Volume 3 — Wendell's New York Reports

This was an action of assumpsit, tried at the Greene cir-t ' cuit, in April, 1829, before the Hon. William A. Duer, one of the circuit judges. J ° ■ The declaration contained a count against the defendant as mafcer 0f a promissory note for $1000, dated 35th May, 1836, payable in 90 days to Ira T. Day, at the Greene County Bank, and endorsed by him and Horace Austin. There were also the common money counts.

Error from the New-York common pleas. Clark sued Niblo in an action of debt on recognizance, entered into by Niblo as the bail of one Edward King, in a suit prosecuted by Clark against King, in the New-York common pleas. Niblo pleaded, 1. Nil debit; 2. The death of the principal after judgment and before the return of a ca. sa.; 3.

<p>The lessors of the plaintiff m an action of 6jectmer;t are not harrea from their ac¿uctíonTf are-cord of a vermentTn ÍTuft the les. sors and others as heirs and th™ plead nans per °”f whiehissue the Whether The claim ed in the action of ejectment and other lands held by the lessors and their co-defendants in that suit came to such defendants by decent or devise, and were assets in their hands to pay the debts of their ancestor, although the jury on the issue of Hens per decent' found against the defendants : it not appearing from the record that the fact in issue in the action of ejectment was in issue and decided in the former suit.</p> <p>If a verdict in a former suit will stand, on the assumption that the issue therein was found in favor of the title set up in the second suit, such verdict and the judgment thereon are not conclusive.</p> <p>Nor does it help a defendant in an action of ejectment that the title set up by the lessor Was in dispute in the former action, if such title came in question only collaterally, and if it does not appear that the verdict is .necessarily based upon the finding that the lessors had no title. That the jury found against the lessor must appear affirmatively and not rest in inference.</p> <p>To make a record evidence to conclude any matter, it should appear from the record itself, that that matter was in issue; and evidence cannot be admitted that under such a record any particular matter came in question.</p> <p>An estoppel cannot be created by parol evidence helping out a record; to constitute an estoppel by a former judgment, the precise point which is to create the estoppel must have been put in issue and decided, and that it was so put in issue and decided can appear by the record alone.</p> <p>A record, verdict or judgment is not conclusive when offered as evidence to prove an issue of fact, and not brought forward by plea as an estoppel. The jury in such case may find against the facts so proved, if the other evidence in the case will warrant their so doing.</p>

This was an action of trespass, tried at the Ulster circuit, April, 1828, before the Hon James Emott, one of the cir- . CUlt judges.

Demurrer to pleas. The declaration is in debt on a bond conditioned for the faithful discharge of the duties of treasurer °f the county of Allegany by Van Campen. Van Camp-en and six of his sureties united in the defence, and appearec* hy one attorney; two of the remaining sureties, there being eight in the whole, appeared and defended by another attorney. Each set of defendants pleaded fourteen pleas. The pleas of each, however, were the same in form and substance.

Error from the New-York common pleas, Warner, as assignee of the sheriff of New-York, declared in the court of COmmon pleas against Gould, Banks and Gumming, of a plea, that they render to him $1740, for that whereas the plaintiff on 0th of February, 1827, at the first ward of the city of New-York, in a certain store, distrained the goods and chattels °f Edward B. Gould, one of the defendants, for a certain sum, due him for rent; that E. B. Gould posecuted a plaint in…

This was an action of assumpsit, tried at t! le Albany circuit, in August, 1828, before the Hon. James Emott, one of the circuit judges.

Demurrer to plea. The declaration is in assumpsit. The first count is on a due bill, made by the defendant to the . . ._ , plaintiff, for the sum oí $400, dated 17th March, 1826, payafi]e on fiemanfi. The declaration also contains the common money counts.

This was an action of assumpsit, tried at the New-York circuit, in June, 1828, before the Hon. Ogden Edwards, one of the circuit judges. ■ The declaration was on a promissory note for §497,30, dated the 12th May, 1824, made by J. H. Cunningham, payable in 90 days to E. W. A. Bailey, and endorsed by him and by the defendants, who were sued as second endosers. The defendants pleaded the general issue, and gave notice of set off.

Error from the Columbia Common pleas. Van Alstyne sued Van Hoesen in a justice’s court, and declared for a horse sold and delivered, and also for the amount of a note of $25, made by Samuel Cooley, junior, to the defendant, - dated the 10th December, 1819, endorsed by the defendant, for a valuable consideration to the plaintiff; the note having been duly presented for payment to the maker, and notice' of non-payment given to the defendant.

1' Error from the Dutchess common pleas. Lozee sued Lewis in an action on the case for making a distress of his goods, as his landlord, claiming a greater sum to be due to him than was in fact due, to wit the sum of $265 instead of $175 ; and that the plaintiff, to regain possession of his property, was forced and obliged to pay, and did pay, the pretended arrears of rent, together with the costs of the distress, &c. The defendant pleaded non cul.

This was an action of assumpsit, tried at the New-York circuit, in October, 1827, before the Hon. Reuben Hyde Walworth, then one of the circuit iudges. The declaration contained the common counts for goods sold and delivered, and the money counts. The defendant pleaded the general issue, and gave notice of set-off.

Demurrer to declaration. The first count of the declaration set forth that the Mechanic Fire Insurance Company 0f the city of New-York was a body corporate and politic in . , r , fact and m name; and being such body corporate and politic, anc* one John Franklin being the president of said company, and being thereunto duly authorised, and acting within the SC0Pe °f the legitimate purposes of the company, on the 1st July, 1823, at, &c. made a certain promissory note, and then…

This was an action of ejectment, tried at the Rensselaer circuit, in July, 1828, before the Hon. William A. Duer, one of the circuit judges. The plaintiff claimed to recover a moiety of 75 acres of land.

This was an action of assumpsit, tried at the Oneida circuit, in April, 1828, before the Hon. Nathan Williams, one 0f the circuit judges, on a promissory note by the plaintiffs, as second endorsees, against the defendant, as maker, The declaration stated the making of the note by the defendant (Luther Badger) to Stephen Hungerford and John Ainslee, bearing date 7th December, 1825 ; an endorsement ° ’ by the payees to Crocker and Badger; and a second endorsement by them to…

This was an action of trover, tried at the Clinton circuit in j anuarv, 1828, before the Hon. Reuben Hyde Walwoeth, r . . . then one oí the circuit judges. the trial of the cause it appeared, that the plaintiff was the owner of a certain lot of land ; that on the 18th day of October, 1825, he entered into an agreement with John S. Frazer, whereby he demised to Frazer the west half of the l°t for the term of four years from the 15th day of June next, on condition, that Frazer…

This was an action of ejectment, tried at the Columbia circuit, in April, 1827, before the Hon. William A. Duer, one of the circuit judges. The lessors of the plaintiff who are the daughters and sons-in-law of one Jacob Elias, claimed to recover the moiety of a farm, of which the defendant, Rachel Wight, (the widow of J acob Elias,) and her son, William Wight, by a second marriage are in possession.

f™8 was an action of assumpsit, tried at the New-York circuit, in March, 1828, before the Hon. Ogden Edwards, one of the circuit judges. The plaintiffs claimed damages for the non-delivery of a tiuantity of cotton alleged to have been purchased by them of the defendants.

<p>By the “act busesCTinnt the law5” °e °(Stat utes, ml. 4, niTs and com" sellers at law fronTtle^purpose or re. promifory'any note, &c. ex-mint for estate realorpersonai sola, for services rendered, for a debt antecedently contracted, or for the purpose of making remittance, although such note, See. be not purchased for collection, or for the purpose of bringing a suit thereon.</p>

<p>Demurrer to declaration. The declaration is in case by “ie dn’ectors oí an insurance company against their predecessors for mal-feasance in their office of directors, and contains two counts. In the jfirst count it is stated, that the plaintiffs, on the 10th of January, 1826, and from thence until the time of the grievances after mentioned, were lawfully possessec| 0f and entitled to a large amount of funds, credits and effects of great value, to wit, of the value of $500,000, as an<i f°r the capital stock of the plaintiffs as a body corporate and politic, duly created; that on the day aforesaid the defendants were duly elected directors of the said body corporate, for the space of one year thence next ensuing, and until others should be elected in their places as such directors; that the defendants accepted the office of directors, and assumed upon themselves the duties thereof, arid continued and acted as such until and at the time of committing the griev- . 0 0 anees, &c.; and although it became, and was the duty of the said defendants respectively, as 'such directors, to take and use all reasonable and proper care, diligence and atten^on, in and about the preservation, custody and safe investment of the said funds, credits and effects of the plaintiffs, and to invest t- te same in such manner and in such securities as they should deem most conducive to the wellfare of the plaintiffs and the owners and proprietors of the capital stock of the plaintiffs as such body corporate and politic; yet the said defendants, sevérally, totally disregarding their said duty, and contriving, and fraudulently and willfully intending to injure the plaintiffs while they, the said defendants, severally, were and acted as such directors as aforesaid, and had the care, custody and control of the said funds, credits and effects, to wit, on the day and year aforesaid, and on 'divers subsequent days and times, to wit, at, &c. took so little and such bad care in and about the preservation and safe in-. vestment of the said funds, credits and effects of the said plaintiffs, that by and through the carelessness, negligence, and corrupt and wilful mismanagement of the said defendants, as such directors, in loaning the said monies, credits and effects upon securities which they at the time well knew to be insufficient and inadequate for that purpose, the said funds, credits and effects then and there became and were greatly wasted, impaired, dissipated, and finally lost to the said plaintiffs, to wit, on, &c. at, &c. The second count is substantially the same as the first, with the exception that in addition to charging the defendants with fraudulent and wilful misconduct, they are charged with having acted corruptly, and with a view to their private benefit and advantage ; and that there is no specification of the manner in which the funds of the plaintiffs were wasted and lost.</p> <p>The defendants demurred, and for causes of demurrer assigned the following: 1. That a joint action cannot be sustained, the grievances complained- of being alleged to have been committed by the defendants severally; 2. That it is not alleged of what the funds, credits and effects of the plaintiffs consisted, of which the defendants aré charged to have had the care, custody and control; 3 That it is not alleged how, or in what manner the funds became wasted and lost; and 4. That the grievances complained of are alleged to have been committed in part by the want of care, and in part by corrupt and wilful mismanagement, which is double, repugnant) &G. The plaintiffs joined in demurrer.</p>

