendant in error brought his action against the plaintiff in error, in the court below, to recover his wages as a mariner, on board of a vessel of which the plaintiff was master, on a voyage from New-York to Bayonne, and back to New-York.

IN August term last, a motion was made to set aside the execution issued in this cause, to the sheriff of Delaware, and which had been levied on a lot of land, that had been previously purchased from the defendant, by one Me Nee.

THIS cause came before the court on a return to a certiorari from the court of general sessions in Dutchess ° . county. An appeal had been made to the sessions, from an order of bastardy made by two justices of the peace.

THIS was an action of debt, for the penalty of 500 dollars. The cause was tried at the circuit, held in Greene county, before Mr. Justice Spencer, the 3d December, 1806.

<p>THE declaration in this cause was for a libel published the 18th day of November, 1803. The declaration was entitled of November term, generally, and the memorandum was of the second Monday of November, being the 14th day of that month, or the first day of the term. There was. a general imparlance to November term, 1805, when the defendant demurred to the declaration, and the plaintiff joined in demurrer.</p> <p>The declaration must always be entitled after the cause of action accrued, and not of the term generally.* Where the cause of action arises after the first day of term, there should be a special memorandum of a subsequent day. The only question is, whether the defendant can take advantage of this fault on a general demurrer. In Venables v. Daffe,† there was a general memorandum, and the defendant moved in arrest of judgment, because, the cause of action arose after the commencement of the term, and the judgment was arrested. Now, it is a general principle, that whatever is sufficient to arrest judgment, would, on a general demurrer, be sufficient to overturn the action.‡ In the case of Lowry v. Lawrence,§ though decided on a special demurrer, the court considered the objection as substantial and fatal. It is an established rule, that the plaintiff must state a cause of action, anterior to the commencement of his suit. This is essential, and the want of it will be fatal on a general demurrer.</p> <p>contended, that the objection was merely formal, and that the defendant could only take advantage of it, on a special demurrer.</p>

<p>In an action of debt, for rent, . due on the lease of a house, it •was held, that the destruction of the premises by fire, would not excuse the lessee from the payment of the rent, according to his covenant.</p>

THIS was an action on an open policy of insurance, on freight, of goods laden on board the ship Olive, on a voyage from New-York to the river La Plata, and at and from thence to a port in Europe. Held: that the charter-party made an entire contract, and that the policy attached at Dominica, ívhile the vessel was delivering her outward cargo, though no part of the homeward cargo was shipped.

<p>In an action for fen dan t 'suffer - ed a judgment by default, for want of a plea; inquiry oTdaf mages, was ex-aCjudge, atthe circuit. On a motion to set aside the assessment of wa™held, that by the interlocutory jud^of the publication of the 11-^'th^f^th^6’ nuendoes were admitted ; that the defendant is not to be allowed to call the attention the^otiiei*11 "ary graphs contained in the publi%rent’ of the libellous words, than the*" pfaintiff^ and that the defendant could not offer in evidence, m mitigation of damages, the recovery of .. damages in favor of"the plaintiff, against the defendant, in another action for a libel, and which formed one of a series of numbers published in the same paper, and which contained the same libellous words, as were charged in the declaration in this suit.</p>

THIS was an action on an Inland Bill of Exchange, drawn hy t^le defendant on Adams, Merrit Co. in favour of the plaintiffs, payable 60 days after date, for two hundred and . , , „ seven dollars and seventy-six cents, dated the 10th day of Jutyi 1804. The bill was accepted by the drawees. At the trial, the signature of the defendant, and of the . , . acceptors, was admitted, and that due notice oi non-Payment> had been given to the defendant.

<p>M & S being cbc^mstaimes^ onthe 15th April, 1800, executed a conveyance of certain lands, which, by a declaration in writing, executed by them, on the 31st May, 1800, they declared to be in trust, to pay particular creditors, in preference. On the 13th June, 1800, they drew an order on one F, their agent, directing him to pay to R, such monies as should come to his hands, from certain persons in Europe, from whom F had been authorised to receive the amount of certain policies of insurance, which order was accepted by F,,on the same day, to pay the monies as soon as they came into bis hands. On the 11th July, 1800, M & S committed an act of bankruptcy, and on the 18ih July, 1800, were duly declared bankrupts, under the law of the United States, which took effect on the 1st June, 1800. In an action brought by the assigness of M & S, against F, it was held, that the order and acceptance amounted to an assignment, and fixed the fund irrevocably, and that the order was not given in contemplation of bankruptcy, so as to make it fraudulent under the bankrupt law.</p>

STEWART, for the defendants, moved to set aside , . the scire facias issued m this cause, and all the subsequent proceedings thereon. The following are the material facts, as stated in the affidavits, which were read. A judgment having been obtained in favour of the plaintiff, aSa'mst Crosby, on a demurrer to the declaration, in August term, 1805, the same was signed the 16th August, 1805, and was revived, the 15th February, 1807.

THIS was an action on a policy of insurance on-goods, fyg bales of cassia and 67 bags of cocoa) on board the ship Toung Eagle, from New-Tork to Bourdeaux. Held: in New-York, before Mr. Justice Thompson. A verdict was taken for the plaintiff, subject to the

GOLDEN, at the last term, in behalf of the plaintiff, moved to amend the record in this cause, 1. By inserting the words, “ at the city-hall, in the city of New-Tork” in the memorandum, next after the words, “ before the justices, See. of the same people,” and striking out the words “ here,” after “ brought.” 2.

THIS was an action of assumpsit. The declaration contained three counts, The first count stated that, on the 28th June, 1804, and before that time, and until the ¿eath of one Watson Brown, the plaintiff, one Israel Un- ’ 1 derh ill, and the said Watson Brown, were joint owners oi a cel tain sloop, or vessel, called the Rising Sun; that the plaintiff, the said Underhill and W. Broxvn, agreed together that they should be sharers in the earnings and profits, *osses an The…

THIS was a special action on the case. The declaration was in substance, as follows : The plaintiff was owner of the American ship, the Factor, of w'hich one Caldwell was master, on the 5th June, 1805.

THIS was an action of ejectment, for lands in the village of Newburgh, in the county of Orange, The cause was tried at the Orange circuit, before… Held: in pursuance of the said notice, a large majority of the inhabitants of the said patent, who assembled to vote, were excluded from voting, because they were not episcopalians, and for that reason only. None but episcopalians, who constituted about one-tenth part of the inhabitants, were allowed to vote at the said election.

<p>In order to fnfo^cm-itempE íór the non- ‘ payment of costs, the pertSedfiillf &c. must sho-w to authority to receive the costs.'</p>

moved to set aside the execution, which had been issued in this cause, on a judgment, entered by warrant of attorney on a bond, which , . .. . . the defendant, m his affidavit, alleged to have been given for a usurious consideration. read the affidavit of the plaintiff, explaining the transactions between the parties, but which did not expressly deny the allegation of usury.

moved to change the venue, in this cause, from the county, of Albany, to the county of Oneida. The action was for a libel, stated to have been published by the defendant, in a paper printed at Utica, in the county of Oneida, where the defendant resides. It was stated, that the cause of action, if any, arose in Oneida county, and that the defendant had a number of witnesses in that county, and also in the county of Herkimer.

THIS cause was argued at the last August term, on a case which had been settled by the judge, before whom the cEpise had been tried ; but no decision had yet been given by the court.

ON error from the court of common pleas, of the county of Ulster. L. Jdlmendorf for the plaintiff, in error, ° 1 7 moved that a -certified, copy of the capias ad satisfaciendum, issued in the court below, and copies of two rules entered there, should be annexed to the return to the writ of error, in this case, which had been directed to that court,

<p>moved to set aside the judgment and execution in this cause; 1. Because, the judgment was entered up on a bond and warrant of attorney, which were forgeries, 2. For irregularity.</p> <p>The bond was dated the 13th of October, 1787, and payable on demand. The warrant of attorney, was dated at the same time, and authorised the attorney to enter up judgment on the bond, “ in term or vacation and the judgment was entered up, in the vacation, as of the preceding term of August.</p> <p>As to the irregularity, they cited Strange, 1121. 8 Term, 153. 1 Mod. 1. 7 Mod. 5. Siderfin, 222. 1 Term, 80. 1 Ventris, 113. 1 Crompton, 381. 1 Tidd’s K. B. Prac. 497.</p>

THIS was an action for a libel. Rudd,, in behalf of the defendant, moved for leave to strike out the notice annexed to the plea of not guilty. observed, that he had no objection to the granting of the motion, if the defendant would make affidavit of the falsity of the facts stated in the notice, which he said was far more libellous than the publication complained of in the plaintiff’s declaration; otherwise, he contended, the whole ought to appear on the record, that a jury…

SPECIAL bail having been filed in this cause, the defendant presented his petition, stating, that he was “ a resident of the state of New-Jersey, and that he was desirous of removing; the cause into the next circuit court ° . . of the United States, to be held in and for the district of New-Tork, in the second circuit,” and offered sufficient ’ ’ security for entering in the said court, on the first day of . . -i-t ,• , r its next session, true copies oí the proceedings, and…

moved for a retaxation of the costs, and to set aside the judgments of nonsuit entered in four other causes between the same parties, pn , the ground of irregularity. It appeared that five actions of trespass had been brought by the plaintiff against the defendant, which were noticed for trial at the last Ulster . . . . , circuit. One of them was brought on to trial, and the plaintiff was nonsuited.

