Volume 4 — Cowen's New York Reports

<p>A promise to ^e6of chosein action, srohThbmvn the contract spemity</p>

This cause being at issue, the plaintiff noticed it for trial; but neglected to bring it on at the circuit, his attorney tendered a stipulation to try at the next circuit, to the counsel for the defendant, and offered to pay the costs ; notwithstanding which,

S. Stevens, moved for a re-taxation of costs. Th The attorneys for the parties now submitted whether the defendant is entitled to these costs. They stipulated that the facts reported in 2 Cowen’s Rep. 442, S. C. be taken as a part of this case, (without affidavit;) by which it appears that the application to enter into the consent rule was granted without costs.

On certiorari to a Justice’s Court, the affidavit upon which the certiorari was founded, charged misconduct in ° the jury, in drinking spirituous liquors. To this part of the affidavit the justice returned, that he knew. nothing of the fact.

The plaintiff had sued the defendant, in covenant, in the Common Pleas of Saratoga county, upon articles of agreement, assigning certain breaches.

On certiorari to a Justice’s Court, the judgment was affirmed; and the defendant had procured to be taxed in his bjjj of costs, the drawing and copying the return of the . ’ v ” ^ 5 , , justice; and a motion for re-taxation was moved for upon this groundj among others.

This cause was tried at the last circuit in the city of New York, and a verdict found for the plaintiff. Certain exceptions were taken by the defendant at the trial; and the Circuit Judge signed and sealed a bill of exceptions, at the defendant’s request; notwithstanding which, the plaintiff had proceeded, on the 2d day of the present term, to enter a rule for judgment, nisi, &c. and had given notice of taxing costs.

The defendant having filed an inventory, as administrator, was sued upon a bond of his intestate; and being advised by the family of the intestate, that the bond was paid, retained an attorney, pleaded payment, and defended on this gromid at the circuit, in April, 1824, by his counsel, when a verdict passed against him.

The last Court of Oyer and Terminer in Steuben connty, Douglass was convicted of murder. The trial commenced ;'on the 11th of January, 1825. About 2 P. M. the jury had'liberty to retire from the box, under the charge of two sworn constables, and the direction of' the Court to keep together, and return speedily. This was' before the trial had concluded. The jury retired to consider on their v J verdict about IIP. M. and retmned a verdict of guilty about ^ ^ next 'morning.

On error from the Common Pleas of Delaware. In that Court, the plaintiff declared against the defendants in debt, for $100, upon a bond dated July 27th, 1818, with condition, aftef reciting that a judgment had, on the day of the date, been rendered in favor of the plaintiff, against one Stockton, for $50, with costs, that if Stockton should well and truly pay the judgment at the expiration of 3 months from the date of the bond, or surrender Stockton’s body in execution…

In assumpsit, the cause was referred; and the referees reported in favor of the plaintiff, $52 52. The attorney for the defendant being dissatisfied with- the report, moved to set it aside upon the merits, and the cause was placed upon the calendar, noticed for argument at several terms, brought to a hearing, the motion denied, and judgment rendered for the plaintiff upon the report.

This case, was tried June 12th, 1822, and a verdict taken for the plaintiff by consent, subject to the opinion of the Court on a case to be turned into a special verdict or bill of , , . exceptions by either party. The case, as made and set-tied, contained a stipulation to this effect.

In replevin. J Platt, moved to change the venue from the county of Monroe to the, county of Rensselaer, on the ground that the defendant had twenty-five witnesses living • .i i .. . m the latter county.

B. F. Butler, for the plaintiffs, moved to strike out the ,, , - _ _ second plea of the defendant. It was a plea of set-off; and he read affidavits showing that it was false and unfounded in point of fact; and he also insisted, that a set-off can not be pleaded under the statute of this state. (Alsop v. Caines, 10 John. Rep. 396. Caines v. Brisban, 13 id. 9.) The det , . . . . ™ i fendants had also given notice of setting off the same matters stated in the plea.

Chamberlain had beeh in-dieted for an assault and battery, which was tried at the February term of that Court, 1825. He subpoenaed Garter to attend as a witness in his behalf; he neglected to appear> anq was attached ; but was discharged by the Court, upon his answering, to the interrogatories, that no fees had been tendered to him.

<p>A capias ad respondendum, tested out of term by mistake, set aside on the defendant’s stipulating, on payment of costs, to discontinue an action of falso imprisonment which he had brought against the plaintiff</p> <p>Mesne process against the body tested out of term is not amendable.</p>

The capias ad respondendum was returned the 1st day of last October term; the declaration was filed de bene esse, and rule to plead entered, and notice thereof affixed in the Clerk’s office, on the 10th of Nov. 1824 ; and on the 10th of Dec. thereafter, common bail was filed, and a default entered.

M. T. Reynolds, moved for judgment as in case of non-suit, upon a notice of motion which was thus : “ Take notice, that I shall move this honorable Court, at the nei term thereof, to be holden at the Capitol in the city of Al - bany, on the third Monday in October next,” &c. The notice was dated the 28th of January, 1825, and served in season for-this term.

Q. jf. Lee, moved for a reference, on the usual affidavit, w. M. Oliver, contra, produced a sworn copy of the declaration, which consisted of two special counts only, upon an agreement.

<p>On verdict f^the^fintiff m trover, ermentofaffirmJnc?’ ,th.6 de* ror has both the°time ofthe judgment bolow, and also double costs, the execution being actually delayed by the writ of In trover, the plaintiff may recover interest on the value of the goods from the time of the conversion.</p>

This was an action of trover. June 2d, 1842, an order was made by the Hon. J. T. Irving, first Judge, &c. requir*£ the plaintiffs to show cause before him at his office, at the City Hall, N. York, on the 10th, why they should not deliver to the defendant, or his attorney, an account in writing 0f the particulars of the plaintiffs’ demand. This order was _ „ , served on the agent of the plaintiffs’ attorney, but did npt rea°h him till the 12th.