<p>This was an action of assumpsit, tried at the Ulster cir-cult, in April, 1828, before the Hon. James Emott, one of the circuit judges. J °</p> <p>The declaration was by the plaintiff as hearer of a promissory note made by the defendant; payable to Abraham Robison or bearer, for the sum of $313,50, dated August 8, 1823. The defendant pleaded a discharge obtained by him as an insolvent debtor on the 12th February, 1824, under the act granting relief in cases of insolvency, discharging him from all debts due from him at the time of his assignment, or contracted for before that time, though payable afterwards. A stipulation was entered into between the parties, that the cause should be tried as if a replication of a new promise had been interposed and an issue joined thereon reserving to each party the right of availing himself of the law arising upon the whole case, and agreeing that the defendant might raise the question whether, if judgment passed against him, his body ought not to be exempted from imprisonment.</p> <p>On the trial of the cause, the making of the note was admitted, and the discharge produced. The payee of the note (after being released by the plaintiff) proved the transfer of the same about a year before the trial, and testified that shortly after the defendant obtained his discharge, and repeatedly since, while he (the witness) was the holder of the note, and previous to the transfer to the plaintiff, the defendant promised’ to pay the debt. This evidence was objected to by the defendant, but received by the judge, who directed the jury to find a verdict for the plaintiff. The defendant asked that the verdict might be special, so that a judgment might be entered exempting his body from execution ; which application was denied by the judge, and a general verdict was found for the plaintiff to the amount of the note. This cause come on to be heard on a case containing the above facts and the stipulation above refered to.</p>

s was ah actioh of trespass, tried at the Schéúectady circuit, in September, 1827, before the Hon. William A. Í)uer, one of the circuit judges. The, declaration was in trespass quare clausum fregit and de bonis asportatis. The defendant pleaded the general issue, and gave notice of special matter intended to be given in evidence. Thii The parties were owners of adjoining lands, between which there was a division fence, extending on a line north and south.

This was an action of ejectment, tried at the New-York circuit, in March, 1828, before the Hon. Ogden Edwards, one of the circuit judges. The premises in question were claimed by the lessors of the plaintiff under a deed conveying the same with other lands, executed by Nichdlas Bayard to Thomas Marston and six others, as joint tenants, bearing date 20th December, 1771, duly acknowledged and recorded. The consideration expressed in the deed was £10,000.

<p>Where, in consequence of the want of ordinary care and skill in foundations* a,house, about to be erected, damage was sustained by the owner of an adjoining house, and the parties thereupon entered into an agreement, by which it was stipulated that the work should proceed, that a partition wall should be built for the benefit of both parties, and that the damages and compensation should be passed upon by arbitrators ; which submission was revoked previous to an award made, and an action-for breach of covenant brought by the person who built the house to recover a compensation for a portion of the wall, in which action the defendant set off his damages, it was held, that such damages were a legitimate subject of consideration in such action of covenant, under the agreement between the parties, and having been submitted to and passed upon by a jury, a suit could not subsequently be sustained for a recovery of the same</p> <p>It seems that where a defence has been insisted on in a former action, submitted to and passed upon by a jury, and not objected to by the plaintiff in such action, although such defence be not the subject of set off in such action, a party will be precluded from subsequently maintaining an action for the subject matter thus set off by way of defence.</p>

<p>Demurrer to plea in abatement. The declaration contains nine counts. The first count states that the defendants were the owners of a certain vessel or steam-boat called the Constellation, whereof R. G. Cruttenden was master, used and navigated upon the Hudson river, between the cities of New-York and Albany, for the conveyance and transportation of goods and chattels for hire and reward, touching on her passages up and down the river at the village of Newburgh, for the landing and delivery of freight, goods and chattels ; that the plaintiffs, to wit, the president, directors and company of the Bank of Orange County, on the 15th November, 1827,. at the city of New-York, caused to be delivered to the captain a parcel of bank notes of the value of $ 11,250, to be safely and securely carried and conveyed in the said vessel or steam-boat from the city of New-York to the village of Newburgh, and there to be delivered to one William Phillips, for certain freight and reward; and the said master then and-there took and received the same for the purposes aforesaid; and although the said vessel or steam-boat on the same day safely arrived at Newburgh, and no dangers of the seas, nor the act of God, nor the enemies of the people, Sic. prevented the safe carriage of the said bank notes, yet the plaintiffs averred that the said defendants, or their said agent, not regarding their duty in that behalf, but contriving, Sic. to deceive and defraud the plaintiffs, did not deliver the said bank notes to the said William Phillips, but so negligently, carelessly and improperly conducted the carriage and conveyance thereof, that for want of due care in the defendants, their servants and agents, the said bank notes were wholly lost to the plaintiffs. The second count states that the defendants were common carriers of goods and chattels, according to the custom of the state, and that the bills were delivered to them to be carried from New-York to Newburgh, for certain freight and reward; that although the vessel arrived, the bills were not delivered, but were lost for the want of due care, and through the negligent, careless and improper conduct of the defendants, their servants and agents. The third, sixth and eighth counts are substantially like the first, ánd the fourth, fifth and seventh counts are like the second count. The ninth count is in trover. To the ninth count, the defendants pleaded the general issue, and to the first eight counts they, put in' a plea in abatement, that tin the day in the said several counts of the declaration mentioned, 54 other persons, (naming them,) together with the six defendants, were joint owners and proprietors of the vessel or steam-boat in the declaration mentioned ; and that if any such injury happened as is complained of in the said several counts, the said 54 persons are jointly liable with the defendants for the same, as such joint owners and proprietors, &c. The plaintiffs .demurred to the plea in abatement, and the defendants joined.</p>

This was an action of assumpsit, tried at the New-York . . . r ’ circuit, m June, 1828, before the Hon, Ogden Edwards, one of the circuit judges, j o The suit was by the plaintiff, as payee against the defendants> as makers of a promissory note. On the third day of grace payment was demanded at the counting house of the defendants, of a clerk therein, (the defendants not being Present’) w^° sa^ the note W0UId not be paid. The defendants had stopped payment a few days before.

This was an action of assumpsit by the payees against the drawer of a bill of exchange, tried at the New-York circuit, m June, 1828, before the Hon. Ogden Edwards, one or the circuit judges. The bill bears date the 15th December, 1825, at New-York, and is drawn on Messrs. Phillipon & Co., Havre, for 6839 y/o- francs, payable to the plaintiffs or order. On the 26th January, 1826, it was presented for acceptance, which was refused for want of advice.

This was an action of ejectment, tried at the Washington . . . u , TT —. _ 0 circuit, in J une, 1828, before the Hon. Esek Cowen, one of tJje circuit judges, . .

This was an action of debt against the defendant, as sheriff of the county of Columbia, for the escape of a Pr^soner execution, tried at the Columbia circuit, in September, 1827, befeore the Hon. William A. Duer, one of the CÍrCUÍt judSeS-' The plaintiff had a judgment against one Reuben-Ranny, on which he caused a ca. sa. to be issued, by virtue of which Ranny was arrested previous to its return, to wit, the first Monday of January, 1823, by James Warren, then sheriff of…

Error from the Yew-York common pleas. Austin sued Purdy in the common pleas to recover for work, labor and services performed by the plaintiff as a cartman for the plain-■re 7 7 .7 7 , 1 t pi titt, a house-builaer, or contractor tor the buildmg 01 houses, &c. The declaration besides the count for work, &c. con- . ’ tamed the usual money counts. The defendant pleaded the general issue and the statute of limitations. The plaintiff replied a new promise.

This was an action of assumpsit, tried at the Columbia circuit, in September, 1827, before the Hon. Wm. A. Duer, one of the circuit judges.