IN error on certiorari. The defendant in error declared against the plaintiff in error, in the court below, on a certain writing or due bill, as follows : “ Due y. Coddington, 17 dollars and 38 cents, for sheriff’s fees, which I promise to pay, when collected, from the estate of the late John and Cornelius Wynkoop, deceased, &c. “ Newburgh, 2d September, 1799. (Signed) “ Levi Dodge.” The defendant below pleaded non assumpsit, and the statutes of limitation.

IN error on certioraru The plaintiff in error, having r ■ . ° beeti taken by a warrant, issued against him at the suit of the defendant in error: On the 2d of June, 1807, he indorsed, on the back of the warrant, a written request to ... . , . , . „ . the justice, to enter up judgment against him, tor whatever demand the plaintiff should have against him, to the satisfaction of the justice.

■' THIS was an action of ejectment for lands in the county of Ulster. On the trial it was admitted, that Daniel Clarwater1 s attainder should be evidence of t.he attainder of Jacob Clarwater on the day stated in the record : and that , . the lessors ot the plaintiff, were the heirs at law of the said Jacob. That Jacob Clarwater died within the British lines in June, 1777.

THIS cause came before the court on a writ of error, from the court of common pleas of the county of St. Lawrence.

FROM the return of the certiorari, directed to the justices’ court, in the city of Nerw-York, the following facts appeared: The defendant in error, who was the plaintiff below, dedared for wages due to him as a mariner onboard the shin . . Sarah, of which the plaintiff m error, was master, on a voyage from Greenock to Nerw-York.

<p>No action will lie against a person in this jfmíting’a -vrit" «ess to swear causcf in" anothereby» judgment was given against the defendant contrary t?the truth and justiceof thecast*'</p>

THIS was an action of assumpsit. The declaration in the case contained two counts ; the first count was on a special agreement, by which the defendant agreed to take a negro slave belonging to the plaintiff, upon trial for a day or two, and if the negro did not like the defendant for a master, the defendant undertook to return him. The second count was, on the sale of the negro, for the purchase money.. The defendant pleaded non assumpsit.

' THIS was an action of trover. The cause was tried at the last circuit, in the county of Greene, before Mr. Chief Justice Kent-.

THIS, was an action of slander. The cause was tried before Mr. Justice Thompson, at the Oneida circuit, on the 8th of June, 1807. On the trial, the plaintiff proved, that the defendant, in the presence and hearing of C. and D. addressing himself to the plaintiff, said, “ you are guilty of forgery,” and, as stated by a second witness, “ you are guilty of' absolute forgerywhich were the words charged in the declaration.

THIS cause came before the court, on a writ of error from the Ulster court of common pleas. , It appeared from the record that Carpenter declared againstthe administrators of Dumond, stating that the intestate on the 1st January, 1784, was indebted to hint in J J ’ 7 the sum of 200 dollars, for that the intestate was at the time sheriff of Ulster, and as such levied and received the amount of an execution against Afames Mf Masters at the suit of the plaintiff, issued out of…

THIS was an action on the case against the defendant for negligence as an attorney. The cause was tried before Mr. Justice Spencer, at the last Ulster circuit.

THIS was an action of assumpsit. The first count in the declaration stated,-that Robert Livingston, deceased, late proprietor of the manor of Livingston, died seised r Z 07 of a large real and personal estate, and being so seised, in his life-time, did, on the 31st of May, 1784, by will., devise largely to his five sons, of whom J-ohn and Wal- , . . . , , , , , ter were two, and reciting, tnat as he had advanced to his son Walter 4,000 pounds more than to his other three…

THIS cause came before the court on an appeal from an order of the general sessions of the peace of Dutchess county.

THIS was an action for work and labour, and services performed by the plaintiff for the testator. The cause was tried before Mr. Chief Justice Kent, at the Albamj circuit, in October, 1807. On the trial, the following facts were proved. The parents of the plaintiff were about putting him to a trade in 1790, when the testator, who was his uncle, requested them to let him take the plaintiff as his own child, for he would do' better for him than his parents could.

THIS was an action of assumpsit, against the defendaut3i as indorsors of a bill of exchange. The declaration, in substance, stated, that one John Franklin, on , „ , • - - , the 1st of August, 1807, drew his bill oi exchange on. Messrs.

THIS was an action of assumpsit, by the indorsee • , against the drawer oí a bill oí exchange. The bill was drawn in favour of Franklin, Robinson & Co. on Messrs. Held: that it was according to the custom of merchants, and that it was not necessary to state that the holder made inquiry after the drawee. Harison, in reply.

THIS was an action of assumpsit. The first and se^ond counts were upon special agreements, and the third count for money paid, &c. The first count stated, that * on the 20th April, 1801; by certain articles of agreement, ma¿¡e between the plaintiff and one Peter Newkirk, the 1 3 plaintiff sold to the said Newkirk a lot of land,' being lot n0* 9, containing 120 acre's, lying on the Shawangunk Xill. ánd which by articles of agreement, had been sold J ° ’ by James Farquhar to…

<p>Where the owner of land agrees with another that he may sow the land on shares, they may maintain a joint action of trespass against a third person Who cuts and carries away the crop. f If A. buys land with the money of 5. and takes a conveyance to himself, he is a trustee. for B. Such an implied or resulting’trust is not within the statute of frauds, and may be proved by parol ; and the land may be seized and sold on an execution under a judgment against B. the cestui que trust.</p>

THIS was an action of ejectment, for lot No. 39, in the township of Junius. The cause was tried before Mr. Justice Tompkins, at the circuit in Seneca, county, on the 22d June, 1807. Atthe trial, the lease, entry and ouster were confessed, and the possession of the defendant proved.

THIS was an action of ejectment for land in Nexvburgh, in the county of Orange.

THIS was an action of assumpsit. The declaration, which was of November term, 1806, contained five counts for goods sold and delivered, 5kc. money had and received to the plaintiff’s use, ike. There was an imparlance to the first day of February term last, and the defendant pleaded, 1. Non-assumpsit; 2.

THIS was an action of assumpsit. The first count was on a bill of exchange ; the second was for money had and received to the use of the plaintiff. The cause was tried at the Dutchess circuit, before Mr. Justice Thompson, on thé 21st September, 1807. The plaintiff produced and proved the following bill or order : IN CHANCERY, Smith W. Jones J v. >- Statement. Thomas Thorn.

<p>Where A. and B. applied to C. to purchase goods for A. who was recommended by B. and by their direction the goods were sent to B.’s house, who afterwards took a bill of sale of them from A. who absconded without paying C. it was held, that C. in an action of trover against B. might go into evidence to show, that the goods had been obtained from him fraudulently, and by a collusion between A. andB, under pretence of a purchase, for fraud would avoid the contract of sale and that the plaintiff might give evidence of subsequent acts of collusion and fraud by A. and B. to obtain goods from other persons, in order to show the previous intention of A. and B. which the jury might infer from circumstances.</p>

THIS was an action of trespass, assault, and battery* The cause was tried at the Seneca circuit, the 22d June, 1807, before Mr. Justice Tompkins. , The plaintiff and the defendant were in a meadow, which each claimed as his own, and each ordered the other to go out, when the defendant struck the plaintiff with a stick, and a scuffle ensued.

moved to set aside the inquest taken by default in this cause, on-the usual affidavit °f merits.

moved to set aside the inquest taken in this cause, on an affidavit of the defendant, that the inquest was for more than was due to the plaintiff, and that the defendant had a good, legal and substantial defence on the merits. objected that the affidavit was defective in the same points as were mentioned in the preceding cause; and that the defendant had assigned a reason for swearing to a defence, that more damages had been assessed than were really due, which he said could…

J* STRONG moved to set aside the proceedings aSa^nst ^e defendants in this cause, for irregularity. He read an affidavit stating, that the judgment in the original cause was entered on the 6th day of February last, that a ca. sa, was issued on the same dav, tested the 4th day of . February, which was the 4th day of the term, and returnable on the 11th. On the 12th of February the ca. sa. was returned non est inventus.

THERE were three suits between the plaintiff and the defendant in this court. The first was on a promissory note, in which the plaintiff recovered damages. The second was on a-contract in which the plaintiff also recovered damages. In the third suit, there was a verdict for the defendant. now moved to set off the entire damages recovered by the defendant in the last suit against the amount recovered in the two other 'suits.