<p>A regular default for want of a plea having been taken, the defendant’s attorney procured an affidavit of merits to be made by the special bail, the defendant being absent from the state, and he himself made an affidavit account-mg for the default, which papers he exhibited to the plaintiffs’ attorney, offering to pay the costs of the default, and ta]ce short notice of trial, so that no time should be lost; on these facts,</p> <p>A motion was now made to set aside the default, which was opposed; and it was contended in behalf of the defendant, that he should take his motion without paying the costs of opposing, or of any step on the part of the plaintiffs since the offer made.</p>

the 30th September last, an Order for a bill of particulars was made absolute against the plaintiff upon a regular or^er t° show cause, and served on the agent of the plaintiff’s attorney on the 9th October. A motion was now made for judgment of non-pros; and that the plaintiff pay the costs of this motion,

<p>Debt on bond in the penalty of $2000, conditioned to pay money and also to. support the plaintiff, his mother and sister, alleging a breach in the latter particular. Plea, non est factum, with notice of set-off. On the trial," at the Columbia circuit, the plaintiff relied solely on the breach in not maintaining the plaintiff, which, up. to the time of the suit brought, was proved to be $10- The defendants then, under a notice of set-off, proposed to prove demands against the plaintiff; but the Judge refused to permit this, thinking the nature of the plaintiff’s demand precluded it; but he afterwards allowed the defendants to establish their demand with a view to have .the question settled by this Court, and directed the jury to find, for the plaintiff $10, and also to certify what they found due to the defendants, which they did at $500. The cause was tried September 30th, 1824. At the next term, the plaintiff perfected his judgment, as upon a verdict for himself.</p>

trespass, one count was for making an assault upon the plaintiff’s daughter, and maltreating, debauching and getting her with child, with a per quod, &c. and another count was *n trespass quare domum fregit, et alia enormia, &c. generally. General verdict for the plaintiff for $100 damages; and the commissioner taxed Supreme Court costs.

The plaintiff’s attorneys noticed this cause for trial and . . _ . r% *<-*<-*» inquest, by a. notice,, dated.

Harrison sued Adams before a Justice of Onondaga county who gave judgment, for the defendant.

<p>Whereaplaindefault, but omhT^o^'fflo bajb motion, will ai-' ertytoSdo this nunc pro tunc.</p>

In this case, it appeared that the judgment for the plaintiffs had been satisfied, by various payments, and some sales of property on credit, by the consent of both parties. These sales had been made by a deputy of the Sheriff of Ontario, to whom the execution was directed. It was delivered to the deputy, who sold upon it; and the proceeds of the sales had been received by him.

Thayer made an affidavit that he was and is an insol vent debtor, and that he presented a petition, (made out as required by the act of the 7th of April, 1819, with the other papers required by that act) to the First Judge of Yates county, where the deponent resided, but the Judge refused to receive the papers, on the ground that it appeared by the deponent’s inventory that he owed but one debt, which was due upon a judgment in the C. P. of Ontario county, recovered against…

In the original suit, the plaintiff recovered in debt on bond in the penalty of $250, conditioned to pay $150. The judgment was by default for want of a plea. This suit was an attachment against the defendant for not returning the Ji. fa. and it being agreed that the costs upon the attachment must follow at the same rate with those in the original cause, it was submitted upon this ground. (Tid. The People v. Chapman, Sheriff of Seneca, 1 Cowen’s Rep. 214.)

In the original suit, (<Spencer et al. v. Sprague ei al.) the plaintiffs recovered judgment in assumpsit, and had execution for damages to $191 24, and costs to $28 96, uPon which the defendant in this suit was attached for not ietu™n§ the execution ; and the only question was, whether there should be a re-taxation, the costs against the defendant haying been taxed as Supreme Court costs,

An action of trespass quare clausum fregit had been commenced against the defendants in the C. P. of the city of New York, by Snowden; and the capias ad respondendum returned there cepi corpora. The damages were laid at $500 only, both in the capias and declaration, both of ; . . ■* , . which were against all the defendants jointly.

Debt, on a judgment of the Albany Common Pleas. The declaration set forth a judgment of the Court of Common Pleas, in favor of the plaintiff, against the defendant, as of the 3d Tuesday of October, 1813, proutpatet per re- cordum, &c. Plea, nul tiel record.

A mandamus was issued out of this Court in these words: “The people, &c. to the Judges, &c. of Westchester, greeting : Whereas it has lately been represented to us, in our Supreme Court of Judicature, before our Justices thereof, on the part and behalf Jonas Knapp, that, at a Court of Common Pleas held in and for the county of Westchester, at, &c. on &c. a certain suit, then and there pending, in the said Court of Common Pleas, before you the said Judges, wherein Jonas Knapp…

The relator Staats had left a bond with J. W. Edmonds, Esq. an attorney of this Court, to the end that he should wrpe f0 the obligor to pay to him, (Edmonds,) for the use , ■ , of .Staats, who was the obligee, the money due upon the bond ; but he did not direct Mr. Edmonds to commence a suit upon it, in case the obligor should make default in paying according to such written request.

Ejectments, for land in the county of Saratoga. The ^rst cause; an(l two of the others, were noticed for trial, at the December. circuit, in.Saratoga, 1823, Avhen the first Avas tried, and a verdict taken therein for the plaintiffs' subject the opinion of this Court on a case. The two other causes x were not brought to trial at that Circuit.

Hickok & Hamilton sued Chryslin before a Justice of the Peace of the county of Onondaga, and recovered judgment against him for $34 99 damages and costs, from which the defendant appealed to the next Court of Common Pleas of .that county, gave the proper notice, paid the costs, and gave a bond with a surety approved by the Justice, payable to the plaintiffs, with a penalty of $70, conditioned, after recithrg the judgment and that the defendant had appealed, thus: “ that if…

J. .L’Amoureux, for the plaintiff, moved for leave to take out execution in this cause, notwithstanding the writ of error brought by the defendant, upon the judgment of this Court for the plaintiff. [Vid. 2 Cowen’s Rep. 543, S. C.] The security given to stay execution was in this form: « Know all men by these presents that we, Lewis Newman, John Nelliger and John Hinckley, are held and firmly bound unto Cornelius Yan Antwerp, Esquire, Sheriff of the city and countyof Albahy,…

<p>The rule ^aintifftcTtry only one of several causes, where the questions and thu evidence are the same in all, without being subjected to costs fot not trying the others, does not apply to actions of slander, &c. whore the question is one of damages, to be determined by a jury, but is confined to questions of property.</p>

■ The declaration' was in assumpsit, upon a promissory note, made by the defendant to the testator; also for money lent by him to and paid for the defendant, and 'for money had and received by the defendant to the use of the testator, in his lifetime; with an averment that, in con-1 ' , sideration of the indebtedness to the testator, the defendant, after the testator’s death, promised to pay the several sums, so due the testator, to the plaintiff, as this executor.

On a writ of error to the O. P. of Washington county, returnable in May term, 1823, but not actually returned and filed in the Clerk’s office of this Court till October _ , . term, 1823, the plaintiff’s attorneys, at the same term oí October, filed an allegation of diminution, and entered a rule awarding a writ of certiorari which was immediately issued, and filed with the Clerk of the Court below, returnable at the February term of this Court, 1824.