<p>T his was an action of trespass and false imprisonment, tried . . . 1 * _ at the Saratoga circuit in November, 1827, before the Hon. R,EUBBN Hyde Walworth, then one of the circuit judges. 7 v °</p> <p>The false imprisonment complained of was an' arrest on 3d August, 1827, on an execution issued by a justice of the peace, in a suit in a favor of the present defendant against the plaintiff, on which he was detained in custody about two hours, when he paid the amount thereof. It appeared in evidence that on the 9th July, 1827, Man being a constable, procured from a justice of peace two summonses in his own * . J 1 favor against Putnam, both returnable on the 21st July; Man cai]e(j on Putnam and told him he had a summons for him and showed it to him. Putnam said he was clear of that, he had taken the benefit af the act. Man asked to see the discharge, which was handed to him, and after reading it said the summons was of no use, and added something about let ting the suit drop, and handed the summons to the plaintiff. He then went away and returned the other summons to the justice with an endorsement thereon, purporting that it had been personally served by him on the 10th July 1827, charging $1,44 fees, and signing the same as constable. On the return of the summons, judgment was rendered by the justice in favor of Man, Putnam not appearing. The execution oti which Putnam was arrested was issued by the justice at the particular request of Man. On the trial of the cause the evidence in relation to the issuing and return of the summons was objected to by the plaintiff, and the evidence relative to the service and what took place at the time thereof was objected to by the defendant. The evidence however was received, and the questions of the law leserved for the opinion of this court. The judge charged the jury that under the questions reserved they must consider Man as having the right to serve the summons in his own favor ; that if they were satisfied that the summons returned to the justice was actually served, the defendant was entitled to a verdict; but if the defendant had served only the summons which he left with the plaintiff, and that it was left with him for the purpose of deceiving him, and that the plaintiff had never seen or heard of the summons which was actually returned, it would be their duty to find for the plaintiff, subject to the opinion of this court upon the questions reserved. The jury found a verdict for the plaintiff, with $35 damages.</p>

This was an action of slander, tried at the Madison eircuit, in March, 1828, before the Hon. Nathan Williams, one of the circuit judges. The declaration contained three counts. In the inducement fo jirst coun|;) jt was stated that at the time, &c. and long before, the plaintiff was a merchant buying and selling goods, wares and merchandize; and as such merchant , - , . . , „ . . kept honest, just and true books of account with his customers.

<p>. This cause came before the court on a case made after a tnal at the circuit on two issues of fact, where a verdict was found for the defendants on one of the issues, subject to the opinion of this court, and for the plaintiff on the other issue ; .r . f . . and on a demurrer to tour special pleas, interposed by the P^11^ to two avowries and cognizances put in by the defondants to the declaration of the plaintiff in an action of r ]v;„ rePleVm-</p> <p>The declaration is in the usual form in an action of replevin f°r taking certain goods and chattels, the property of the plaintiff. The defendant Dean avows, and the defendant Ens-worth, as his bailiff, makes cognizance in four avowries, &c. differing in form, but agreeing in substance. In the first avowry it is stated, that one Peter W. Dyer being lawfully seized of a good, absolute and indefeasible estate of inheritance in fee simple, of a certain farm in the declaration mentioned, by indenture bearing date 13th March, 1823, for the consideration of $550, did grant and convey the same to Dean, (the avowant) and to his heirs and assigns forever, whereby Dean became seized, &c. and being so seized, he on the same day demised the same premises, which premises were holden under such demise for three years, ending on the 13 th March, 1826, at and under a certain yearly rent, to wit, the rent of $38,50, payable on the 13th March annually; and because $38,50 of the rent aforesaid, for one year ending on the 13th March, 1826, was due and in arrear to Dean, he well avows, and Ensworth well acknowledges the taking, &c. and justly, &c. as, and for and in the name of a distress for the rent so due and in arrear, &c.; wherefore they pray judgment and a return of the goods, &c. The second avowry is like the first, except that the demise is for ten years. The third avowry differs from the others in stating that the deed executed by Dyer to Dean, was an indenture •by way of mortgage, and that by an agreement entered into between the parties thereto, the same was to be defeasible upon the payment of $550, together with the rent revserved and to accrue. The fourth avowi-y is like the second, except that it states, in addition to the facts set forth in the second, an assignment of the demised premises from Dyer to Brown, the plaintiff.</p> <p>To these avowries the plaintiff put in six pleas. In the first, he denies, the seisin of Dean, the demise to Dyer, the tenancy of Dyer, and the assignment of the demised premises to him, the plaintiff. In the second, he alleges, that on the 4th April, 1826, Dyer, by indenture for the consideration of $1345, granted and conveyed to him the farm, which indenture was on the same day acknowledged, and on the 20th April, 1826, recorded in the clerk’s" office of the county of Otsego; and denying the grant of the premises to Dean, and the demise to Dyer. In the third plea, in answer to the first avowry} he says, if Dyer did convey to Dean as alleged in the avowry, Dean has not procured the conveyance to recorded; he then sets forth the making and recording of the conveyance to him, avers himself, to be a bona fide and innocent purchaser for the sum of $1345, actually paid, without notice of the previous conveyance to Dean ; and that he entered and took possession of the premises. In the fourth plea, in answer to the second avowry, the plaintiff says, that if such deeds were executed between Dyer and Dean, they are not recorded according to the form of the statute ; and that on, &c. a deed was executed of the said farm to him the plaintiff, and recorded, &’c. as the last plea. In the fifth plea, in answer to the second and fourth avowries, the plaintiff says, that if the deed and lease set up in the avowries were executed between Dyer and Deán, they were so executed as a mortgage to secure $550 with interest, to be paid in ten years, and that the same have not been recorded ; he then avers the deed to himself, the recording, &c. In the sixth plea, in answer to the third avowry, the plaintiff says, that the said indenture of mortgage and lease are not recorded, and that on, &c. he became a bona fide purchaser, &c. without notice, became seised, setting forth the deed to him, its record, and that he entered' into possession of the premises.</p> <p>To the first plea the defendants joined issue ; to the second, third, fourth and fifth they demurred; and to the sixth they replied, that the plaintiff, at the time of the conveyance to him, had notice of the previous conveyance to Dean, and that the premises were holden under him by lease, concluding to the country.</p> <p>. The issues of fact joined on the first and sixth pleas were tried at the Otsego circuit in September, 1827, before the Hon. Samuel Nelson, one of the circuit judges. On the trial it appeared that on the 13th March, 1823, Peter' W. Dyer having borrowed of the defendant Dean $550, executed to him an absolute deed of' the farm on which the distress in this cause was made, and took back a lease from Dean for the term of ten years, in which was reserved an annual rent of $38,50, and which contained a covenant that on the repayment of the $550, with the interest or rent reserved, that Dean should re-convey the farm to Dyer. Neither of those instruments were recorded, it having been agreed at the execution of them that the transaction should be kept a secret. In addition to the conveyance of the farm, Dyer, together with one Farnham, his partner in trade," executed a bond to Dean to secure the payment of the $550, with the interest thereof. Dyer paid the interest in 1824 and 1825. On 4th April, 1826, Dyer, for the consideration of $1345, paid or secured to be paid by negotiable notes, conveyed the farm to the plaintiff; which conveyance was duly recorded; notice of the previous conveyance to Dean, and of the lease from Dean to Dyer, not being brought home to the plaintiff". On the 13th May, 1826, Dyer and Farnham having failed, Dean made a distress for the rent, which became due on the lease on the 13th March preceding; for the taking of which distress this action was brought.</p> <p>The evidence shewing the nature of the transaction between Dyer and Dean was objected to on the trial by the defendants; because, 1. In an action of replevin, the tenant is not allowed to dispute the title of his landlord under which he has entered into possession; 2. That the plaintiff having entered under Dyer, is estopped by the indenture of lease executed to him by Dean; 3. That the relation of landlord and tenant having been shewn to exist between Dean and Dyer, and the plaintiff having entered under Dyer, though by an absolute conveyance in fee in law, must be regarded as the tenant of Dean; 4. That the evidence offered substantially went in support of the pleas which were demurred to; and 5. That the issue joined upon the sixth plea was an immaterial issue, and ought not to be tried. The judge decided he would receive the evidence, subject to the opinion of this court on a case to be made; and after the evidence was closed, the jury, under his direction, found for the defendants on the jfirst issue, and assessed the damages at $42,75; and for the plaintiff on the sixth issue, subject to the opinion, of this court.</p>

Error from the New-York common pleas. Holden sued Ruggles in the court below in an action of covenant, and geciare¿ on an instrument under seal, bearing date 3d May, ° v 1826, executed by Ruggles, attached to another executed by one Grove Goodrich.

Error from the New-York common pleas. Martin sued Little in the court below, in an action of assumpsit for use 7 ,. r , T , . and occupation ot a house. In August, 1826, it was agreed between the parties that the defendant should take a lease of the house for five years, at the rent of $300 per annum.

This was an action of ejectment, tried at the Ulster circuit in November, 1826, before the Hon. Samuel R. Betts, then one of the circuit judges., 'h'he question in this case depends upon the construction to-be given to the last will and testament of Jacob Ten Broeck, un nnto sucb child or children surviving such issue of my Said daughter Maria, such share as would have descended to his, her or their deceased father or mother in equal Parts-' an^ to tbeir and each of their…

Error from the Monroe common pleas. Woodworth sued McBride in a justice’s court, and declared against him in an action of covenant, for that the defendant on the 17th November, 1824, by an instrument under seal, agreed to transport 10,500 barrel staves in a canal boat to Albany as r J expeditiously as possible, (the dangers of canal navigation excepted;) provided the ice in the canal and other unforeseen accidents did not prevent, the staves to be delivered in Albany before…

Demurrer to declaration. The plaintiff declared as the indorsee of a promissory note, payable to Lawrence Power , .. . . . T t, and company, alleging an endorsement by Lawrence Power and company, without setting forth the names of the persons composing the firm. The declaration contained also the common money counts. The defendant demurred 'to the whole declaration, assigning special causes; the plaintiff ... Joined. ....