<p>moved that the defendant deliver to the plaintiff’s attorney, the particulars in writing of the matters mentioned in the notice of set-off accompanying his plea.</p> <p>This was an action of assumpsit, to which the defendant pleaded non assumpsit and payment, and gave notice that he intended to set off, at the trial, several large sums of money due to him for goods sold and delivered, work and labour, money had and received, paid, laid out, Skc. in general terms.</p> <p>To show the English practice on this subject, he cited Tidd, (2d Ed.) 508—511.</p> <p>objected, that this was an attempt to introduce a new point of practice, which would prove extremely inconvenient, as the party would be bound by the precise particulars delivered, and any variation would expose the plaintiff on the one hand to he nonsuited, and the defendant on the other, in case of a set-off, to be defeated. (3 Burrow, 1390.) It might also be abused for the mere, purpose of delay.</p>

moved to set aside the default and all subsequent proceedings in this cause for irregularity.

HOPKINS moved for a commission to take the examination of witnesses, in this cause, residing at Baltimore. The commissioners were named in the notice. suggested that one of the commisioners named, was an agent of the plaintiff, and might be so far interested as to render him unfit to be a commissioner.

moved to set aside the verdict given for the plaintiff in this cause, for irregularity.

THE defendants in this cause, pleaded separately, and an inquest was taken by default against both of them at the last sittings in Neio-York. Wells, in behalf of Marschalk, now moved to set aside the inquest. He read an affidavit that the defendants had pleaded separately, and that the defendant Marschalk had a good defence on the merits.

AFTER a verdict for the plaintiff in this cause, at the last sittings, the defendants obtained a judge’s order for the stay of proceedings, which was regularly served before the term.

THE declaration in this cause contained several counts. The first was a special count for a legacy, and the others were the usual money counts. The plaintiff entered an interlocutory judgment for want of a plea, and damages were separately assessed on each count. On the last day of the last term, a motion was made and argued in arrest of judgment, but remained undecided until this term, when judgment was arrested on the first count.

RIICER moved to set aside the verdict in this cause for irregularity, and for a new trial, on the ground of material evidence discovered since the trial. From the affida- • . vits which were read, the following facts appeared : This was an action of assumpsit against the defendant, as the agent of Graham in the sale of a ship.

moved to set aside the default and subsequent proceedings in this cause. It x ° appeared that a rule had been obtained at the last term, to stay the proceedings against the defendant, on the bail bond, upon the usual terms, of paying costs and pleading issuably. The defendant pleaded the general issue, and also that the plaintiff had previously commenced another _ J suit for the same cause of action which was pending in this court.

moved for a commission to take the examination of witnesses ; and also to strike out the names of Rogers and Aikins, two of the lessors of the plaintiff, on an affidavit stating that they were dead. objected, that the cause-was not stated to be at issue; and read an affidavit, that Aikins, one of the lessors of the plaintiff, alleged to be dead, was believed to be living.

A NOTICE in this cause had been served on Thursday, of an intended motion to be made on the Monday . ,. , . , c T ' , . , lollovving, being the first day or term. It was objected, that the last day being Sunday, there was not a four-day’s notice. But the court said, that Monday may be considered as the last day ; that such a notice had always been held sufficient, and that in all notices, one day was to be taken inclusive, and the other exclusive.

THIS case came before the court on the return to a writ of error to the Dutchess common pleas. Keeler declared against Ruggles in the court below, on a promissory note • given by Ruggles to Keeler, for 84 dollars and 34 cents, payable on demand, and dated the 4th April, 1803.

THIS was an action of ejectment, for 23 acres of land, The case stated that the patent of Hartman Windecker and others, was dated the 12th of November, 1731, and that in 1743, it was divided into eleven lots, and numbered - ' ... , . . irom one to eleven, inclusive ; that partition deeds were executed in 1744 by the proprietors, by which lot No. 2 was released to Windecker ; that he on the 28th of March, • 1754, conveyed 25 acres of the south end of lot No. 2 to his daughter…

THIS was an action on the case, for a deceit. The declaration stated that the defendant, intending to deceive and defraud the plaintiff, falsely and fraudulently affirmed , that one Ebenezer Brown was worth 5,000 dollars, and that, as far as the said defendant had dealings with him, the said Brown had been punctual in his payments, and that he was a responsible man, and thereby falsely, fraudulently and deceitfully procured the plaintiff to sell to the said Brown, upon trust…

THIS was an action of ejectment, for lands claimed by ii r i i . •/v' i . . - . - y* i* n* the lessors or the plaintiff, as lying within the Half Moon, The or Van Schaick’s patent, in Saratoga county.

<p>1 HIS was an action oí ejectment, tor lands in the town 0p jjurley jn the county of Ulster. The cause was tried J J before Mr. Justice Spencer, at the Ulster circuit, in 1807.</p> <p>The lessors of the plaintiff claimed title under the will 0f Matthys Blanshan, the father of Brachie, one of the ■ . . lessors of the plaintiff. It was proved that the defendants were possession, and that the premises in question were part of the real estate of the testator, who died in 1780 or U81, leaving six children, all of whom were dead, except Brachie, and all left issue, except Matthew; that 1 , 1 Matthezv died in 1804, and for several years prior to his death had not been in possession ; and it was admitted, that he had mortgaged the premises to the loan-officers of Ulster, by whom they were sold, and under whom the defendants claimed title,</p> <p>The will of Matthys Blanshan, dated the 21st of April, U70, was offered in evidence, and objected to, Unless proved by a subscribing witness. It appeared that one of , , . . , . . , the subscribing witnesses was dead, that another was non compos^ and that the third lived at Poughkeepsie, and no The will reason was shown why he was not produced, , r , n was, therefore, rejected,</p> <p>The plaintiff then offered to prove that five-sixths of the real estate of the testator in Hurley, had been held under t^le will. This was overruled by the judge, as not sufficient to entitle the will to be read in evidence,</p> <p>The plaintiff then proved that the children of Matthys Blanshan divided his real estate, after his death, into six . equal parts, and that Matthew took the premises in question £ share, and the children said that it was run out, ac- ’ , ’ cording to the will, and all the children were present, except „ . , , ’ , , . , ’ Bractue, who had exchanged lands with one or the sons, Johannis, and given up her right, and it was then talked of, that if any of the children died without heirs, his or her part was to go to the survivors. The will was then admitted. After giving some legacies, the testator adds, u I give, devise and bequeath, to my six children, Johannis, Jacob, Matthew, Anne, Catharine, and Brachic, and to their heirs and assigns for ever, all the remainder of my real and personal estate, which I hold by patent, deed, bond, or any other instrument whatsoever, to be divided equally among them all, share and share alike, viz. each of my above named six children to have the one-sixth part of my estate, moveable and immoveable, which shall be in my possession when I depart this life: but if any one or more of my above named children should die before they arrive at full age, or without lawful issue, that then his, her, or their part or share of my estate, shall devolve upon, and be equally divided among the rest of my surviving children, and to their heirs and assigns for ever.” The will was proved the 29th of September, 1781, by one of the subscribing witnesses, before the surrogate of Ulster county. It appeared that the other four children died before Matthezv, leaving issue that were still living.</p> <p>A verdict was taken for the plaintiff, subject to the opinion of the court, whether the will was properly admitted, and whether the lessors have any, and what interest in the premises.</p> <p>. It was agreed, that if the will was improperly admitted, that a nonsuit should be entered; if otherwise, and the plaintiff had no title, that then a verdict should be entered for the defendants ; but if the will was properly admitted, and the plaintiff had shown a title to all, or any part of the premises, judgment was to be given for the plaintiff.</p> <p>The following points were raised on the argument ;</p> <p>1. Whether the will was properly admitted ?</p> <p>2. Whether the limitation over, upon Matthew’s dying w^out iSSUC) was a valid limitation ?</p> <p>3. Whether Brachie alone takes as sole survivor, or do not t^te words import a general failure of issue ?</p> <p>4. Or whether the issue of the brothers and sisters come in for a proportion l</p> <p>1. The will was duly proved in the office of the surrogate of the county, and being more than 37 years old, it ought to have been received as an ancient deed, without further proof. A parish certificate of 30 years old, has been admitted in evidence, without giving any account of it.* So deeds of 30 years standing, are admitted, without further proof of the execution than the production of them.† Besides, t^ie wiH having been admitted by the parties who acted under it, that was sufficient, in an action of ejectment.</p> <p>2. The devise over in the will was good, as an exe.cutory devise. In the case of Fosdick v. Cornell,‡ a similar question arose on a similar clause in a will, and all the cases on the subject were fully examined, and the court were unanimously of opinion, that the devise over was good. As four of the children died before Matthew, and he died without issue, the share of Matthew must go to Brachie, the only survivor.</p> <p>1. The presumption in regard to ancient deeds, exists only where there has been a continued possession, according to the deed. Here Matthew had been long out of the possession. Wills do not, like deeds, take effect from their date or delivery, but from the death of the testator ; their age, therefore, is to be computed, not from the time they bear date, but from the period when they take effect. In the present case, the testator died in 1780, or 1781 ; so that, admitting the rule about ancient deeds, to be applicable to wills, yet, with this modification, the present will is not 30 years old, so as to entitle it to be read as an ancient deed,</p> <p>2. By the word estate, the testator devised both his real and personal property, equally among his children. The personal property vested absolutely on their respectively attaining the age of 21 years, and any limitation over was void. As the object of all the rules of construction is to ascertain the intention of the testator, it is usual to resort to the devise of personal property, in order to find out the intention of the devisor as to his real estate; and to apply the same rule to the real as to the personal property.* If so, then it is clear, that each child, on arriving at the age of 21 years, would take a fee.† Again, by the words “ surviving children,” it must be intended, that the grand-children should take equally with the surviving child.‡</p>