In February term, 1824, the Attorney General obtained leave to file an information against the defendant in nature of a quo warranto, to which the defendant appeared and pleaded. ■ The Attorney General demurred specially to the plea, entered the usual common rule, to loin in demurrer, ' and served a copy or demurrer upon the defendant’s attomey, with notice of the common rule so entered.1 The defendant’s attorney thereupon entered the usual common rule to amend his plea,…

The Attorney General having proceeded to enter an appearance for, and to take a default against the defendant pursuant to a rule obtained on an ex parte application for the purpose, at the last term, as mentioned in 3 Cowen’s Rep. 357, S. C.

Debt on bond, from which the seals had been tom off by mistake. The plaintiff’s attorney inadvertently made profert of the bond in the declaration; and served a copy of the bond on the defendant’s attorney, thus treating it as a perfect bond; and he went to trial on the plea of non est factum.

The' defendant, Root, an attorney, being sued with another by capias, the' plaintiff had proceeded to-judgment him, as a common person, -by filing the declaration, and affixing notices, &c, in the Clerk’s office, &c. He had given no notice of appearancé totheplaintiíí'’s attorney, either in-his own name, or that of any other attorney, nor that he should defend the cause.

Judgment being for the defendant on demurrer, (vid. 3 Cowen’s Rep. 147, S. C.) he had taken out of the Register’s office in Chancery, a writ of error, and filed it with the Clerk of this Court, but had not put in bail in error. The defendant had, therefore, disregarded the writ of error, sued . out ají. fa. which, had been returned nulla bona ; and now,

<p>J. R. Lawrence, (I. Hamilton same side,) moved for a mandamus, commanding Jonas Earll, jun. Esq. late Sheriff of the county of Onondaga, to convey certain premises to Robert Stevens.</p> <p>The facts agreed upon by the counsel for the parties intérested were as follows: On the 23d March, 1822, all the right and title of Henry Field to lot No. 46, in Cámillus, Onondaga county, was sold by Hezekiah L. Granger, Esq. then Sheriff of that county, under a fi. fa. issued on a judgment in the Supreme Court, in favor of George Leitch, deceased, against Field and one Brackett, for $1843 54, docketed October 20th, 1819, and bid off by Nathan Gorham at $1000, of which a certificate was made and filed pursuant to the statute. Gorham gave his note for the bid to Cumpston, the administrator of Leitch, payable in 6 years with interest. Before the payment of the note, Cumpston discovered that Nathan Munro was the owner of two judgments against Field, older than Leitch’s, which were a lien on the premises sold; and Cumpston deducted the amount of' these judgments from the note (the balance of which was paid by H. & J. Dodge’s bond and mortgage.) These two . .i , 1 ° ° _ , semor judgments were in the Common Pleas of Onondaga county; one in favor of the trustees of the town of Camillus against Field and one Clark, for $106 37, docketed November 25th, 1817; and the other in favor of Anthony Johnson and others against Field, for $137 24, docketed 10th December, 1817. On the 3d day of July, 1823, Jonas Earll, jun. late Sheriff of the county of Onondaga, under two writs of fi. fa. issued upon these judgments, sold the same premises to Nathan Munro for $84 70, being the balance due on both judgments, of which he was the assignee and. owner, and of which sale a certificate was given according to the statute. On the 6th September, 1823, (no-redemption having been made upon the first sale,) Gorham took a deed from Granger as Sheriff; and on the 19th December, 1823, conveyed the premises, by deed of quit claim, to H. & J. Dodge, for the consideration of the sum' due on the note to Cumpston, deducting Munro’s hid; and the Dodges paid the balance due on the note, by their bond and mortgage upon these and other premises. On the 24th July, 1824, Cumpston, the administrator of Leitch, with money furnished by the Dodges, and- for their sole benefit, paid to Munro the amount of his hid, $84 70, with 10 percent. interest from the day of sale, claiming to redeem as a judgment creditor, in order to perfect the title of the Dodges; and on the 2d October, 1824, Robert Stevens, as assignee of' another judgment in the Onondaga Common Pleas, in fa vor of Jacob Campbell against Field, docketed August 28th, 1820, paid to Jonas Earll, jun. the Sheriff who sold to Munro, the amount-of Munro’s bid, with 10 per cent, interest" froin the day of sale (which money still remains in the hands' of-the Sheriff,) and claimed to redeem the premises from Munro as a judgment preditor of Field. Earll, however, refused to convey to any person unless upon the order-' of the Supreme Court.</p> <p>It was agreed by the counsel that a mandamus should' issue, commanding the Sheriff to convey to' such of the claimants as, upon the above state of facts, they should think entitled.</p>

At a previous term, a rule had been obtained to show cause, why a mandamus should not issue, to the Supervisors of the county of Monroe, commanding them to audit and allow to the Overseers of the town of Gates, in that county, the expenses which they had paid towards the maintenance of certain transient paupers, having no residence in this state.

Assumpsit on two promissory notes, made at Alexandria, in the district of Columbia. The defendant had pleaded the same plea .as he had done in the cause of Whittimore v. Adams0 (2 Cowen’s Hep. 626.) At first, the plaintiff demurred an^ the defendant joined in demurrer; but on seeing the report of the first case, the plaintiff at the last term, byS.

Judgment was obtained against the defendant, an attorney.of this .Copit, dor blerk’-s fees due ¡to the plaintiffs, under a ca. sa. upon which judgment he was imprisoneu, after he had obtained his discharge under the act to abolish imprisonment for debt in certain cases. (Sess. 42, ch. 101.) The assignment was executed after the debt arose; and now, on an affidavit showing these facts,

After the re-taxation ordered, ante, p. 42, -in this cause, the plaintiff’s attorney re-taxed his costs; and-the commis.allowed the plaintiff a counsel fee of $3 75, being . ‘ ’ . . ? . at the supreme Court rate, on opposing the motion to set aside the report of referrees ; though the costs properly allowable in. the cause were Common Pleas costs only. ‘This the plaintiff claimed on the authority of Alcott et al. v. Phelps, (1 Cowen’s Rep. 170 ;) contending that .though…

After this cause had been noticed for trial a third time, and pending the Circuit for which it was last noticed, the plaintiff discovered that it was necessary for him to amend his bill of particulars by adding new items; andonanaffidavit of-the circumstances, he applied to the Recorder of New York, who granted him leave to do this, on paying to the defendant his costs of the (then) Circuit. Upon papers showing all the proceedings before the Recorder,

An alternative mandamus had been issued, and- served upon the defendants, commanding them to audit and allow the account of Holley, for his services as a constable in ai- - ' . ’. tending the Court oí Oyer and- Terminer, and the Court of Common Pleas and General Sessions of the county of Columbia; he having been duly summoned to attend, by the’ Sheriff, and having attended accordingly, pursuant to the act 0f the 5th March, 1819, (sess, 42, ch. 27.) The/iretUrn stated that…

Trespass for the mesne profits of land recovered in an action of ejectment, brought by Jackson, as nominal plaintiff, on the demise of M. S. & J. A. Freeman, against the defendant. The present action was also in the name of Jackson, the nominal plaintiff in the ejectment.