This was an action of ejectment, tried at the Columbia c;rcuit in April, 1827, before the Hon. William A. Dubr, 1 7 one of the circuit judges. The lessors of the plaintiff claimed to recover a farm for breach of conditions contained in an unexpired lease for lives °f the premises, bearing date in 1795, executed by the ancestor of the lessors of the plaintiff to the father of the defendant, and under which he claimed title.

This was an action of ejectment, tried at the New-York circuit, before the Hon. William A. Duer, one of the cir- .. ■ , CUlt judges.

This was an action of assumpsit, tried at the Madison circuit in April, 1828, before the Hon. Nathan Williams, one of the circuit judges. The action was on a promissory note given by the defendants to • the plaintiff The declaration contained a count' on the note, and also the common money counts. The plea was the general issue.

This was an action of replevin, tried at the Rensselaer cir- , cuit in November, 1827, before the Hon. Nathan Williams, one of the circuit judges. William Chapman (the plaintiff) and one Elbridge Green were partners as clothiers. In the year 1826, they were , • employed by one Robert Patterson to dress and finish a large quantity of satinets.

Demurrer to declaration. The declaration is in assump- . . ± sit, and contains seven counts.

Demurrer to plea. To a declaration of debt on judgment, the defendant pleaded that on the 30th May, 1818, he the defendant, having been actually imprisoned in the debt- or’s jail in New-York for sixty days then last past and upwards, upon execution in a civil action, within the true intent and meaning of the act for giving relief in cases of insolvency, and the acts amending the same, application was made to ithe recorder of New-York by one Samuel Townsend, a creditor of the…

This was an action of covenant, tried at the Yates circuit in February, 1828, before the Hon. Enos T. Thkoop, then one of the circuit judges.

This was an action of ejectment, tried at the Orange circuit before the Hon. James Emott, one of the circuit judges. The action was brought for the recovery of an undivided eighth part of certain premises in possession of the defendant, parcel of a farm whereof Amos Miles, the ancestor of the lessor of the plaintiff, died seised and possessed, and of whom she was one of eight heirs at law.

This was an action for false imprisonment, tried at the Onondaga circuit, before the Hon. Enos T. ThroPp, then one of the circuit judges.

This was an action of debt against a sheriff for the escape of a defendant in execution, tried at the Columbia circuit, in April, 1828, before the Hon. William A. Duer, one of the circuit judges, jo The declaration set forth a judgment in favor of the plaintiffs against William Badgley for $1184,40, the issuing of a Ca. sa., the arrest of the defendant in the execution, and his escape on the 7th September, 1827.

Demurrer to declaration. The plaintiff declared in covenant, for that he, together with several other persons, on the 10 th November, 1806, executed an indenture of lease to the defendant of a lot in the village of Utica, for a term commencing in July, 1808, and ending in January, 1829, reserving an annual rent; that by the indenture of lease, the defendant covenanted, at his own proper costs and charges, to bear, pay and discharge all taxes, charges and impositions, which…

This was an action of debt tried at the Chenango circuit in July, 1827, before the Hon. Samuel Nelson, one of the . .... circuit judges. The declaration contained a count in debt on a judgment rendered by a justice of the peace of the county of Susquehannah, in the state of Pensylvania, on the 16th March, 1820, for the sum of S70,09¡-, and also the common money counts. The defendant pleaded nil débet.

This was an action of assumpsit, tried at the New-York circuit in March, 1828, before the Hon. Ogden Edwards, one of the circuit judges. The plaintiff was the shipper of the principal part of a cargo embarked on board a ship at New-York for Havre, and some additional freight being wanted to make out a full cargo, H. D. and E. B. Sewall, of whom the defendant is the survivor, were applied to by one Wood, the ship’s husband, in May, 1825, to make a shipment by the vessel.

Error from the Saratoga common pleas. Field sued Bradley before a justice of the peace, and declared on a promissory note given by the defendant to the plaintiff for the sum of $14,26, dated May 8,1816.

Error from the New-York common pleas. This was an . - ^ r , , , , , , , action ot trover, tor a horse taken and sold under an execut¡on on a judgment in favor “of Craney against Shields, Hoit , . . ° , , , . a , . , , ’ . being the omcer who made the sale.

<p>This was an action of assumpsit, tried at the New-York circuit in April, 1827, before the Hon. William A. Duer, °ne of the circuit judges.</p> <p>On the 19th May, 1825, the defendants sold to the plaintiffs a bill of exchange for £1000, drawn by them upon •^•essrs- Wain right and Shiels of Liverpool, (England,) payable 60 days after sight. The bill was accepted on the 20th ^une> and protested for non-payment on the 22d August. Information of the failure of the acceptors arrived in New-York on the 27th September. The plaintiffs, (who reside in Boston,) on the 30th September wrote their agent, residing ™ New-York, where also the defendants reside, that they had received advise that the bill had not been paid, and would be returned from the bankers on the next day; that the original bill, with the protest, would no doubt be received . ° \ m a tew days, and desiring the agent to procure security. The letter was received by the agent on the 3d of October, and on the next day he gave notice to one of the defendants, (who were- partners,) and demanded security. On the 4th of October the plaintiffs enclosed the bill and protest to their agent, who immediately, on receiving the same, shewed the protest to one of the defendants. The agent had purchased the bill for the plaintiffs. His name did not appear upon it, but the defendants knew that he acted in behalf of gentlemen in Boston. The mail leaves Boston every day for New-York at one o’clock P. M., and arrives early in the morning of the second day thereafter. The jury found a verdict for the defendants, which was now moved to be set aside.</p>

' Demurrer to replication. Scire facias quare executionem against heirs at law, on a judgment against the ancestor, to be levied df the lands and tenements whereof the ancestor died seised, and which descended to the heirs. The defendant.s pleaded riens per descent.

Demurrer to plea. The plaintiff declared in replevin for taking a quantity of household furniture, averring the same to ]je his goods and chattels. The defendant avowed the talc,- . , mg as sheriff of the county of Kings by virtue of a writ of tes¿afum fieri facias in a suit of R. Wells against Daniel S. Gris-wold as the goods and chattels of Griswold, the same being ™ possession of Griswold. The plaintiff demurred to this avowry, and the defendant joined.

This was an action of covenant, tried at the Rensselaer cir-c™t= in November, 1826, before the Hon. William A. Du-EE) 0ne of the circuit judges. The action was against a constable and his sureties on a bond given for the faithful performance of the duties of the .... constable, who had neglected to return two executions delivered t0 h™’ issued on judgments obtained by the plaintiff, one against Enos for $4,26, and the other against one Chapman ior $58,20.

This was an action on a policy of insurance, and came before the court on a case made by the- parties.

This was an action of slander tried, at the New-York circuit in October, 1827, before the Hon. Reuben Hyde Walworth, then one of the circuit judges. The declaration alleged special damage.

This was an action of assumpsit tried at the Oneida circuit in April, 1828, before the Hon. Nathan Williams, one of ,L . , , the Circuit judges. The declaration contained a count on a promissory note for $1000, dated 28th September, 1825, payable in 90 days, to Henry Green or order, and endorsed by him to the plain-y ’ J r tins and the common money counts.

Motion to set aside capias ad satisfaciendum for irregular!ty. The ca. sa. was issued on the 29th day of July last, tested on the 16th day of May, and returnable on the third Monday of October then next. The defendant was arrested on it on the 14th day of August.

On the coming in of the return v , ° . to the alternative mandamus, the relators were required on motion of Millard to plead or demur.

<p>to a defendant ¿°¿g °o triaTat a circuit court n™ice^he canafterwards fendlnt with the plaintiff’s costs of that circuit, though he subsequently obtains a verdict.</p>

Motion to strike out plea of puis darrein continuance. 1 * This suit was commenced at the last May term. The decíaration contained the common counts for goods, wares and merchandizes, sold and delivered the intestate in his life time, The defendant pleaded the general issue and plene administravitprater, $80.

Taxation of costs. The plaintiff in an action of assumprecovered a sum less than fifty dollars. The defendant in his bill of costs charged for making up a record of judgment, which was allowed by the taxing officer ; from which taxation there was an appeal to this court.

<p>It is irregular to serve a copy of an affidavit on which a foundedSprevf ous to its being swom to.</p>

Motion to set aside an inquest. The issue in this cause-was joined on the sixth day of August. On the eleventh, not’ce °f trial was given for the Albany circuit, to be holden on the first Tuesday {first day) of September.

Taxation of costs. In this case a question arose, whether a charge of sixty two and a half cents paid a commissioner for an order to stay proceedings, was taxable.