THIS was an action of ejectment, for a lot of land, . , „_ , to the township or Marcellus, m the county ot Onondaga.The cause was tried at the Onondaga circuit, on the 4th June, 1806, before Mr. Justice Livingston. At the trial, the plaintiff produced in evidence, the patent for the lot in question, to William Dunbar, dated the 8th July, 1790, and a deed from him to Zebulon Macey, f°r the same lot, dated the 8th March, 1784, which had been duly acknowledged and recorded.

<p>Goods were insured from ¿fevitas, in the island of Cuba, “ beginning the adventure, &c. from and immediately following the lading thereof on board of the vessel at ¿¿evitas, in Cuba?' Thevesselsailed with a cargo of goods from New-Tori, and arrived at Nevitas, but not being allowed to land the goods there, except a fewtriflingarticles, she sailed again from Neritas, with the outward cargo on board, for Jamaica, and while proceeding to that place, was wholly lost by the perils of the sea. It was held, that the policy did not attach to tile outward cargo, which continued on board at Nevitas, and until the vessel was lost, and that the insured could only recover back the premium he had paid.</p>

THIS was an action of assumpsit. The declaration contained two counts, for money had and received to the use of the plaintiff, and for money paid, &c. Plea, non assumpsit.

THIS was an action of debt, on a judgment. The defendant pleaded his discharge under the act, entitled “ an act for giving relief in cases of insolvency.” The plaintiff replied, that the defendant, at the time of presenting his petition to the judge for relief, under the act, was indebted to one Hans Kiersted., in the sum of 500 dollars, and in order to obtain his discharge, procured Kiersted to become a petitioning creditor for a larger sum than was really due to him from…

THIS was an action of assumpsit. The declaration contained a count for 50 barrels of beef, sold and delivered ; a count for goods sold generally, and the general money counts. Plea non-assumpsit. The cause was tried at the Columbia circuit, in October, 1807.

THIS was an action on a policy of insurance, on the freight of the ship Culloden, valued at 3,300 dollars, on a voyage “ at and from Uew-Tork to Barcelona, with liberty to touch at The cause had been once tried, when the jury found a A v v verdict for the plaintiff, and on a motion for a new trial, the verdict was set aside, and a new trial granted. (See vol. p. 205.) On the second trial, at the sittings held in the city of Nevo-York, in June, 1807, before Mr. Chief Justice.

THIS was an action of ejectment, for lands in the town of Plattekill, in the county of Ulster. The cause was tried before Mr. Justice Spencer, at the Ulster circuit, in September, 1807.

THIS cause came before the court, on a writ of error, from the court of common pleas of the city and county of Nezv-York. Held: in that case, that an action would lie for the money agreed to be paid, though the goods had not been-transported. 2. But if any doubts existed as to the law, the usage found by the special verdict, in this case, ought to be conclusive.

THIS was an action of assumpsit. The declaration ■ * stated, “ that whereas, on the 29th of September, 1805, the plaintiff being owner of the brig Ohio, then lying in £^e Por£ New-Torh, it was agreed between him and the defendants, that the plaintiff should receive on board of the said brig, to be delivered to one William A. Carstairs, at Surinam, 100 casks of codfish, 20 barrels of pickled fish, 100 kegs and firkins, 200' hogshead shooks and . ' headings ; and also should…

<p>THIS was an action on a policy of insurance, on the ship Frances Ann, on a voyage from New-Tork to Bourdeaux and back to New-Tork.</p> <p>The cause was tried at the New-Tork sittings, the 12th oí December, 1807, before Mr. Justice Spencer.</p> <p>September, 1807, and had on board a number of Frenchmeni as passengers, some of whom were sent home on The vessel sailed from New-Tork through the Long-Island Sound. The master testified that he was instructed by his owners to take that course, in order to avoid the chance of detention or delay, by British ships of war, two or three of which were then cruising off Sandy-Hook. There was no particular or unnecessary delay during the passage through the Sound. The vessel sailed the 7th of account of the French government, and part of the cargo consisted of colonial produce.</p> <p>There are two passages to the sea from the port of Hew-York. One of them is through the Sound, which separates Long-Island from the main land; the other is through the Harrows to Sandy-Hook. The latter is the most usual and convenient passage for vessels bound to sea. Homeward-bound vessels often come in through the Sound, but that depends on the state of the weather, and the part of the coast first made. Outward bound vessels frequently go to sea through the Sound; and there are regular Sound pilots. It did not appear that leave was ever asked, or thought necessary to be obtained from the insurers, to go through the Sound. Several witnesses testilled, that under the circumstances, it was prudet~t for the Frances-Ann, to go through the Sound, as one or more British frigates were at that time off the Book, and her having French passengers and colonial produce on board, would have rendered her more liable to detention.</p> <p>The ship having suffered considerable damage during her voyage, it became necessary to repair her at Bourdeaux.</p> <p>The ship was consigned by the plaintiffs tó P. Coudere, jun. a merchant in Bourdeaux, from whose deposition it appeared, that he acted as the consignee of the ship at that place: that he paid for the repairs in cash, and with his own funds, and took a bottomry bond on the ship from the captain, at his own risk, at 25 per cent marine interest ; that he received the freight at Bourdeaux, but received it on account of a Mr. Rousillot, who had drawn on him for more than the amount; and the value of the cargo belonging to the plaintiffs, was absorbed by their drafts on London, which the consignee had engaged to pay for their account.</p> <p>The master of the vessel testified, that he had no funds to defray the expense of repairs, nor did he know of any person at Bourdeaux, who had funds or effects of the plaintiffs ; that the repairs were all paid for by Coudere. The master applied to no other person, anci was <jjrectec[ to Coudere by the plaintiffs. When the repairs had commenced, Coudere informed the master, tkat he had no funds, and that the master must secure him by bills drawn on the plaintiffs, or by a bottomry bond, to which the master agreed. When the repairs were completed, Coudere demanded a bottomry bond as his security, which the master accordingly gave. The ship was repaired on the credit, and at the sole expense of Coudere, and the master incurred no personal responsibility whatever, except what arose from his execution of the bottomry bond.</p> <p>On the return of the ship to New-Yorh, the defendants were requested to take up the bottomry bond, and on their refusal, the ship was libelled in the district court of the United States, and the amount recovered, which was paid by the plaintiffs, to prevent a sale of the ship.</p> <p>A verdict was taken for the plaintiffs, subject to the opinion of the court on the following questions :</p> <p>1. Whether there was a deviation ?</p> <p>2. ' Whether the defendants were liable for the marine interest on the bottomry bond given for the expenses of repairs at Bourdeaux ?</p> <p>It was agreed, that the amount of the sum to be paid, under the opinion of the court, should be adjusted by three persons, who were named in the case.</p> <p>1. All the witnesses agree, that going through the Sound, instead of the Narrows, was, under the circumstances of the case, prudent and justifiable. Emerigon* mentions the case of the Benjamin, insured from St. Domingo to France. This vessel, with several others, in order to avoid the English cruisers, went through the Streights of Bahama, instead of taking the usual route, and was afterwards captured. On an appeal, the court of Cassation, at Paris, held, that the insurers were bound to pay for a total loss. The same author is of opinion, that going out of the usual route, in order to avoid the payment of an oppressive or illegal toll, is justifiable, and does not amount to a deviation.(a) And Marshall says, that to avoid an enemy, is a cause of excusable deviation.*</p> <p>2. The vessel arrived at Boitrdeaux, in so shattered a condition, that repairs were necessary. The plaintiffs were not bound to have funds sufficient to defray the expense of repairs. If they had no funds there, the master was justifiable in taking up money for that purpose, on bottomry ; and the bottomry bond becomes the measure of damages for which the insurers are liable. I rely on the case of Dacosta v. Newnham,† as containing the established doctrine on this subject, and as applicable to the present case.</p> <p>1. It is agreed that the passage through the Narrows, and by the way of Sandy-Hook, is the most usual and customary route for vessels proceeding from the port of New-York. Going through the Sound, therefore, amounts to a deviation, unless excused by imperious circumstances. It is well known, that the danger of navigation through the Sound is much greater than through the Narrows. Admitting that there was a danger of detention or capture by British cruisers off the Hook, there was also, on the other hand, the greater danger of the navigation through the Sound. There was, then, a case for deliberation and the exercise of judgment, as to a choice of the route. In ordinary cases, where two routes occur, the master must decide, according to his best skill and discretion, which of them to take. The insurers are entitled to the benefit of a free exercise of the master’s judgment, whose opinion ought not to be controuled by the owners of the vessel. If the insured undertake to prescribe to the master which course he is to take, the ;nsurers are discharged, in case of a loss happening on the route prescribed.* Here the plaintiffs, without consuMng the defendants, instructed the master to go through the Sound. As the insurers were on the spot, their consent ought to have been obtained.</p> <p>2. I contend that the master, in this case, had no authority to bottomry the vessel ; and if so, the defendants are liable for no more than the amount of necessary repairs. The power of the master to borrow money on bottomry, arises out of the necessity of the case, and is limited by fixed bounds.† It is essential to the exercise of this power, that no other means of supplying the wants of the ship exist; and that it is necessary to the safety of the ship, and the prosecution of the voyage. This power cannot be exercised in the place where the owners reside, nor where the owners have funds provided, or have agents or consignees who are bound to furnish the requisite funds on the credit of the owners.‡ In the present case, the vessel was not forced by necessity into an intermediate port, but arrived at her place of destination, where the plaintiffs had a regular consignee or agent. The master had goods on board belonging to the plaintiffs, and for which he was entitled to receive freight. The freight money was the proper fund out of which to defray the expense of repairs. The master does not state, that he made any attempt to procure money in any other way. Coudere required bills on the plaintiffs, or a bottomry. The master, having his option, ought to have drawn bills on the owners, rather than to subject them to the payment of a high marine interest. Again, the money must be advanced on the faith of the ship, but the consignee advanced the money before the master had decided to give a bottomry. Coudere appears as a regular consignee of the vessel and of the goods of the plaintiffs, who possessed a credit with him. He. ought not, then, to have exacted the same security as a stranger. It would be dangerous to allow a consignee to take bottomry bonds, in such a case, as a collusion between him and the master, for the purpose of exacting from the owner a heavy premium for advances, would be so easy. The necessity of the case ought to be strong and manifest; it ought to appear that the last and only resource of the master for the safety of the ship, and the completion of the voyage, was to resort to this species of loan.</p> <p>3. Admitting, however, that the master had a right to bottomry the vessel at her port of destination, yet it does not follow, that the insurer is liable for the marine interest. Lending money on bottomry, resembles the contract of insurance ; in each a premium is received, calculated upon the nature and length of the voyage, the risk of which is run by the insurer in the one case, and the lender in the other. As the insurer derives no benefit from the loan, he ought not to be obliged to pay the premium. Ordinary interest is never, in fact, charged on the amount of disbursements for repairs, for which the insurer is liable; a fortiori he ought not to be held to pay ' marine interest. The insurers on this policy undertake to pay in 30 days after proof of the loss ; and until the accounts of the repairs are produced, there can be no proof of loss ; and the contract of indemnity does not extend further than the repairs. ,</p> <p>The case of Dacosta v. Nerwnham is different from the one before the court. There the insured, on advice of the accident, offered to abandon, and the insurer insisted upon the vessel’s being repaired. The insured acted under the orders of the insurer, and a bottomry bond having been given for the repairs, which they refused to pay, they were held liable for all the consequences of their refusal. The plaintiff had an undoubted right to abandon for a total loss, and the question whether the defendant was bound to pay marine interest, did not arise. The case was decided on a different principle.</p> <p>Hopkins, in reply. The insured, on his contract of indemnity, is bound for all the loss and injury arising from any of the perils mentioned in the policy, and for every necessary repair during the voyage. If the master acted ]}Qna jue jn giving the bottomry bond, and there was no other mode of raising the money to make the necessary rePa^rs? die defendants ought to pay the amount of the bond ; it is a direct consequence of the necessity of repairs occasioned by the perils of the sea. It is usual to advance the money first, and take the security after-wards. The consignee had a right to insist on the security upon the vessel,- without trusting to the personal responsibility of the owners. If a total loss has been prevented by making the repairs, the defendants have been benefited, and ought to pay the principal and interest of the bond.</p>