On certiorari to a Justice’s Court. There was a demurrer to the assignment of errors, and judgment for the defendant ; and in taxing the costs the commissioner allowed not only a draft of the demurrer .hook, but a copy for the defendant’s attorney. On this ground among others,

The capias ad respondendum in the first cause, return-a^e at t'de *ast October term, was issued against Carley, by the name of Grautis Q,. Carley ; whereas his real name was Gerardus Q,. Carley. • The capias contained no ac etiam, and was served on Carley and Walton. Carley’s attorney gave notice of retainer, entitled, “ Gerardus Q,. Carley, who is sued by the name of Grautis Q,. Carley, impleaded, At an early dayin the Present term=

Debt for the escape of Wait, a prisoner on ca. sa. from the jail limits of Clinton county, tried at the Clinton Circuit, July 4th, 1823, before Walworth, C. J. The main question arising upon the case, related to the time at which this suit should be deemed to have been commenced.

Assumpsit, tried before Rochester, C. Judge, at the Madison Circuit, on the 7 th day of July, 1823. The action was brought to recover the amount of the fol- „ r . _ lowing promissory note: “Lenox, Maylsty loal. For value received, I promised to pay Ichabod S. Spencer, or bearer, one hundred and fifty dollars, with interest, in one year from date.

Trespass for mesne profits, tried at.the Washington cm cuit; July 15th; 1823; before Walworth;.C. Judge; On. the trial, the plaintiff produced' in evidence an. exemplification of a.record of recovery, in an action of ejectment, duly, signed and filed on the 5th day of March, 1822, by which it appeared that the demise in the declaration, was.laid- on- the-2d day of February, 1818; and it was- admitted by-the defendant, that a writ of possession had been issued on the…

Covenant, iried at. the Washington circuit, July 15th, 1823, helóte Walworth, C. Judge.

Trespass quare clausum fregit, tried July 16th, 1823 at t^ie Tompkins Circuit, before Nelson, C. Judge.

<p>Ejectment, for lands in Washington county, tried be- . ... /NTT TTT ••.•/It toro Walworth, C. Judge, at the July circuit m that county, 1823.</p> <p>At the trial, it was admitted by the defendants’ counsel, that Moses Cadwéll, deceased, was seised in fee of the premises in question in his lifetime, and that the defendants . . - . wore m possession ox them at the time ox suit brought.</p> <p>Tho plaintiff then proved by Lucretia Cadwell, that 45 years before the trial, she was married to Cadwell, and had issue by him several sons and daughters, the lessors of the plaintiff; that Cadwell left her twenty-three years before the trial, and went off with one Elizabeth Healy, the wife of one Daniel Healy, with whom he lived till the time of his death, in November, 1821; that Elizabeth Healey had two daughters, Betsey and Lydia, who lived with Cadwell till they married; Betsey to James W. Smith, and Lydia T, TT- . ’ to Henry K. Higgins.</p> <p>The defendants then produced in evidence a deed of bargain and sale of the premises in question, executed by . Cadwell, being then a little more than 50 years of ago, tí James W.'Smith, dated July 1st, 1816, expressed to be fci the consideration of $2500, but a small part of which was actually paid ; also, a deed of bargain and sale of the premises in question, with full covenants, from Smith to the defendants, dated May 29th, 1819.</p> <p>The only question upon the trial was, whether Cadwell, when he executed the deed to Smith, was of sufficient capacity to convey, the lessors of the plaintiff alleging that he was incompetent by reason of mental incapacity ; and the defendants denying the allegation. To this question a great variety of evidence was heard, which I shall, not recite ; because, for the purpose of presenting the legal questions in the cause, it is sufficiently detailed in the opinion of the Court.</p> <p>Upon the question of incapacity, the Judge charged the jury, that to render the deed invalid, they must be satisfied that Cadwell was not in a situation to transact that particular business rationally; not, on the one hand, that he should be capable of doing all kinds of business with judgment and discretion ; nor on the other, that he should be wholly deprived of reason, so as to be incapable of doing the most familiar and trifling work ; that if they were satisfied that his mind and memory were in such a situation, at the time-of executing the deed, as to render him wholly incompetent to judge of his rights and interests in relation to that transaction, the deed was void ; and it was their duty to find a verdict for the plaintiff; otherwise, to find for the defendant.</p> <p>Under this charge, the jury found for the plaintiff.</p>

<p>If the injury to a ship by the perils insured against, exceed one half her value, the insudon iTtiie^underwriters as which cannot afterwards be turned into a partial one. üiT^ahanlonment may be the ship’ after-wards bo repaired by the master, and her'journoy. °</p> <p>But the a-must be before iuhy Repaired and able to hcrCe6<voyoge! Ifshebeinfact ^repaired, the abandonment is void, though this be not known to the "assured.</p> <p>It is the actual state of things, therefore, at the time of the abandonment; and not the state of the party’s information; that decides the validity of an abandonment.</p> <p>Where a ship bodnd to Antwerp was insured, and repaired on account of sea damage, at Port Louis, in the Isle of France ; .and the expense of a part of the repairs was defrayed by á sale of the cargo and the residue charged upon the remainder Of the cargo by a respondentia bond ; held, that no lien was thereby created upon the ship, which could he taken into the account in estimating the insured’s right to abandon as for a total loss.</p> <p>In making an abandonment; the assured is bound to' assign the true cause: e. g. if he abandon on account of spa damage only, he cannot avail himself of the fact, .that the ship was afterwards incumbered fey the expensé of repairs. As tti the latter, lie shoiild malee a hew hMhdonment. .....</p> <p>..... Where a Ship 'has sustained damage by the perils insured "against to more tháh bne-hblf her value, her restoration, hi older id divéát the right of abandonment, must be complete and, perfect ; and if, though i» fact restore^, she still remain subject to a lien for the expense of her repairs, to more than half her value, this is not such a fell and berfefifcial restoration as tó take away the right to abandon. ....</p> <p>Items included in, and mariner of estimating the amount of repairs, deducting one-third new for old, after first deducting the value of the old materials. Per Savage, Ch. J.</p>