Taxation of costs. The taxing officer allowed in this case a charge for engrossing a notice of special matter subjoined to the defendant’s plea containing 245 fol. on the nisi prius roll; and a like charge for engrossing the same notice on the judgment roll. This was objected to, on an appeal from taxation.

Practice as to settlement of bill of exceptions. This . , . _Tr .■ „ , T . cause was tried at the Washington circuit on 10th June last.Exceptions were taken by the defendants to decisions of the r, ' judge in the progress of the trial, and after the testimony was cl°se(l on both sides, the counsel excepting, in. the .presence of the opposite counsel, stated and repeated his exceptions to bhe ju On this state of facts cross motions were made by the parties ; by the defendants…

Motion to quash indictment. At the general sessions Golden in Monroe in March, 1829, the defendant and one Burragfe Smith were indicted for having with others conspireck without any legal authority or justifiable cause, to carry 0ff and.’ transport one William Morgan to some place Unknown; and that in pursuance and prosecution of such consPiracy> they confined him in a carriage and furnished means fdr his abduction.

Motion to set aside attachment. The attachment was issued by the recorder of New-York, on the petition of a creditor stating that the parties proceeded against were indebted to his firm in the sum of $100 or upwards; that they had departed this state, or were concealed within it, with intent to defraud their creditors, or to avoid being arrested by ordinary process of law.

The defendant after issue joi»< ed paid a certain sum into court in satisfaction of the plain- ^ ^ tiff’s demand and of the costs then accrued. The plaintiff' took the money, and proceeded in his suit. On the trial of . ^ a the cause, after the evidence was closed on both sides, the pl^tiff submitted to a nonsuit. The defendant consequently became entitled to costs.

Motion as to costs. The plaintiff sued R. Sedgwick, H. D. Sedgwick, T. Morris and R. Reid, in an action of false imprisonment. R. & H. Sedgwick pleaded jointly the general issue, and. a special plea of justification. Morris and Reid put in the same pleas separately. The plaintiff replied to the special plea of the Sedgwicks, and demurred to the special pleas of Morris and Reid. The Sedgwicks demurred to the replication.

The action Was assumpsit. The defendant pleaded the general issue and an insolvent discharge, exempting: his body from imprisonment.

A judgment was obtained in the Onondaga common pleas against the relator for $1000 in an action of tort. The plaintiff issued an execution setting forth the judgment correctly, but directing the levy of only $800. The amount directed to be levied was collected, and then the plaintiff issued a second execution directing the levy of the remaining $200; to set aside which execution, a motion was made to the Onondaga C. P., who refused the application.

Motion to set offjustices’ judgments against a judgment in this court. A judgment was rendered in favor of the plaintiff in this court .for $94,68. A motion was made by ,jefendant t0 set off three justices’ judgments, (or as much thereof as should be necessary,) amounting together to $114,55, rendered against the plaintiff in favor of one How-land, and assigned by him to the defendant previous to the rendition of the judgment in this cause.

<p>Under an brcorporation* of New-York, direeling the bliingup,altering or amending a assessment un(^® the 269th secíélative*tothat city; and vícmity" ” L-longing to the equally^hable to assessment as the property of individuthe statute di- ^ expense of the ™a™bTbome by the corpa-'</p>

This was an action of ejectment. The plaintiff claimed J r to recover the equal undivided fourth part of a lot of land situate in the county of Saratoga. Nicholas Visscher, the maternal grandfather of the wife of Haverly, was the owner of the lot in question, and by his last will and testament bearing date 30th June, 1778, devised the same to his daughter-Margaret, the wife of John Wemple. Wemple and wife had four ch'ldren, of whom th e wife of Haverly was one.

This was an action of dower unde nihil habet, tried at the Delaware circuit, in June, 1828, before the Hon. James Bmott, one of the circuit judges. The defendant pleaded several pleas, one of which was non-tenure.

This was an action of ejectment, tried at the Oneida circuit in April, 1828, before the Hon. Nathan Williams, one of the circuit judges. The defendant was the tenant of the lessor of the plaintiff of a tavern stand in the village of Utica. He entered into possession on the 29th May, 1827. No particular time for which he was to hold was agreed upon, nor was the rent fixed between' the parties.

This was an action of assumpsit, tried at the Oswego circuit, in December, 1827, before, the Hon. Nathan Williams, one of the circuit judges. The declaration contained the common money counts. The defendants pleaded, 1. Non assumpsit; 2. Non assumpsit infra sex annos ; and 3. An insolvent discharge under the act of 1813, obtained 27th April, 1818. The plaintiff took issue upon the second plea, and to the third replied a new promise; which the defendant denied by a rejoinder.

Eeeoe from the New-York common pleas. This was an ac^on °f trover, brought by McLachlan against Wright for the taking of two horses, two drays and the harness of the same, a pleasure wagon and harness, six or seven kegs of beer, and several empty hogsheads and barrels. The property was taken by virtue of executions on judgments in favor of Wright against one Bacon.

<p>This was an action for false imprisonment, tried at the . r 7 Schenectady circuit in January, 1828, before the Hon. Wil-LIAM A- DüEE’ then 0ne °f the circuit judges,</p> <p>In June, 1827, Stephen Mix, a brother of the defendant Mix, obtained from E. L. Davis, Esq. a justice of the peace of the county of Schenectady, a warrant against the plaintiff on a charge of having felonously stolen a ten dollar bank bill. Stephen Mix was deputed to serve the warrant, . . . , . . .' . and went in pursuit oí the plamtitt, whom he overtook on the cana] a few miles west of Schenectadv; and having lost the - ’ ° warrant, he only requested the plaintiff to return, which the plaintifF refused to do. Stephen Mix then obtained another warrant from I. I. Van Epps, Esq. another justice of Schenéctady county, on the same charge, which was issued against John Doe, the name of the plaintiff not being known by the complainant, and delivered to the defendant Clute, who was informed by Stephen Mix that the plaintiff had stolen a ten dollar bill belonging to D. Mix, the other defendant. Clute and Stephen Mix pursued and overtook the plaintiff. When they did overtake him, Stephen Mix said he wanted the plaintiff as a witness in relation to a ten dollar bill dropped in a tailor’s shop in Schenectady; but Clute, the constable, did not hear this remark. Clute arrested the plaintiff, and carried him before the justice Van Epps, where the plaintiff stated his name, and the justice altered the warrant by inserting his name, and then re-delivered it to the constable. The plaintiff asked permission to go to Schenectady to settle with the defendant D. Mix, or to obtain counsel. The justice directed the constable to keep the plaintiff in custody until the next morning, when he would be tried by a special sessions ; but he appointed no time or place for the holding of the sessions, nor did he designate or summon any justices to associate with him in holding the same, nor did the complainant or the constable make any inquiries respecting it. This justice heard no more of the matter. The constable Stephen Mix and the plaintiff then proceeded to Schenectady, and went directly to the shop of the defendant D. Mix, who told the plaintiff that the matter could not be settled, and directed the constable to take the plaintiff to the justice’s office to be tried according to law. The constable, instead of going to the justice’s office, took the plaintiff to a tavern, where he was followed by the defendant D. Mix. The constable and the plaintiff went into a back room together. D. Mix did not go with them, but whilst they remained in the room, walked in the hall of the house. The constable came out of the room and handed to D. Mix ten dollars. Whilst the plaintiff was detained at the tavern, E. L. Davis, Esq. the justice who issued the first warrant, repeatedly told the constable and D. Mix to bring the plaintiff before him at his office. He was not brought. The constable told justice Davis that Mix had got his money and he his costs, and Mix confessed that the plaintiff had given him eleven dollars to settle the matter. Evidence was given, in SUpport 0f the charge, that á felony had been committed, but it entirely failed to establish the fact,</p> <p>The evidence being closed, several objections were urged to the plaintiff’s right to recover, which were overruled by the judge, who charged the jury that the warrant issued by justice Van Epps previous to the insertion of the name of the plaintiff was no protection to the officer; that an officer has no authority to arrest a person upon a criminal charge without warrant and upon information only, except in cases where there is not time to obtain a warrant, and where an escape would take place unless the arrest was made; but that in this case, there being sufficient time to obtain a warrant, the constable was not justified to arrest upon information. That if the jury believed that the defendants acted in concert in taking the plaintiff into the back room of the tavern, and that they intended to keep him in custody, and to work upon his fears for the purpose of extorting money from him, they were both liable, and a verdict ought to be rendered against them. The jury found for the plaintiff, and assessed damages against Clute at six cents, and against Mix at $25. The cause came before the court on a bill of exceptions.</p>

This was an action of assumpsit, tried at the Seneca cir-cup jn April, 1829, before the Hon. Daniel Mosely, one , •r. . of the circuit judges.

Error from the Oneida oyer and terminer. The defend- ■ . . . __ ants, being the president and two of the directors ot the Mohawk Turnpike Company, were indicted for a misdemeanor. The fact charged, in which the offence consisted, was that the road of the company, of which they were the president and two of the directors, was and had been out of repair for a length of time. The defendant Kane was convicted, and the others were acquitted.

Error from the Seneca common pleas. Beach sued Chamberlain, a constable, and the others his sureties, before a -justice of the peace for a liability incurred by Chamberlain * * * » as a constable, in relation to an execution issued on a judgment jn favor of Beach against three persons of the names of Knox, Scutt and Stark, and obtained judgment. The defendants appealed to the Seneca common pleas.