THIS was an action of covenant. The declaration set ri-iii, i, , iorth a deed poll, made the 26th January, 1797, whereby the defendant, in consideration of 1,408 dollars, conveyed a certain lot of land to the intestate, and covenanted, that he was well seised in fee, and had good right to convey, &c. and assigned for breach, that the defendant was _ „ not seised, &c. The defendant pleaded six pleas. 1.

THIS was an action of debt. The declaration was in the usual form for the penalty of an arbitration bond, dated the 9th January, 1807.

THIS was an action of assumpsit. The declaration contained the usual counts for money had and received to the use of the plaintiff, money paid, &c; The cause was tried at the New-York sittings, in December, 1807, before Mr. Justice Spencer. One Bancker was indebted to the United States, for duties on goods imported into New-York, to secure the pay-of which, he, and the plaintiff, as his surety, executed four bonds to the United States.

THIS was an action of ejectment, for lands in Montgomery county. The cause was tried at the Montgomery circuit, before Mr. Justice Van Ness, in October, 1807. The plaintiff gave in evidence a lease from George Klock, the father of the lessors of the plaintiff, to Jacob Forbush and Baftholomexv Forbush, dated the 6th Septemher, 1783, for a farm, known by lots no. 7 and 8. on the ’ . •' .

THIS was an action of ejectment, for lands in the town of Poughkeepsie, in the county of Dutchess, and part of a tract called the Whitehouse Tract. The cause was tried at the circuit in Dutchess county, before Mr. Justice Thompson, in September, 1807. It was admitted, that the defendants possessed part of the premises at the commencement of the suit.

THIS was an action of assumpsit. The declaration stated a special agreement, that the plaintiffs, on the 14th of December, 1804, being… Held: that a special authority must be strictly pursued, and that where a person was authorised to sign the name of another to a note payable in six months, he had no power to put his name to a note payable in two months. A fortiori an authority to stipulate for a note at 60 days, cannot authorisean agreement to give an indorsed note.

THIS was an action of ejectment, for land in Kinder-hook. The cause was tried before Mr. Justice Van Ness, a¡. t}le Columbia circuit, in October, 1807. Thomas L. Whitbeck became seised oí the premises in 1788, and died in 1798, without issue, leaving his father, 0ne of the lessors of the plaintiff, his heir at law.

<p>P. gave to G. a writing, as follows: “This is to certify, that I have bargained 8c sold the one equal half of lot no. 30. in the great location of the Sable, for 14 shillings per acre, to liufus Green „• the interest tó commence from the 1st July, 1/92 It was held, that this was a mere agreement for a conveyance, & did not amount to a conveyance, or a lease.</p>

THIS was an action of debt. The declaration contained two counts, on two obligations for 100 dollars each. The defendant pleaded non est factum, and that, on the 1st day of August, 1806, he paid to the plaintiff, the money due on the obligations.

ON certiorari. The suit before the justice was for one dollar, had and received to the use of the plaintiff. The defendant said that he had received a dollar of the plaintiff, but it was his due. On this declaration, the justice, without further evidence, decided that the plaintiff was entitled to recover, and that the defendant must prove the debt he claimed.

ON certiorari. The plaintiff below declared against the defendant, who was a tavern keeper, for refusing: to ' ° entertain him. The defendant pleaded not guilty, and set off a trespass by the plaintiff in breaking a door, &c. and that he was a person of bad reputation. A verdict •was found for the defendant for six cents damages and six cents costs.

<p>In suits before peace^the de^ fendant must setoff his demand against the plaintiff, the first opportunity he has pose,*01-^he will be precluded Thus, where two suits by the same plaintiff, against the «n^were^ending at the same time, and the defendant suffeed judgment to pass against him in the set^ff "his^clemand in the second suit, it was held, that beeÍTmade^in tiie first suit, Me to'be.'aV lowed m the second.</p>

IN error on certiorari, from a justice’s court. The defendant in error brought an action of debt on a judgment for 17 dollars and 79 cents, obtained before another justice, against the plaintiffs in error. The plea was mil tiel record. On the trial,'a certificate of the judgment, under the hand and seal of the former justice, was produced, but was not proved, except by a witness who testified to the hand-writing. It was read in evidence, though objected to by the defendant.

ON certiorari. The error assigned on the return of the certiorari in this cause, was, that the oath administered to the only witness sworn in the cause, did not correspond with the form required by the act. No objections were raised at the time, to the form in which the oath was administered.