Assume sit for money advanced, tried at the New Y ork sit- ■ tings, in June, 1822, before Woodworth, J..when a verdict-was taken for the plaintiff, subject to the opinion of this Court, upon a case as follows: On the 22d May, 1815, the defendant, a merchant at Richmond in Virginia, shipped by the, schooner Octavo, to the plaintiff, a commission merchant in New York, 27 kegs of tobacco, consigned to the plaintiff' to be sold on account of the-defendant, which the plaintiff…

Error from the C. P. of Columbia. The action in the Court below was debt on a penal bond, dated November 2d, 1817, executed by A. Donely and two others, to Rock-feller & Feller, as overseers of the poor of the town of Clermont, and conditioned to indemnify as well such overseers, 7 J 7 as all and every the other inhabitants, &c. against all costs, charges, rates, assessments, damages and expenses whatsoever, for or by reason of the birth, education and maintenance of a…

Assumpsit, against the defendant, an attorney of this ^ourt> f°r fees °f the Clerks of this Court, upon the statute (1 R. L. 243.) The defendant pleaded that these fees, if any, accrued for services done, and materials and other necessary things found and provided, in certain suits at law, prosecuted for and in the name of the plaintiffs, to recover certain fines and forfeitures due and owing to them, in which suits the defendant officiated as public prosecutor, in the…

<p>Ejectment for lot No. 126, in Pittstown patent, in thb town of Hoosick, and county of Rensselaer, tried, at the Rensselaer Circuit, December 13th, 1822, before his Honor (the late) Chief Justice Spencer.</p> <p>On the trial, the plaintiff introduced the following evidence : 1. A mortgage of the premises in question, executed by John Yander Speigel and Laura his wife to Golden, the defendant, dated January 22d, 1819, acknowledged before Asher Armstrong, a commissioner to take the acknowlédgments of deeds, on the same 22d day of January; and by Laura,.his wife, on the 29th of the same month; and recorded in the Clerk’s office of the county of Rensselaer, the sainé 29th of January, to secure the payment of $4500, one half on the 1st of March, 1820, and the other half on the 1st of March, 1821, with interest payable annually on the 1st of March. The commissioner who was sworn as a witness, stated' that this acknowledgment was taken at Bennington, Vermont. 2. An assignment of this mortgage by Golden to Walsh, dated February 2d, 1819, expressed to be in consideration of $4500, acknowledged November 9th, 1821, and recorded in the Clerk’s office of Rensselaer county November 26th, 1821. By this assignment, Golden covenanted to make good to Walsh any deficiency of $4500, which might remain on a sale of the premises by virtue of the power in the mortgage. 3. The affidavit of Gardiner Tracy, stating that he had advertised the mortgaged premises in question for six months in the newspaper called (he Lansingburgh Gazette; and the-affidavit ofWilliam Walsh, stating that he affixed a copy of the advertisement on the outer door of the * court house in the city of Troy on the 6th day of February, 1821; and also the affidavit of Jacob C. Lansing, stating that he acted as auctioneer, and sold the premises by virtue of the mortgage (and that the sale was a fair, open and public sale) at the place mentioned in the advertisement, on the 9th day of August, 1821 ,• and that the premises were bid off by Walsh, the lessor of the plaintiff, and assignee of the mortgage, for $3000. These affidavits were duly taken arid recorded in the Clerk’s office of the county of Rensselaer, on the 22d day of August, 1821.</p> <p>The plaintiff then having proved the defendant in possession, rested.</p> <p>The defendant’s counsel moved for a nonsuit, on the ground that the foreclosure was imperfect, as the lessor was the purchaser, and could not convey the premises under the foreclosing sale; and that no notice to quit had been shown. The Judge ruled that though he thought the foreclosure inoperative, there being no deed of foreclosure ; yet the plaintiff might recover under the assignment without showing a notice to quit, to which opinion the defendant’s counsel excepted.</p> <p>The defendant then introduced in evidence, 1. A deed of defeasance executed by Vander Speigel to Golden, dated January 22d, 1819, for the premises in question, acknowledged before Asher Armstrong, a commissioner, the same day it bore date, reciting that Golden, by his indenture of that date, conveyed to Vander Speigel, in "fee, the" same premises; that Vander Speigel on the same day, by bond and mortgage of the same date, conveyed to the defendant for the purpose of securing the purchase money of the premises ; and that it was the defendant’s intention to assign the mortgage; and declaring that if the defendant should pay the holder or assignee of the bond and mortgage the money secured by them according to their condition, or furnish money to Vander Speigel to do the same; then the conveyance from the defendant to Vander Speigel to be void, and the premises revest in the defendant, &c.; and that Vander Speigel should re-convey, &c. 2. A deed in fee of the premises in question from the defendant to Vander Speigel, dated January 22d, 1819, with full covenants • duly acknowledged before Asher Armstrong. 3. A bond of indemnity executed by the defendant to Vander Speigel, dated January 22d, 1819, reciting the deed of defeasance, bond and mortgage; and binding the defendant, in case a sale of the premises should prove insufficient to pay the amount of the bond and mortgage, to save Vander Speigel harmless against the deficiency.</p> <p>The defendant then proved that the mortgage was sold by Golden to Walsh at a discount of 5 per cent, and that interest was to be calculated between them' so as to allow Walsh 12 per cent, from that time to the time when the mortgage should become due; that the assignment, bond and mortgage were to be deposited with a third person, and in case the defendant paid back the money advanced upon the assignment, with interest, and $50 premium, within 3 months after the advance; the mortgage, dec. and assignment were to be delivered back and the assignment cancelled. In speaking of this transaction after-wards, Walsh declared that this was what Golden called “raising the wind.”</p> <p>Considerable testimony was then offered by both parties, the defendant seeking to show that the lessor of the plaintiff knew of the above transactions between the defendant and Vander Speigel; and that they were for the purpose of enabling the defendant to raise money by loan upon the assignment of the mortgage, and the plaintiff seeking to avoid any evidence of this fact. It is not necessary to state this testimony. Suffice it to say, the Court, as will be seen by their opinion, did not think it established the fact of the lessor’s knowledge.</p> <p>A verdict was taken for the plaintiff, subject to the opinion of the Court on a case.</p>

Assumpsit for two run of Burr mill stones. The declaration contained the common counts for the mill stones, at a price stated, and on a quantum, meruit. The defen^ants severally pleaded non assumpsit, with other pleas. Tne cause was tried before Savage, Ch. J. at the Albany Circuit, April, 1823.