Demurrer to rejoinder. The declaration is for goods, wares and merchandize sold the intestate in his life time. It also contains the common money counts.

Motion to set aside report of referees. The plaintiffs declared on a promissory note for $3000, bearing date the 26th June, 1818, and payable the 4th September then next. The declaration also contained the common money counts. The defendant pleaded the general issue and the statute of limitations,- and gave notice of set-off The plaintiffs replied a new promise. The cause was heard before referees in October, 1829. The note declared on was produced.

This was an action of assumpsit, tried at the Cayuga circuit in January, 1829, before the Hon. Daniel Mosely, one 0f tfie circuit judges.

Tais was an action of assumpsit, tried at the New-York circuit in April, 1828, before the Hon. Ogden Edwards, 0ne of the circuit judges. ° rp, ■ ¿ £ £ lhe action was on a promissory note tor the sum of $*265,67, bearing date the 12th September, 1825, given by the defendant Boyd, a partner of a mercantile house *ra<*mg under the name of Boyd and Frost. Boyd only was taken, and he interposed the defence of infancy.

This was an action of debt, tried at the Wayne circuit in June, 1828, before the Hon. Enos T. Throof, then one of the circuit judges. ° . . . . - . , 1 he declaration was on a joint and several bond, execute(^ ^7 n^ne persons, bearing date 21st September, 1824, conditioned for the payment of S8000. Four of the obligors on^7 appeared to have been sued.

Demurrer to replication. The declaration was on a scire facias quare executionem non on a judgment obtained by the intestate against the defendants for 11843,54 in assumpsit, The defendants pleaded, that in the life time of the intestate a writ of fieri facias was issued upon the judgment obtained against them, directed and delivered to the sheriff of Onondaga, who, by virtue of the same, levied upon the property of the defendants to a large amount, to wit, to the amount of…

This was an action for false imprisonment, tried at the Oneida circuit in October, 1828, before the Hon. Nathan Williams, one of the circuit judges. Strong, as a constable, arrested the plaintiff on an execution against him in favor of one Balis.

Error from the Livingston common pleas. The house-furniture of one Pierce was levied upon by a deputy of . 1 J 1 J the sheriff of Livingston by virtue of two executions amounting toSet^er to the sum of #143,26. The levy was made on the 15th January, 1827; and the defendant in the execution was permitted to remain in possession of the property levied on. The executions were returnable in ninety days, being issued on justice’s judgments.

This was an action for false imprisonment, tried at Oneida circuit in October, 1828, before the Hon. Nathan Williams, one of the circuit judges. ■ The false imprisonment complained of, was an arrest in a civil suit on a warrant issued by a justice of the peace on 29th a -.rx - • i i . r . August, 1827, agamstthe now plaintiff at the suit of the present defendant and another person.

<p>Infants are liable in the same maimer as adults for trespass and assault.</p> <p>Where the injury is not the effect of an unavoidable accident, the person by whom it is inflicted is liable to respond in the^nfferer.t0</p> <p>It seems, that might probZ b.1i be con" avoidable accicase of infants’ which would ridereV?n°the case of adults,</p>

This was an action of slander, tried at the Herkimer circuit in September, 1828, before the Hon. Nathan Williams, one of the circuit judges. The declaration alleged the words to have been spoken by the wife of Cramer, charging the wife of Wormouth with having stolen a fine lawn cap. The words were set forth in the declaration in the English language. They were proved to have been spoken in the German language. The persons who heard the speaking understood the German language.

This was an action of slander, tried at the Herkimer cir— cuit in September, 1828, before the Hon. Nathan Williams, one of the circuit judges.

This was an action of indebitatus assumpsit, to recover monies alleged to have been paid by the plaintiff for the defendants, tried at the Livingston circuit in October, 1828, before the Hon. John Birdsall, then one of the circuit judges.

This was an action of assumpsit, tried at the Ontario circuit in January, 1829, before the Hon. Nathan Williams, one of the circuit judges. The plaintiffs and the defendant Barker were members of a private association called the Union Line Stage Company. A post coach, 8 horses and 2 sets of harness were sold by the plaintiffs to the defendant, amounting together to the sum of $950.

<p>This was an action for false imprisonment, tried at the Oneida circuit in October, 1828, before the Hon. Nathan Williams, one of the circuit judges.</p> <p>The false imprisonment complained of was an arrest on a justice’s execution issued by Fuller, a justice of the peace, on a judgment confessed before him by the defendant in favor of Balis for $5,49 on the 23d April, 1828. The execution was issued on the 7th May, 1828, on the application of Balis, he making oath before the justice that he would be in danger of losing his demand unless the execution issued before the expiration of 30 days after the rendition of the judgment. The defendant had not a family, and was not a freeholder. The execution, after reciting the judgment, commanded the constable forthwith to levy on the goods and chattels of the defendant, (except such goods and chattels as are by law exempted,) the amount of the judgment, with interest from the 23d April, 1828, and to bring the money before the justice at his office in Whitestown within 30 days, to render to the J plaintiff for his damages and costs; and for want of goods and chattels whereon to levy, commanded the constable to take the body of the defendant and convey him to the keeper of the common jail of the county aforesaid, there to remain until discharged according to law. The plaintiff was arrested on the 13 th May, 1828, and taken to the store of the plaintiff in the execution, where he paid the amount. The plaintiff insisted that the execution having been issued before the expiration of 30 days after the rendition of the judgment, had been issued illegally, inasmuch as it was not called for at the rendition of the judgment. The judge decided that the execution might issue at any time upon the proper oath being made. Several other questions were raised at the trial by the plaintiff which were decided against him, but are not noted here, as they were not insisted on in the argument of the case. The plaintiff excepted td the decisions of the judge, and was nonsuited; to set aside which nonsuit a motion was nQW mac}ei</p>

This was an action of trover, tried at St. Lawrence circuit February, 1829, before the Hon. Esek Cowen, one of the circuit judges. The action was brought for thé recovery of damages for the taking of a horse, waggon and harness. The plaintiff proved that he was the owner of the property, and continuec] jn the possession of it, in the county of Onondaga, until the spring of 1827.

This was an action of assumpsit, tried at the Oneida circuit m April, 1828, before the Hon. Nathan Williams, one 0f the circuit judges. The defendant was the second endorser of a promissory note for $300, bearing date the 28th November, 1826, pay-able 90 days after date, at the Bank of Utica, where the note was discounted on the 2d December, 1826 ; the interest be-ing taken in advance.

This was an action of replevin, tried at the Madison circuit in April, 1828, before the Hon. Nathan Williams, one of the . ., . -i circuit judges. The plaintiff proved that on the 16th May, 1827, he purchased of one Jeremiah Tifft a yoke of oxen, for which he paid $60, which were driven away on the 11th June, 1827, by the defendant.

This was an action of assumpsit, tried at the Schenectady circuit in January, 1828, before the Hon. William A. Duer, then one of the circuit judges. On the 25th May, 1820, the defendant, for the considera* tion of #1231,50, being the assignee of a bond and mortgage executed by one Lampman to one Van Arnum, assigned the ■ 1 same to the plaintiff. The bond and mortgage bore date 1st March, 1810, and were given to secure the payment of $2000.

This was an action of assumpsit, tried at the Onondaga circuit in September, 1827, before the Hon. Enos T. Throop) then one of the circuit judges. The defendants were sued as the endorsers of a promissory note for $450, drawn by the firm of John Rogers & Co. payable to the defendants. The firm of John Rogers & Co* consisted of two persons, viz. John Rogers and Thomas J. Field.

This was an action on a promissory note in these words:. “ Three months after date, for value received, we promise to pay to the order of Gilbert Howell and David Morris one hundred and fifty dollars, payable and negotiable at the Bank of Ontario in Canandaigua. Sept. 30, 1826.” (Signed) ‘ Harry Moore & Co., Wm. Hughes/ and 'endorsed by the payees. The action was brought by the plaintiffs as endorsees against the makers.

ip defendant was indicted for a misdemeanor in his office as a justice of the peace of the county of Monroe, in- refusing to adjourn the trial of a cause depending before him. He was convicted; but judgment was suspended by the court of sessions of that county until the advice of this court could be °bta™ed- One Guernsey was brought before the defendant on a war-ran); issued by him in a civil suit, and applied for an adjourn- , mi . - 1 1 \ . _ . , , ment until the next day.

A motion was made on the first day of term for an order to prosecute the bond given by a sheriff for his appearance, on being arrested on an attachment for not bringing in the body of a defendant returned taken on a capias ; the sheriff not apr 7 u pearing when demanded. Cur. ad. vult.

Motion that a responsible prochien ami be appointed, or ^at proceedings stay. This suit was commenced by the plaintiff, by his father as his prochien ami who was represented to the court as very poor and wholly irresponsible for the costs of the suit.

<p>Motion for order to remove a cause from the superior court of the city of New-York into this court.</p>

A petition was presented, stating that this suit had been commenced for the recovery of a sum of money due as.rent on a lease executed by the testator to the defendant; that the lease had been clandestinely taken from the testator by the defendant, or by . . , ^ / his aid and procurement; and that the plaintiffs were unable to declare, &c. The petition further stated that it was intended to lay the venue in the county of Chenango. The petition was verified by affidavits.