<p>ON certiorari. The plaintiff below brought an action . , . ° or trespass de boms asportahs. The defendant pleaded, that, as one of the deputy sheriffs of Washington county, he took the goods by virtue of a fieri facias issued out of the court of common pleas, and offered witnesses to prove, by reputation, that he was a general deputy of the sheriff; but the justice overruled the evidence, and required that the defendant should produce and prove his appointment by the sheriff.</p>

ON certiorari. The plaintiff below brought an action of detinue against the defendant for a promissory note, dated the 12th of January, 1801, for 20 dollars. From the evidence produced at the trial, it appeared that the defendant had purchased of the plaintiff and one Mary Crookshanks, as executors, &c. some property, for which he gave to them the note in question.

ON certiorari. The plaintiff below declared in an action' of assumpsit for 25 dollars, and the defendant pleaded non assumpsit, and a set-off of five dollars damages, done by the plaintiff’s cattle, on the land of the defendant ; the plaintiff did not object to the set-off, and the cause was tried by a jury, who found a verdict for the defendant for 15 dollars damages. objected, that the set-off ought not to- have been allowed ; and that, at all events, the defendant was not…

ON certiorari. The plaintiff below was a constable, and had an execution against the defendant below, issued by a justice of the peace, at the suit of a third person. The constable, without making any demand on the de7 ... fendant, and without his request, paid the money to the plaintiff named in the execution, and then brought his actl°n before a justice against the defendant, to recover the amount so paid, to the use of the defendant.

ON certiorari. After issue joined between the parties before the justice, the defendant requested an adjournment of the trial, for three months, on account of . , „ • , - . , the absence oí a material witness m Vermont, which was granted.

ON certiorari. The plaintiff below declared against the defendant, in an action of trespass quare clausum fregit, and taking away ten sheep ; for cutting down and carrying away ten trees ; and for wounding and maiming a horse. The defendant pleaded not guilty. The evidence produced at the trial, was detailed in the return, but it is unnecessary to state it here.

ON certiorari. The plaintiff below declared against the defendant, in assumpsit, for 25 dollars, difference agreed to be paid by the defendant, on an exchange of horses between him and the plaintiff ; and also for 25 dollars, for fraud in the exchange of horses, and concluded to the damage of 25 dollars. The defendant pleaded the general issue and a set-off.

ON certiorari. The plaintiff below declared on a promissory note j the defendant pleaded infancy, and issue was joined on that fact. The. justice, from examination and inspection of the defendant, was of opinion that he was not an infant, and did 'not, therefore, assign him a guardian. The fact being submitted to the jury, they found that the defendant was not an infant, either at that time, or when he gave the note.

ON certiorari. The action below was brought on the 35th section of “ the act to regulate highways,” (vol 1. p. 602.) for obstructing the Susquehannah river.

THE plaintiff declared on a promissory note, given by one Spring to Reeves, the intestate, and payable to him or bearer. The note was indorsed over by Reeves, and the present suit was brought by the indorsee against his administrators. There was a general demurrer to the declaration, which was in the usual form against the indorser. objected that the deelaration ought to have been special.

<p>Where a justice returned to a certiorari, that, “ being convinced by the evidence adduced, he gave judgment,” &c. the court intended " that it was ott legal evidence.</p>

moved to set aside the default entered for not pleading, in this causey and all subsequent proceedings, for irregularity.

moved for judgment as in case of nonsuit, on the usual affidavit. read an affidavit, stating that the cause'was not noticed for trial at the last circuit in . . , Essex county, because the attorney, knowing that many causes of an elder issue were actually noticed, and that much business was to come before the oyer and terminer, to be held at the same circuit, did not believe that tke cause could be tried.

moved for a venire de novo to be awarded in this cause, or that the record be remitted to the court of common pleas of the county of Oneida, with directions to issue a venire de novo in that court.

<p>moved for judgment as in case of nonsuit, for not proceeding to trial.</p> <p>offered to stipulate to try the cause at the next circuit, or be nonsuited, and the only question Was, whether, as this was an action against a sheriff, the defendant was entitled to double costs.</p>

moved for leave to discontinue in this cause, without paying costs. He read an affidavit, stating that the defendant had no property, real nor personal, and that he had, on the 26th July last, enlisted in the army of the United States, for five years. The present suit was brought to reverse a judgment obtained against the plaintiff in error, before a justice of the peace.

<p>Where the defendant, having been surrendered by his more than three months in pnsun, without being charged obtabis6»0 rule to show cause Jea» should not be awarded, if ter service of before*116’ the time assigned to show cause, charges the defendant in execution, he may show that for vdll6 beds'll Iffcient to prevent «I SUtJC?8Cu£QS ' '' "</p>

moved to change the venue in this cause. objected, that the application ought to have been made before plea pleaded, or at least at the next term after issue was joined.

THE prisoner was convicted at the last oyer and terminer, in the county of Saratoga, of breaking the gaol, in which he was confined for petit larceny, under a sentence of the general sessions of the peace, and enabling another prisoner also to escape, who was in prison on a 1 1 * charge of felony. . The prisoner was brought up on a habeas corpus, to receive the sentence of the court.

moved to set aside ■an inquest taken by default in this cause, on an affidavit, •vvhich stated that an inquest had been taken by default, See. and that the defendant had “ a good and substantial defence in the cause.” objected, that them was not a smheient affidavit of merits. He cited Jackson, ex dem. Russel, v. Stiles, (3 Caines, 93.)

THIS was a special action on the case, fop overflowing the plaintiff’s land, by means of a mill-dam erected by the defendant on his own land. The defendant pleaded not guilty, and gaye notice that he should offer evidence that the dam was erected by permission of the plaintiff.

moved to set aside the inquest taken by default in this cause, and all subsequent proceedings, and that the money levied on the execution and received from the defendant, should be refunded, with costs.

THIS was an action of ejectment, for á part of lot no. á. in the town of Hector, in the county of Seneca. The cause was tried at the Seneca circuit, on the 23d june, ’ J ’ 180/, before Mr¡ Justice Tompkins.

THIS was an action of ejectment. The cause was tried at the Herkimer circuit, in 1807, before Mr. Justice Van Hess, The lessors of the plaintiff claimed 65 acres of land, off the north end of great lot no. 10. in GlerHs pur-' chase, of which the defendant was in possession. The premises in question are comprehended in 375 - acres of land, which belonged to the heirs of Alexander Golden, deceased, being six in number, as tenants in common.

<p>C. gave his bond to B. for a certain sum of money, ora the payment of whiehB.agreed to convey a. certain quantity of land to C. B.delivered the bond to F. with an authority to receive the money; and C. with G. as his surety, gave a joint and several note to F. for the amount of the bond, which was given up to C. In an action on the note against G. it was held, that he could not set up as a defence, an agreementbyF. that in case B. should refuse to consider the note as a payment on the bond, it should be returned, nor a want of consideration, by reason of the failure of B. to convey, the land to G.</p>

THIS was an action of assumpsit. The plaintiff declared on a promissory note, dated the 17th September, 1806, for 171 dollars and 39 cents, payable on the 1st November thereafter. The defendant pleaded non-assumpsit, with notice of special matter to be offered in evidence at the trial.

<p>A lessor cannot maintain an action of trespass quare clausum Jregit against a subtenant at will of the lessee, fortakingdown and carrying away a house erected by him on the demised premises, during the lease.</p>

THIS was an action of covenant. The declaration set forth a deed, by which the defendant, on the 1st May, 1799, conveyed to the plaintiff, in fee, a certain parcel of land, and therein covenanted for himself and his heirs, “ the premises thereby bargained and conveyed, in the quiet and peaceable possession of the plaintiff, his heirs and assigns, forever to warrant and defend;” The plaintiff then averred, that at the time of executing the deed to him, the premiseS were…

<p>Proceedings tinder the 11th section of the act to regulate highways,’ are to be in a summary way; the overseer is the judge of the delinquency of the party, and the justice in issuing a warrant, acts ministerially, and is not bound to give the party notice of the complaint, or to summon him to appear, or show cause against the charge.</p>