<p>In an action judgment of a neighboring state, the defendant may flrar’they court had no jurisperson, or the subject matter of the suit.</p> <p>But where to° a °deelaration on such a ST’that, at the time of the commence-suit, and when was reiidmed1 and during all díate timeThé was, and ever Bincé had been, an inhabitant in the títy' of Schenectady, Schenectadyf and state of New York; held bad on goneral demur-not'’ being Pinconsistent with havisg actual': ly appeared, in person, otherwise, and defended the</p> <p>d of 1 judgment in a neighboring state is prima facie evidence, that the court by was rendered, jurisdiction ; and, to do away the effect of the record, the contrary should ho clearly and fully shown.</p> <p>The only plea of tfie general., issue, applicable to a declaration, upon the judgment of a is nul tiel record.</p>

<p>Au ill(.orma, tion in nature of a quo war rani0 i¡es agaiust one in-trading into tho office of sheriff in consequence of an unlawful decision of tho county board</p> <p>of canvassers, in his favor, convened pursuant to the 10th section of the' act for regulating elections, passed April 17th, 1822, (sess. 45, ch. 25!))</p> <p>Tho duties of the board are ministerial, not judicial. A certiorari, therefore, is not th'e proper remedy.</p> <p>The act does not require that one of the town inspectora be appointed to preside at tho election.</p> <p>All tho inspectors attending, equally preside, and have equal powers.</p> <p>Some one of these must- be appointed by a majority of those who preside, to deliver tho statement of the town vote to tho county clerk, and attend tho county board of canvassers as a member.</p> <p>This appointment may ho written or parol. A written appointment is preferable.</p> <p>If tho statement of the town votes bo delivered to the county clerk by a town inspector, and the fact of his being so, is not questioned by the canvassers, he ought not to bo excluded; for the delivery of the statement, and his attendance to perform the duties of a canvasser, are, prima facie, evidence that he was regularly appointed.</p> <p>The certificate of appointment, if in writing, is good evidence, though not signed by a ma- - jorlty of the town inspectors till after the town poll closed.</p> <p>The inspector appointed, may be one of tho appointors of himself, and sign the certificate.</p> <p>If the votes of a town are improperly excluded, by which a majority of votes are canvassed and allowed to a candidate for the office of sheriff who receives a" certificate, takes the oath of office, &c., and acts as sheriff judgment of ouster, will be given against him, on an information in nature of a quo warranto being filed ex relatione the oho who had tlie actual majority of votes.</p> <p>A special verdict in an information m nature of a quo warranto allowed a preference >n argument on tho calendar.</p> <p>Pleadings in an information ;n nature of a orto warranto, against one who unlawfully intruded into the office of sheriff viz.: The information ; plea, setting forth the defendant’s title under the act regulating elections, (sess, 45, ch. 250.) Replications and issues, at length. J</p>

Ejectment for a farm in the town of Taglikanic, in the county of Columbia, tried at the Columbia Circuit, on the 30th day of June, 1823, before Betts, C. Judge ; when . „ . . . . „ n . . .. a verdict Avas taken for the plaintiff, subject to the opinion of the Court op a case.

<p>Trespass quare clausnm fregit, tried on the ISthdayof July, 1823, at the Washington Circuit, before Walworth, C. Judge. The plaintiff gave in evidence an exemplifica'tion of a record of judgment in favor of James Jackson ex dem. Thaddeus Dewey & John Goodwin against James</p> <p>Barker, Junior, docketed in this Court, on the 10th day of August, 1821and also a .writ of possession tested- the 10th day of August, 1821, returnable on the first day of the (then) next- term of- this Court; upon which was endorsed the return of the sheriff of the county of Washington, that, by virtue of the writ of possession, he had,- on the 10th day of August, 1821, caused the possession of the premises in the writ of possession mentioned "to be delivered to Dewey.</p> <p>The plaintiff then proved by Henry Thorn, Esquire, that he made the service of the declaration’in ejectment about four or five years ago upon Barker; that Barker was then in possession of the premises, and had been in-possession for several years then next preceding; and that he continued so in possession - until the execution of the writ of possession; that the witness was present at the time when the sheriff turned Barker out of possession, and put Dewey in possession.</p> <p>Jonathan Rice, a-witness for the-plaintiff, testified that James Barker, junior, was in possession of about 120 acres of lot No. 24, in the Artillery patent, in the town of Fort Ann, in June, 1821; and had been for a number of years previous to that time; that there was a small framed house, a small barn and a corn house on that part of the lot so possessed by Barker; that in May or June, 1821, the buildings were moved off the lot on to an adjoining lot owned by James Barker. That the defendant’s: oxen were there, and helped draw the buildings; did not see the defendant do any thing to aid in moving the buildings; thought-they were removed omSaturday, and it was before.the lst¡ of July, 1821.</p> <p>Benjamin Eastman, a witness for the plaintiff, testified that he knew the-premises; was present .when the buildings were removed; had since heard the defendant say .he had assisted in removing them, and expected he should have trouble about it. He did not recollect the words the defendant made use of, but drew this .conclusion, .thathe expected trouble from the , faetthat Chester .Dewey had forbid them removing thebuilditigS; James- Barker,-junior, ,was:then in possession of the land from, which the buildings were,removed; and had been, for many:years,, using it as his-own. The house was worth 15.0.or 200 dollars a-s-it stood,-but after preppredffdr removing, from 50 to 100 dollars. The buildings were drawn into the adjoining lot owned by old Mr. James Barker, who occupied the land from which the buildings were drawn, for twenty or thirty years before James Barker, junior, went into possession. He succeeded to the possession of his father. The defendant and other neighbors were invited to assist in removing the buildings, and the witness, with the others, attended in consequence of such invitation. He heard some one say that Dewey had recovered the land, but did not hear the defendant say any thing about it, and did not know that he knew it. The defendant told him that he came there to assist James Barker, junior, to remove his buildings, and said he had assisted; that he had a yoke of oxen there, and expected to get into trouble about it, in consequence of the recovery of the plaintiff against James Barker, junior. That James Barker, junior, had been in possession for eight years previous to the removal of the buildings, and that the witness saw him remove grain from off the premises after the buildings were removed. That previous to the removal of the buildings, the recovery of the plaintiff against James Barker, junior, was the subject of conversation among the persons assembled there to assist in the removal. That after the barn and com house were removed, and before the house was removed, while the company was assembled for the removal of it, Chester Dewey, the son of the plaintiff, came there and said his father had recovered the premises, that they belonged to him, and he had sent him (Chester Dewey) to forbid the removal of the buildings. That the defendant was in a situation to have heard what Chester Dewey said, and it was spoken publicly.</p> <p>Chester Dewey was also produced as a witness on the part of the plaintiff, and swore that the action of ejectment against James Barker, junior, at the suit of the plaintiff, his father, was tried at the Washington Circuit, on the 4th day of June, 1821, and the buildings were removed from off the premises on Saturday of the next week; and that he, by the direction of his father, the plaintiff, came to the premises at the time they were removing the buildings, and before the house was removed off the premises, and forbid the company from removing them ; and informed them, that his father had recovered the premises, and that they belonged to him.</p> <p>It appeared in evidence that the premises, from which the buildings were removed, were the same which had been recovered rn the ejectment suit by Dewey the plaintiff, and from which James Barker, junior, had been turned out of possession by virtue of. the writ of possession.</p> <p>The plaintiff then rested his cause, and the' defendant applied for a nonsuit, which was overruled.</p> <p>The defendant then offered to prove that James Barker, junior, put the buildings on the premises for his own use, Avhile he was in possession, claiming to hold the land independent of any right derived from the plaintiff; but this testimony Avas objected to and overruled. The defendant then gave in evidence a deed of the premises in question from Adam Patterson to James Barker, dated February 4th, 1796. The defendant then called Abraham Boyce, Avho testified that James Barker, the elder, went into possession of the premises about the time of the date of the deed, and continued in possession until his son, James Barker, junior, took possession under him, about eight years since; that the witness never heard Barker say any thing about the title of the land until within about fifteen years; since which time he had claimed to be the owner, and Avitness has heard him say he had abetter title than any body in this country. The defendant, in bar of the action, then offered to prove that James Barker, junior, held under James Barker, senior; and that the defendant, in Avhat he did, in relation to the removal of the buildings, acted under the direction, and at the instance of James Barker, the grantee; but this testimony was objected to by the plaintiff, and the Court decided that the defendant had not shoAvn sufficient to found an adverse possession in Barker, and the testimony avbs overruled. The defendant then introduced several witnesses to shoAV the value of the buildings, and the jury, under the direction of the Court, found a verdict for the plaintiff for $55 damages.</p>