Mqtion for a mandamus. The common pleas of Monroe quashed an appeal for an erroneous recital in the appeal bond of the day on which the judgment before the justice wa s rendered. It was rendered on the twentieth August, but in the bond was recited to have been rendered on the twentyr first day of August, 1819.

The relator was duly elected a member of the Medical Society of the County ofNew-York, but his certificate of membership was refused to be delivered t0 him until he' paid an initiation fee of ten dollars, in compliance with the by-laws of the society. This he refused tp ¿Q . anc] he now asked for a mandamus commanding the so-J ciety to deliver to him his certificate.

This motion was made on an affidavit, stating that an action of ejectment had keen commenced during the present term for the recovery of 400 acres of land in the county of Sullivan; that the princiPal value of the premises consists in the pine timber and other timber thereon; that the defendant, with several persons in his employment, is now actually engaged in cutting down the pine timber with a view of converting the same into logs, boards, &c. and taking and carrying away…

Motion to stay proceedings in ejéctment. On the 14th October last, a declaration in ejectment was served on the tenant for the recovery of the possession of certain lands.

Taxation of costs. The plaintiff charged for fees due sheriff for bringing up a witness on a habeas corpus ad testijicandum at the following rates, viz.: Attendance per diem, $3; expenses per diem, $1,50 ; mileage, 19 cts. per mile; and re-bed upon 9 Johns. R. 328, and 13 id. 123. The defendant insisted that the sheriff was entitled only to the allowance made by the fee bill in 2 R. L. 20.

<p>A rule to ap. inal'ejectment will be ordered vice of the declaration is on defendant on the premises.</p>

Motion to set aside verdict. In November, 1828, the defendant was indicted at the Orleans oyer and terminer for a conspiracy to kidnap William Morgan. In March, 1829, a certiorari was presented to that court removing the indictment into this court, to which a return was made and filed in the Utica clerk’s office on the 18th May, 1829 ; on which day a plea of not guilty, and a replication by the special attorney, taking issue, were also filed in the same office.

Proof of title in partition in cases of default. The default of the defendants having been entered for not appearing and shewing title to the proportions claimed by them in the premises set forth in the petition presented in this case, the plaintiff exhibited proof of his title and an abstract of the conveyance by which the same is held; which proof was a deed in fee of one third of the premises described, from Brockholst Livingston, by his attorney George M. Peckham, to the…

<p>Order for bill of particulars. Issue was joined in this cause on 24th September last; on the 11th November, notice of trial and inquest for the Erie circuit was served at Canandaigua on the agent of the defendant’s attorney, who resides in the city of New-York, for the 14th December. On the 27th Novémber, the notice of trial being then received by the defendant’s attorney, application was made by the defendant to the recorder of New-York for an order for a bill of particulars, which was on that day granted, directing the plaintiff to appear at the recorder’s office on the 20th December, to shew cause why he should not deliver a bill of particulars, and staying all proceedings in the mean time. This order was served in the» city of New-York on the agent of the plaintiff’s attorney, who resided at Buffalo, on the 5th December, and was not received by him until the 14th December. The twentieth of December, the day for shewing cause, was on Sunday. On the 21st December, no peremp tory order for a bill of particulars having been made and served, the plaintiff took an inquest at the Erie circuit, which was now moved to be set aside for irregularity, and on an affidavit of defence on the merits. It also appeared that the plaintiff had previously obtained a default for not pleading, which was set aside on an affidavit of merits at the last August term.</p>

The relator has been appointed, since the first day of J anuaiT instant, a commissioner of deeds in the city of New-York. On presenting himself before the clerk of the common pleas of New-York to take the oath of office, the clerk refuse(j to administer the oath, on the ground that the relator . ’ P . was a minor within the age of 21, and theretore incompetent to the office. The relator applies for a mandamus di- . , . , , . . ,, r r , rectmg the clerk to administer the oath,

Costs in slander of title. The plaintiff declared that on, &c. she was seized in her demesne as of fee as of a good, sure and indefeasible estate of inheritance in fee simple of, in and to a certain lot of land situate, &c.; that the defendant, well knowing the premises, but contriving, &c. to bring the title of the plaintiff in and to the said lot into dispute and disrepute, and to injure and destroy the credit and ability of the plaintiff to pay certain monies, falsely and…

Two suits were commenced by Brewster against Stewart by capias, served on the same day, returnable at the last August term.

A scire facias was issued from the Monroe common pleas against the relator on a recognizance of bail as the manucaptor of Stephen Porter. It was served by a deputy sheriff, who indorsed a return on the writ in these words : “ Served the within on the defendant by leaving a copy thereof marked copy, subscribed J. K. Livingston by Mr. Noyes, Dep’y. at the dwelling house of Jas. P. Fitch, being the last place of residence of the said Thomas Gay within the state, (signed) Jas.

Allowance of interest beyond penalty of bond. At the last Saratoga circuit, a verdict was taken for the amount of the penalty of a bond declared on in an action of debt, and for nominal damages. The bond was dated 22d January, 1806, in the penal sum of $180, conditioned for the payment of $90 with interest.

This was an ex parte application to the court for a rule that the plaintiff file security for costs, on the ground that the plaintiff, since the commencement of the suit, had become insolvent, and had been discharged under an insolvent act.

Claim of landlord for rent to be paid out of the proceeds On the 1st November, 1828, ajfieri facias _ of an execution. was issued in the above cause, and delivered to the then sheriff of Albany for the sum of $613,14, returnable on the 16th February then next.

The report of the commissioners of estimate and assessment in relation to the comtemplated measure being presented for confirmation, objections were interposed on behalf of Cornelius T. Williams, the owner of the principal part of the lands required for the purpose of opening the avenue and continuing the stieets, whose benefits were estimated at $19,275. The facts of the case, adverted to in the opinion of the court, supersede the necessity of here stating them.

Execution for annuity secured by bond. A judgment was entered in this case at the last May term for $1000, the penalty of a bond, and $55,89, the costs of suit. The bond bears date 22d June, 1816, and is conditioned for the payment 0f $80 annually to the plaintiff during her natural life.

An application was made to the court, for a special order for the examination of a candidate for admission as an attorney, on the ground that a -regular order had not been obtained for an allowance for classical studies at the commencement of his term of clerkship.

This was an action of assumpsit, tried at the Oneida circuit ™ April, 1829, before the Hon. Nathan Williams, one of the circuit judges. The defendant was sued as the third endorser of a draft, ¿rawn by a firm of the name of Sprague & Dann on B-. & G. *' ao Bartow, and accepted by them for $350, dated 28th March, 1828, and payable five months after date'.

Error from the New-York common pleas. J. & E. Colins sued Peltier in the common pleas, in an action of assumpsit to recover damages for the breach of a contract in . . . . - . - . „ . , not receiving and paying tor a quantity ot rice alleged to have been sold by the plaintiffs to the defendant. The plaintiffs , , i-, i recovered a verdict and entered judgment, which was brought into this court by writ of error, on a bill of exceptions taken at the trial.

Error or certiorari. The certiorari in this case was directed to J. H. Smith, Esq. one of the justice’s of the peace county of Westchester, in which, after a recital of a willingness to be certified of certain proceedings had beftire justice on the complaint of I. Anderson, I. H. and C. C., commissioners of highways of the town of Harrison in the said county, against Richard Pugsley, touching certain pretended encroachments said to have been made on a certain highway in the…

This was an action of assumpsit, tried at the Madison circuit in March, 1828, before the Hon. Nathan Williams, one of the circuit judges. The declaration was on a note dated 15th February, 1817, for 9600 weight of first quality potash, to be delivered half on ^he first day of July, and the residue on the first day of OcJ - mi . - . . , tober next after the date ot the note. 1 he defendant plead-e<^ non assumPs^ and non assumpsit infra sex annos.

Error from the .New-York common pleas. The error relied on is an error in fact specially assigned, to wit, that on the execution of the writ of inquiry in the suit in the court below, the sheriff and jury, after hearing the evidence in the cause between these parties, which was an action for an assault and battery, heard the evidence in seven other causes, two of which were for assaults and batteries, and one in slander, and heard the arguments of counsel in those several…

This was an action of assumpsit, tried, at the Oneida circuit in April, 1827, before the Hon. Nathan Williams, one of the circuit judges. The plaintiff declared as the endorsee of two promissory notes made by the defendant for the sum of $40 each, dated 4th April, 1825, payable to Jacob Adams or order. The defendant pleaded the general issue and infancy.

This was an action of assumpsit, tried at New-York circuit in February, 1828, before the Hon. Ogden Edwards, one of the circuit judges. The declaration contained a count on a promissory note given by the defendant to the plaintiffs, bearing date the 14th December, 1825, for $3899, payable on demand, with interest, a count on an insimul computassent, and the common money counts. The defendant pleaded the general issue.

Error from the Onondaga common pleas. Story sued. Patten before a justice of the peace, who rendered judgment for the plaintiff. The defendant appealed to the Onondaga common pleas. In the declaration, the plaintiff set forth a judgment rendered in his favor against J. Smith and G. How- , , , „ „ „ . . . . land by Kelly Vase Esq. the issuing oi an execution thereon, an(j the delivery of the same to the defendant, as a constable, J to collect.