<p>THIS was an action of debt, on a bond, to which there was a plea of non est factum. At the trial of the cause, at the Herkimer circuit, in June, 1808, before the Chief Justice, the plaintiff offered to prove that the bond had been shewn to the defendants, a short time before the commencement of the present suit, and that they then confessed that they had duly executed the bond ; but this evidence was objected to, and overruled by the Chief Justice. The plaintiffs, not being prepared to prove the bond, by the subscribing witnesses, or to account for their not being produced, were nonsuited.</p> <p>moved to set aside the nonsuit. He contended, that according to the decision of this court in Hall v. Phelps,* proof of the confession of the obligor was sufficient, without producing the subscribing witness. It is true, that case was on a promissory note, but the principle of that decision must be applicable to every instrument, sealed or unsealed, to which there are subscribing witnesses.</p> <p>In Abbot v. Plumbe,† where it was proved that the obligor had acknowledged that he owed the debt, and it was objected that the subscribing witnesses ought to have been called, Lord Mansfield considered the objection as captious ; and that it was a mere technical rule, which required the subscribing witness to be produced. The strictness of the ancient rule in this respect, has in several instances been relaxed in the English Courts. Where an instrument is executed abroad, or the subscribing witness resides in a foreign country, proof of his hand-writing is sufficient.‡ A confession of the party is higher evidence, than, the testimony of a witness, who may know nothing, except that he signed his name to the instrument. If the subscribing witness should deny that he saw the deed executed, it may be proved by other witnesses.§ The rule laid down by this court in Hall v. Phelps, is not only £t convenient, but a safe rule, for the evidence of the confession of the party must be full, clear and Satisfactory.</p> <p>The case of Hall v. Phelps, was thought to be an innovation on the English rule of evidence. That was a suit on a promissory note j and in relation to unsealed writings, less strictness may, perhaps, be requisite. But the court will, no doubt, be cautious as to extending the rule to deeds. The relaxations of the ancient rule in England have not gone further, than to allow the proof of the hand-writing of the witness, where it is shown that he was absent in a foreign country, and beyond the reach . of the party. Evidence of confessions is liable to abuse, and any greater relaxation of a salutary and established rule may produce more injurious consequences, than can well be foreseen.</p>

THIS was an action of trespass for the mesne profits. The cause was tried at the Washington circuit, before Mr. Justice Thompson, in June, 1808. On the trial, the plaintiff produced the record of a judgment obtained against the casual ejector, in an action of ejectment, by default. The service of the declaration on the defendant, and the value of the land during the time he had been in possession, and the costs in the action of ejectment, were proved.

THIS was an action of ejectment, for lot no. 68. in the town of Milton, in the county of Cayuga. The cause was tried before Mr. Justice Spencer, at the Cayuga circuit, on the 1st July, 1808.

THIS was an action of ejectment, for lot no. 64. in the e # town of Aurelius, in the county of Cuyuga. The cause was tried before Mr. Justice Spencer, at the Cayuga circuit, the 2d July, 1808.

<p>THIS was an action of ejectment, for land in Kinder-hook, in the county of Columbia. The cause was tried before the Chief Justice, at the Columbia circuit, the 17th December, 1806.</p> <p>The plaintiff proved, that in the year 1778, Johannes Huyck, Lucas Goes, John D. Goes, William Klaw, and Burger Huyck, being freeholders and inhabitants of the county of Kinderhook, took possession of a tract of land, , ... . contammg about 400 acres, comprising the premises in question, by cutting a possession fence, and lopping bushes round the tract: at which time no person was in possession, of the premises, which are situated within the Kinderhook patent; that two years afterwards the same persons renewed their possessions, and that they cut firewood and fencing materials on the land, but none of them lived on the land, or cultivated any part of it; that the greatest part of the land was held and cultivated by persons in opposition to the claim or possession above stated.</p> <p>Several witnesses testified, that the proprietors above named had, at several times, particularly in 1786 and 1790, renewed the possession-fence, and had cut wood in various parts of the inclosed.tract; and it appeared that at the time of the trial, the lessors of the plaintiff had various actual possessions on the tract, amounting to 171 acres.</p> <p>The plaintiff then produced in evidence the last- will and testament of John D. Goes, one of the proprietors^ dated the 23d January, 1789, by which he empowered his executors, therein named, to sell his real estate; a deed from John T>. Goes to William Pulen, one of the lessors of the plaintiff, dated the 4th May, 1792, for an undivided sixth part of the tract of land above mentioned ; a deed from Johannes Huyck, another of the proprietors, to Jacob Vandeuzen, another of the lessors of the plaintiff, for an undivided sixth part of the same tractj the last will and testament of Lucas Goes, dated the 25th August, 1803, devising all his real estate to his executors therein named, two other lessors of the plaintiff; a deed from Peter Van Beuren, dated 7th September, 1804, to William Pulen, one of the lessors of the plaintiff, for an undivided sixth part of the said tract; a deed of surrender from Samuel Van Huyck, to the lessors of the plaintiff, of 16 acres of land, part of the said tract, dated 23d November, 1805.</p> <p>It was admitted that William, Klazu died in 1806; and his heirs are also lessors of the plaintiff.</p> <p>The plaintiff also produced the Kinderhook, or general patent, as it is called, dated in 1686, and offered to prove, that no partition of the patent had ever been made, and that the freeholders and inhabitants of the town, universally, held their lands pursuant to possessions originally taken, in the same manner as the possession under which the lessors of the plaintiff claim ; but this evidence was overruled by the judge.</p> <p>It was proved that one Samuel Smith occupied the premises in question, and that the defendant came into possession under him ; that while Smith was in possession, he said that he held under Lucas Goes and Andries Klaw, a son of William'Klaw ; that in 1790, or 1791, when Smith first entered on the premises, he was warned off, when Smith said, that he settled under William Klaw, one of the proprietors.</p> <p>It was also proved, that both Smith and William Klaw, when Smith first settled on the premises, declared that Smith was to have the premises for six years, and to pay twelve pounds, and to be compensated for his improvements at the end of the term. Several witnesses also testified to similar declarations of Smith.</p> <p>The defendant produced a deed from Samuel Smith, to him, dated the 29th April, 1799, for the consideration of 300/. with full covenants. Smith, having been released by the defendant, was admitted as a witness, and testified, that he never settled under Klaw, nor had any leave from him, nor had ever said that he had settled under him ; that he cleared the land himself, except a small part previously cleared by one Peter II. Gardinier; and that he had known the premises about 16 years ; he also proved a deed from Gardinier to him, dated in August, 1790 ; that he built a shop on the premises, and had lived quietly thereon for 6 years, without any demand of rent being made. Gardinier also testified, that he once lived near the premises, and gave the deed to Smith; that William Klaw was his next neighbour, and never complained of the sale, and knew that he had cleared a part of the premises before he sold them to Smith.</p> <p>Another witness testified that six years ago, William Klaw told him that Smith erred in selling the land, for it belonged to Peter H. Gardinier.</p> <p>The Chief Justice charged the jury, that the Kinder-hook patent had no relation to the cause : that it gave no right to the lessors of the plaintiff to take possession, nor did they derive any right from the possession fence, as it was called, or the renewal of it; that the proof of the tenancy of Smith was not sufficient, admitting even that he made the declaration stated by the witnesses; that there must be either a lease, or a payment of rent, to constitute a tenancy. The jury, under the direction of the judge, found a verdict for the defendant.</p> <p>A motion was made to set aside the verdict, and for a new trial, on the ground of the misdirection of the judge.</p> <p>1. Evidence of possession must be according to the subject matter. Evidence of the possession of a house will be stronger and more decisive, than that of a piece of wood-land. The inclosing of land, followed by repeated acts of ownership, ought, according to the circumstances of the case, tobe sufficient evidence of a possessory title. If the acts of possession are such as to afford public and notorious evidence of ownership, it is all that can reasonably be required.</p> <p>The case of Jackson, ex dem. Hardenbergh and others, v. Schoonmaker,* may, perhaps, be cited to the contrary ; but that case was different from the present. There, the defendant offered to establish an adverse possession, taken-with a view to defeat a title ; and the court, in favour of right, very properly required the highest evidence of possession. Here was evidence of a previous possession, and under the Kinderhook patent, such possession would be lawful. It was not necessary to show a possession for 20 years.†</p> <p>question, in this case, as to what will be sufficient evidence of a possession to enable the plaintiff to recover, is important to the whole town of Kinderhook, which has-been possessed under the general patent. The evidence produced showed, that the manner in which the lessors of the plaintiff took possession, had been invariably practi? sed by the inhabitants, "and it is fairly to be presumed* that this mode of designating the property of the different possessors, was sanctioned by the town meeting. The fence which inclosed the tract was, emphatically, a possession- fence ; it is not evidence of a mere right of possession, but of an actual possession ; and when accompanied by the repeated acts of cutting wood, affords the only evidence of the possession of wood-land, of which the subject matter is susceptible. But it also appears that the lessors of the plaintiff actually cultivated 170 aeres of the tract. All these acts established a reputation that the proprietors were the real possessors of the land ; and ought, to prevail against a mere intruder,. without any tide,</p> <p>2. The defendant claims under Smith, and must, therefore, be bound by his acts and declarations. Six witnesses testified, that Smith confessed that he had entered under one of the lessors of the plaintiff, Having admitted his tenancy, he is. estopped from setting up any adverse or outstanding title in another.‡ The evidence of this acknowledgment of title was conclusive against the defendant.</p> <p>When a plaintiff in ejectment sets up a possessory title, he must show it to be a such a title as the law will recognise. Title implies right, a right of possession. A defendant in ejectment who claims to hold by such a title, must prove an adverse possession of 20 years, to bar the plaintiff’s right of entry ; such a possession being evidence of a legal title or fee.*</p> <p>If proof of 20 years adverse possession is necessary to protect the defendant in his possession, then, e converso, such a possession is requisite to enable a plaintiff to reco? ver on a possessory title ; for it would be absurd to allow a plaintiff to recover possession, on less evidence than. would be sufficient to enable a defendant to retain it. Possession affords only a legal presumption of right, and the law has fixed a period, when it shall be considered as a fee ,or title. There is a naked possession, sine aliquo vestimento, as Bracton expresses it, unaccompanied with any title or claim of title. By such a possession no right is acquired, on which the" party can maintain an action of ejectment.† The felling or lopping of trees xva.s an arbitrary act, not done with reference to any right or title, Had the lessors of the plaintiff marked the trees round ¡the land, it would have been equal evidence of a possession. Cutting wood is an equivocal act, and may be done by a trespasser, as ■well as by the owner. The case of Jackson, ex dem. Hardenbergh, v. Schoonmaker,‡ is strong and decisive on this point.</p> <p>2. A mere permission to another to go on the land, without any agreement as to rent, will npt amount to a tenancy. To constitute the relation of landlord and tenant, there must be a contract or agreement, as to the terms on which the land is to be held. It is true, one witness has said, that Klazv was to have twelve pounds a year, and pay for the improvements ; but there was no evidence that any rent was ever demanded or paid. Had there been any such agreement to pay rent, there would, no doubt have been some proof of a demand of rent, during near fifteen. years.</p> <p>3. The evidence as to the Kinderhook patent, was pro-* perly rejected, as it merely concerned the rights and acts' of third persons, and could not establish any right of the, lessors of the plaintiff against the defendant.</p>