Debt on bond in the penalty of $1000, conditioned that the defendants should pay the plaintiffs all such sums of m0ney as should or might be paid, laid out and expended .. , . . . . . . by the plaintiffs, m repairing and improving a certain street *n Newburgh, called First street, that is to say, that part or section of First street, between Golden street and Elídson’s river, so as to construct and make a safe and convenient passage and way for wagons, carts and carriages, m…

<p>The people ^avo of the king, the former sovereign of this state. They are not, therefore, bound by general words in a statute restrictive of prerogative, without being expressly named. E. g. The insolvent laws.</p> <p>The courts will take judicial notice of public statutes.</p>

<p>Assumpsit for the use and occupation of a house and lot in Troy, tried before Spencer, (late) Ch. Justice, at the Rensselaer Circuit, December, 1822.</p> <p>The facts were these: The defendant’s wife went into . the house in September, 1819, with' the plaintiff’s consent, to hold it free of rent; withbut limitation of time, she engaging to pay the ground rent which was due tó ofie Vanderheyden. To this the defendant assented, and paid' the ground rent, which was $6 25'per annum,'up to'the 1st day of May, 1822. This he did on the '22d day of June, 1822'. But oil the'26th October, 1820, the plaintiff gave notice to the defendant and his' wife to quit the premises, , . A 7 within three months from that time; and now, on ptoof that the premises were in fact wdrth from' $ 100 to f 140 per annum, claimed a rent' accordingly, for the time subsequent' to the expiration of the notice; and to this effect the Judge charged the jury, holding the notice to quit td "be sufficient. Verdict for the plaintiff, $ 137. The defendant’s counsel excepted to the decision of the' Judge."</p>

On certiorari to a Justice’s Court. In the Court below / Emerson declared against Hinckley, in trespass, for killing his (Emerson’s) dog; to which Hinckley pleaded the ■Veneral issue; and justified the killing as necessary to preserve his property. . : The plaintiff proved that the defendant shotdhe dog near the defendant’s gate.

Action for breach of promise of marriage. On the trial r 0 at the city of New York, before Edwards, C. Judge. February 9, 1825, the plaintiff proved the progress oí tne mtimacy between the parties, and finally a promise or mar- • . . , . . , „ n . nage, and the defendant’s refusal to execute it. And in the course of the examination of witnesses, W. J. M’Kee and ?

J. Hooker, moved for an attachment for the non-payment of costs. He produced a rule by which a motion made by the party against whom he moved was denied, but the rule did not say with costs. He relied on Jackson v, Gayer, Cowen’s Rep. 484,) that where a motion is denied, costs follow of course, unless the contrary be expressed. .

Talcott, (Attorney General,) at the last term, moved for ^ to hie an information in nature of a quo warranto against Tibbets and others, President and Directors of the Franklin Fire Insurance Company, on affidavits, that on the 10th January, 1825, at Wall Street, in the city of New York, between 12 at noon and 2 P. M. an election was held for directors; that there were two sets of candidates ; one list being headed by the name of Tibbets, the other by that of Israel; that by…

<p>After the preceding opinion in this case was delivered,</p>

<p>^ plaintiff0 nog-' |®ct®d the statute of limitations ; and went to trial upon a nisi prius record omitting it; but the defendant had the full benefit of a defence upon the statute, at the trial; the court refused to set aside a verdict for the plaintiff for irregularity; but suffered him to amend.</p>

<p>Dower unde nihil habet, of land in Massena, in the county of St. Lawrence. The count was in the- usual -S-enera^ f°rm) without showing any land in certain; and nowpafteua- special imparlance, and before plea,</p>

<p>The plaintiff can in no case have costs in fyS brought^n the supreme court, in an action of aseumpsit, unless he recover more than</p> <p>He cannot have costs, tho’ tho^accountsof exceed $400.</p> <p>him in such caso to costs, in the common pleas'</p>

<p>eourt wiI1 order th« defendant to allow the piain*lff t0 , take per in his whkiTthe suit ^oughfound'¡d’ plaintiff once</p> <p>had a counterpart which is lost.</p> <p>It is not necessaiy to show that it was delivered to the defendant* to hold as trustee of the plaintiff</p> <p>The supreme court will grant this rule, as to such a paper, in all cases where chancery would entertain a bill of discovery.</p>

The defendants not having yet made return to the alter- .. . . n . . . - , . , native mandamus issued in this cause, for which purpose time was given them at the last term, (vid. ante, 73, S. G.)