This was an action of assumpsit,: tried at the New-York circuit in January, 1828, before the Hon. Ogden Edwards, one of the circuit judges. The defendants drew a bill of exchange- in the name of Roy, Bayard & Co., (the name- of their firm,) dated New-York, 15th August, 1825, upon Messrs.

Error, from the Onondaga common pleas. Stolp sued Van Cortland before a justice and obtained a judgment. Van Cortland appealed to the Onondaga common pleas.

Error from the New-York common pleas. The action in the common pleas was assumpsit, brought by McKeon against Caherty to recover $200 deposited in the hands of the latter as the stake holder of a bet on'a trotting match of made up by McKeon and one Lane.

This was an action of debt, tried at the New-York circuit in March, 1826, before the Hon. William A, Duer, then 0ne of the circuit judges. The declaration contained three counts: 1. On a judgment ™ assumPsih *n favor of the plaintiffs against the defendants, for $481,41, obtained in the term of August, 1804; 2. On another judgment in assumpsit, of the same term, for $461,-27; 3.

^'HIS Was an atition °f trover, tried at the Oneida circuit in April, 1828, before the Hon. Nathan Williams, one of the ClrCuit ÍUÍ%eS- ^ J In April, 1826, Otis executed a lease to one Goodenoe of 15 acres of land in the town of Manlius, Onondaga county, and included in the lease a span of mares, a cow and eight sheep,, and other -personal property to which specific prices were attached, for the term of ten years ; Goodenoe to pay a rent at the rate of $30 per annum, and -to…

The respondents filed their bill in chancery to vacate a sale of lands procured by the appellant, Halsey Rogers, under a judgment of which he was the assignee, obtained originally against Thomas Rogers, senior, (the father of Halsey Rogers and the grandfather of the respondents,) under whom the respondents claimed as devisees.

<p>Error from chancery. In December, 1826, the appellant, as the survivor of the firm of Staffords and Spencer, filed a bill of discovery in the court of chancery, alleging the making of a promissory note by the respondent to the firm of Staffords and Spencer, for the sum of $821,24, bearing date the 14th June, 1814, and payable on demand, alleging the loss or destruction of the note, and averring several acknowledgments of the note or new promises made by the defendant within a year before the filing of the bill, and particularly stating an offer made by an authorized agent of the respondent in August or September, 1826, to pay the face of the note. The bill concludes by praying a discovery and an account to be taken, &c.</p> <p>The respondent in his answer, admits the making of the note, but claims and insists upon the benefit and advantage of the statute of limitations, as if the same had been pleaded in bar to the relief sought. He avers that the note had been fully paid, but when particularly, and how, and by whom, and to which of the co-partners (of the firm of Staffords and Spencer) it was paid, he, on account of the length of time which has elapsed, cannot recollect. He denies having, within six years before the filing of the bill, acknowledged the debt or promised to pay it. He admits that in August or September, 1826, he requested his counsel (a suit at law being then pending on the note in question) to ascertain from the appellant whether he would accept an endorsed note for the sum of $800 as peace money, and not by way of compromise or settlement of the demand, averring to his counsel at the time, and instructing him so to say to the appellant, that the note in question was fully extinguished and discharged. He states that upon that occasion he did not authorize his counsel to say that the $800 note would be given or endorsed by way of compromise or otherwise, in case the appellant was willing to take the same, intending to reserve to himself the right to buy his peace in such other manner as he might see fit; that he was induced to this course from an apprehension that the appellant might, though contrary to the fact, prove some declaration or admission which would subject him to the payment of the whole note, with interest.' He admits that he was informed that an interview took place between his counsel and the appellant, and that the appellant refused to accept less than the whole amount of his demand.</p> <p>Proofs were taken in the cause. The counsel of the respondent, referred to in the answer, was examined, and verified the account given of the negotiation with the appellant in August or September, 1826. Three witnesses, (Joab Stafford and Spencer Stafford, junior, sons of the appellant, and Lewis Benedict,) contradicted the answer in respect to the acknowledgment of indebtedness by the respondent. Joab Stafford testified that in the winter of 1822, ’3, he and a Mri Peckham called at the store of the respondent to purchase fur caps, and that he told the defendant (the respondent here) that he had not brought any money with him to pay for them, an(j that the defendant replied, that neither he nor any of his father’s family need to bring any money with them when they came to purchase goods of him, as there was an old business between him and the complainant, (the appellant here) and the defendant was owing him a good deal of money, more probably than he could ever pay, and that therefore they had better take it out in furs. Spencer Stafford, junior, testified that in the years 1821, ’22 and ’23, he was in the habit of calling at the defendant’s shop every winter and purchasing fur caps and buffalo skins, and the defendant would never take any money in pay from him, alleging as a reason that ihe defendant owed deponent’s father, who is the complainant, a large sum of money, and this was his best and easiest way to pay it. Lewis Benedict testified that in March, 1819, he presented the note in question to the respondent for settlement, and that the respondent then agreed to give a note in renewal payable in September then next, but subsequently declined to do so.</p> <p>It appeared in evidence that the complainant, Spencer Stafford, had been connected with divers persons in business: the names of the firms with which he was thus connected of course had, from time to time, changed, in all of which, however, his interest continued. On the books of Stafford and Spencer, the first of those firms, an account against the respondent was balanced on the 17th March, 1815, subsequent to which there was. an item of charge under date of 18th April, 1815, to the amount of £2.2.0; and the next and last charge was of the date of 14th February, 1817, in which the note in question was debited to the respondent. The next account was in favor of the firm of Staffords, Spencer & Co. commencing in May, 1815, and ending in March 1819, the balance of which against the respondent was £50.15.6; and next an account was opened against the respondent by the firm of Spencer, Stafford & Co. commencing in December, 1822, and ending in December, 1823, the balance of which against the respondent was £18.3.0. On the other hand, it appeared that the respondent had an open, unsettled account against the complainant, commencing in November, 1815, and ending in September, 1827, amounting to the sum of $235,77.</p> <p>The cause was heard by Chancellor Walworth on the pleadings and proofs, and in October, 1828, he dismissed the bill with cost. The reasons of his decision will be found in 1 Paige’s Ch. R. 239. The complainant below appealed.</p>

The bill was filed on 24th September, 1828, by Charles Berners Plestoro and eight others, creditors of the appellant, and James Johnstone, an assignee under a commission of a bankruptcy sued out in England against the appellant.

The respondents being the holders of a promissory note for $15,000, made by the appellants payable to Keeler and Rogers, a mercantile firm in the city of New-York, and negotiated by them, filed their bill to enforce the trusts contained in certain deeds of assignment executed by Keeler and Rogers to the appellants.

On the 13th June, 1829, the attorney general of this state filed an information against the president, directors and company of the Bank of Columbia, in which he stated the incorporation of the company on the 6th March, 1793, for banking purposes; that the company commenced and pursued the business of banking by the issuing of bank bills or notes in the name of the corporation, and by receiving deposits and making discounts, and that they continued such banking operations…

The question here is upon the sufficiency of an answer in chancery. Candler in March, 1827, filed a bill in chancery stating the pendency of two suits at law in his favor against Pettit, who had been holden to bail; that the bail had become insolvent, that Pettit was about to put his property out of his hands and to leave the state, arid praying a ne exeat and an injunction restraining Pet-tit from disposing of his property. The writs prayed for. were granted by a master.

The respondent, in November, 2824, filed a bill in the equity court for the third circuit against the appellants, as executors of the last will and testament of Rowland Hall, deceased, stating substantially that when he was of the age of nine years, he was bound or placed by his father as an apprentice with Rowland Hall, his maternal grandfather, to learn the business of farming, whom he was to serve until he arrived to the age of 22, and that Rowland Hall on his part…

General Philip Schuyler, by letters patent, bearing date the 22d September, 1789, had granted to him the- lower falls in the outlet of Lake George, and a small strip of land adjoining the same on the south side of the outlet. The grant included the bed of the river for a considerable distance both above and below the falls, and the premises granted were bounded by the north side of the waters of the outlet.

The appellant filed his bill in chancery to obtain a decree directing the respondent, Daniel P. Clark, to release and convey to him the moiety of the west half of the building in the city of Albany formerly known as the Tontine Coffee House, which the appellant alleged was held in trust by Clark for theother respondent, Gilbert Stewart, whose interest in the premises the appelllant had acquired as a purchaser at sheriff’s and marshal’s sales by virtue of executions against…

Error from the supreme court. This was an action on a policy of insurance on one half the body, tackle, apparel and other furniture, of the ship Frances Henrietta, the whole valued at $20,000, on a voyage from Antwerp to one or more ports in the India or China seas; and at or from the port or ports of lading to New-York, orto a port in Europe not north of Holland.

Error from the supreme court. Beekman brought an acjion 0f replevin against Bemus for the taking of a quantity of rye. Bemus pleaded several pleas: 1. Non cepit; 2. Property in himself, traversing the property in Beekman; 3. Property in one W. McIntosh, with a similar traverse ; and 4. Property in himself and the plaintiff as tenants in common, with a like traverse.