<p>Where B. by articles of agrecment, covenanted to sell and convey to H. a tract of land, at 91. per acre, and a deed was accordingly executed and the purchase money paid according to the quantity of acres expressed in the deed, it was held, that no parol evidence was admissible, to show that there was a mistake in the quantity mentioned in the deed ; and that an action for money had and received, to recover back the money paid for the number of acres alleged to be deficient, was not maintainable.</p>

THIS cause came before the court, ott the return to a writ of .error, to the general sessions of the county of Rensselaer.

<p>THIS was an action of ejectment, for part of lot no. 34. in the town of Aurelius, in the county of Cayuga„ -phe cause was tried before Mr. Justice Spencer, at the . . . , , Cayuga circuit, m July, 1808.</p> <p>Upon the trial, the plaintiff gave in evidence, a patent r ’ r . ° r . for the lot, to one Christian Blue: an act of the legislature, passed the 7th April, 1806, for the relief of Heet, one 0f the lessors of the plaintiff; and a patent for-, the * premises, to Heet, from the commissioners of the land°®ce) *n pursuance of the said act. He also proved, that Hue died before the 27th March, 1783, to wit, in the ... year 1781, without issue.</p> <p>The defendant gave in evidence, a deed from one John Hegeman to Austin and Tyler, dated the 14-th December, 1794, for 450 aeres of the lot, including the premises^ and a deed from Tyler to the defendant, dated 15th April, 1803, for 120 acres, being the premises in question. The defendant was in possession prior to the 5th April, 1803, had paid a considerable part of the considera¿ion money, and had made large improvements prior to the 5th April, 1803. The jury gave a verdict for the plaintiff, and also found the fact, that the defendant ■ had settled under colour of a bona fide purchase, made prior to the 5th April, 1803. A question was reserved, whether the plaintiff should be permitted to sue out execution, until he had paid for the improvements, deducting a reasonable compensation for the use and occupation of the land.</p>

THIS was an action of debt, on a recognisance of bail. The declaration was in the usual form.

<p>A seaman was hired for a voyage from New-Yori to titmce’io^Ccmton, and back The ship'was laden with artides contraband of war, the course of the voyage to master^ under wantof water which was not deviáted, ¡norder to put into ^France** E and while proceed-mg m the route to that island, track of the ost tensiblevoyage, was captured by a British condemned^ The seaman board Po*f the •Snj'bVAfrigate, shipped to Lonwhénc»°he sai ledtoivilmingftom^henceto Nenn-Yirk. In an action against the owner for wages, it was held, that he was entitled to his wages, according to the contract, from the time he shipped on board, until his arrival in Nov:York, deducting such wages as he had earned and received during his absence.</p> <p>One seaman is a competent witness, in a suit brought by another seaman for wagys, earned on board of the same ship, though he may have a common interest with the plaintiff as to the point in controversy. The objection goes only to his credit.</p>

THIS was an action of trover, for a quantity of wheat, in the sheaf, and a quantity of hay. Held: that the limitation commenced from the time of the original seizure by the officer, though a suit was pending in the Exchequer., as to the right of seizure.* The execution having been set aside for irregularity, must be considered as void, and a nullity from the beginning.† It is the same as if no execution had ever existed.

A JUDGMENT had been entered up, in this cause, on a warrant of attorney. The judgment was regularly signed and docketed ; but through mistake, the name of the defendant’s attorney was not signed to the plea, filed with the other papers, nor was his name inserted in the roll. Execution had been issued by the .plaintiff, and also by one Mancius, who had obtained a subsequent judgment against the defendant.

<p>The time of the performance ofthecondition of a bond may be enlarged by a, parol agreement of the parties; and, where certain! acts were done by the obligor, amounting to a substantial, though not to a literal performance of the condition, it was he}d, that evidence of a parol agreement of the obligee, to •waive any further performance, was admissible.</p> <p>Where the cause of action is trifling, and the plaintiff recovers only nominal damages, the court will not set aside a verdict for the misdirection of the judge, if the plaintiff will elect to discontinue, without Costs.</p>

THIS was an action of assumpsit, for goods sold and delivered. The cause was tried at the last sittings in NewTork, before Mr. Justice Van Ness. On the 11th December, 1805, the defendant;, who resides at Albany, wrote a letter to ,the plaintiffs,, who arc merchants in the city of New-Tork, as follows : “ Albany, 11th December, 1805. Gent.

THIS was an action of assumpsit, for goods sold and , , , , , , , . , mi delivered, money lent, and money had and received. JL he cause was tried at the last sittings held in New-Tork. Patrick and Hastie entered into copartnership in 1800, ant* carried on their business in the city of New-Tork. On the 31st December, 1801, they dissolved their partnership, and a notice of the dissolution was published in the gazeaes Gf the city, in the following words : “ Notice.

A CAPIAS AD RESPONDENDUM was issued, at , the suit of the plaintiff, against James Hasbrouck, Conrad Elmendorf, P)aniel Lewis, and seven others, to answer in a plea of trespass, returnable at the… Held: that the plaintiff might declare against them severally.

HOPKINS moved for an attachment against the defendant, for the non-payment of costs. The affidavit, on which the motion was founded, was not signed with the name of the party, but it was in the usual form, and had the jurat of a proper magistrate.

<p>where a plea is put in, which the plaintiff considera as frivolous, or a nullity, he may either enter a wantof a plea^ or demur, but to^the* court JUU£TUCUb</p>

moved to bring on the argument of this cause, when S. Jones, jun. for the defendant, called for the points which were to be insisted on, jn the argument. Baldwin replied, that the case came be- ° . , . .. ... fore the court on a point reserved at the trial, and it did not’ therefore, come within the rule of practice requiring the party bringing on the argument, to furnish the court and opposite party with the points. .

ON the 5th May, 1806, the appellant tied a bill in the court of chancery against the respondents. From the nature of the appeal, and the decision of this court upon it, it becomes unnecessary to state the pleadings, or the facts on which the merits of the cause rest. The respondent, John Thorne, jun. filed, his separate answer to the bill, on the 6th June, 1806. Richard V. W. Thorne, filed his separate answer on the 25th June, 1806.

THE respondents, in their answer to the petition of appeal, in this cause, consented that the orders of the court of chancery, complained of by the appellant, should be reversed, the plea and demurrer allowed, and the bill dismissed, with costs. thereupon moved, that the respondents should be ordered to pay a sum to the appellants, to indemnify them for the costs and expenses at-, tending the appeal.

AT the last court, a writ of venire facias de novo was awarded in this cause, (2 Johns. Rep. 549.) At the last sittings in Nezv-Torh, the Chief Justice, before whom the. cause ^as tried, gave his opinion, that the paper- in question was a sea-letter, agreeably to the decision of this court> when the cause came before them, on a former writ of error.

A MOTION having been made to bring this cause on to be heard, Pendleton, for the respondents, objected, that the petition of appeal was not in conformity to the rule of the court. By the ninth rule, it is ordered, that the petitions of appeal, instead of reciting the pleadings at large, shall only recite the decree, or such part of it as is appealed from, and shall set forth the reasons of such appeal, and refer to the pleadings and exhibits, filed with the clerk.

IN May, 1806; Selah Strong and Richard Udall, the general guardians of the person and estate of Wm. Nicoll, the respondent, an infant, of the age of seven years, appointed by the court of chancery, filed their bill in that court, against the appellants. From the pleadings in the' cause, the following facts appeared.