<p>of venuo'iHS 1^1ondisfor, a ¡1,eI Several ™™!¡ics0’n y®' same printiactton^contract > and a change of venue will accordingly be denied, unless there is a decided preponderance of witnesses, or some other strong circumstance in favor of the change.</p>

<p>Case for slander and malicious prosecution. On the tnal at the Circuit, various testimony was adduced on both sides; and after the defendants’ counsel had closed summing up the testimony to the jury, and the plaintiff’s counsel had risen to reply, the counsel for the defendants objected that there was a variance between the allegations in the counts for malicious prosecution, and the documentary proof produced to support it, fatal to the plaintiff’s right to sustain the action, and moved the Court so to rule. The Court declined considering the objection, on the ground that it" was too late ; and the defendants’ counsel excepted.</p>

<p>.Case for seducing and debauching Jane Moran, the daughter and servant of the plaintiff, per quod scrvitium amisit; tried before Edwards, C. Judge, at the New York circuit, January 12th, 182b.</p> <p>On the trial, Jane Moran, a witness for the plaintiff, testified that she was the daughter of the plaintiff, and at the time of the connection- between her and the defendant, she was over the age of 21 years. That she then lived with her mother in Rector street, in the city of New York, in a house owned by her brother; that her brother, mother and sister, also resided there; that her mother was the mistress of the house; that they had a common table; that each, out of their earnings, supported the establishment; she, and her brother and sister, furnishing money out of their earnings, which made a common fund in the hands of her mother, who out of this fund, purchased the necessary articles for the family; the mother rendering her services only; that the witness sometimes made up garments for her mother gratuitously, as a daughter would; and that she assisted her mother in her household affairs.</p> <p>That while living with her mother in this way, the defendant. in the absence of the mother, and the other occupants of the house, entered her room in the day time, about mid-day, while she was lying on her bed asleep, and had carnal knowledge with her, first by force and against her will, but she yielded before the conclusion.</p> <p>The plaintiff having rested here, the defendant’s counsel moved for a nonsuit on the ground that the action should have been trespass; and that the relation of mistress and servant was not established. The -Judge overuled the motion, and the defendant excepted.</p>

Toll obtained judgment against Chandler, and bid off Chandler’s land in Camillus, Onondaga county, on afi. fa. at $30, May 8th, 1823. Drake having a junior judgment for 82 55 against Chandler and one Hopping, assigned it to Lawrencé, who sued out a fi.fa. on which the sheriff made 43 dollars by a sale of Chandler’s personal property; and then levied on Hopping’s personal property to an amount sufficient to satisfy the fi. fa. and took a receipt for it.

Trespass for mesne profits, in the name of the nominal plaintiff, on a recovery in ejectment in this Court ex dem. jpreeman.

M. Denton récovered against A. Stickney $360, in the Orange Common Pleas ; and the judgment was docketed April 23d, 1822, and on the 1st December, 1823, assign- ed to D. Denton, H. Seely &. D. Roe. P. Board then recovered against the same Stickney $316 68 in the same Court; and the judgment was docketed September, 1823; and in February following assigned to C. Board.

Assumpsit. The defendants pleaded a judgment re-_ _ • . . A J ° covered and outstanding m iavor of Dubois and others, for $^74 24, without concluding, et hocparatus est verificare per recordum ; and then proceeded thus: “ And for further plea in this behalf, by leave of the Court first had and obtained, according to the form of the statute in such case ' ° made and provided, the said defendants further say” (going 011 an _ . ... - ...

Ejectment for-a lot of ground in the Bowery, city of* New York, tried before Edwards, C. Judge, at the New York Circuit, July 1st, 1823. John Deitz, being seised in fee of the premises in question, died, leaving, the lessors of: the plaintiff, his heirs at law.

O n error from the Washington C. P. Farley sued Cleveland in the Court below, declaring specially, that one Moon on ^le 22d November, 1815, gave the plaintiff a promissory note for $100, with interest, payable the 1st June there-after j that on the 1st January, 1817, Cleveland, in consideration of 15 tons of hay (value $150) sold and delivered ’ _ _ _ . . s n by Moon to him, .at his instance, promised to pay the note of Moon to Farley.

Assumpsit, upon an express warranty of cotton. The declaration was, that the defendants promised that the cotton was good merchantable cotton, free from dirt and all filthy matter. The cause was tried July 17th, 1823, at the Oneida circuit, before WlLLI AMS, G. Judge.

A mandamus, tested May 9th, 1821, was directed to the defendants, reciting that an execution had issued out of the Common Pleas of Niagara, (now Erie,) on a judgment . -»-» 1 , t • . a against Pierce, Raymond and femith, administrators, , „ , To this the defendants returned a judgment before them in 1816, in favor of the relator, against the defendants belew, Pierce, &c. as administrators of C. Smith, rendered on a C0gn0Vi¿ actionem, in 1816; a fi.fa. for a balance due on…

Ejectment for land claimed to lie in the northeast section of township No. 10, in Watkins & Flint’s purchase, jn qle COunty of Tioga, tried at the Circuit for that county, J 0 1 It was admitted, at the trial, that the lessors of the plaintiff owned the northeast section, and the defendant the southeast section, and the only question was as to the true jjne between them.

Error from the Yates Common Pleas. The action be The defendant below offered to prove, that, when the _ „ note became due, he had at his saw-mill in Italy, where both parties lived, a sufficient quantity of lumber, of the quality described, to pay the note; but the plaintiff below did not call to demand it; and that the lumber was in bulk, ancj not sorted or separated from other lumber at the mill, x . . ■ ' This evidence was objected to, by the plaintiff below, and…

Assumpsit, for money had and received. The action _ ,*f, •* .

On scire facias against Stewart and others, setting forth a judgment of this Court in favor of the plaintiff, against Walton, for $5866 02 debt and costs, on the 29th October 1, 1813; that execution thereof still remained to be-made; that Walton was dead; and commanding the sheriff of Columbia county to warn the heirs and tenants of all the lands in his bailiwick, whereof Walton or any other person or persons, in trust for him, were seised on the 29th of October, 1813, or at…

<p>Error from the C. P. of Onondaga, where the cause came by appeal from a Justice’s Court, by which judgment was rendered against Marsh for $30.</p> <p>The action below was trover by Edmund Lawrence against Marsh for a horse. The cause was tried in the C. P. in August, 1822, when the jury found a special verdict, that in the term of November, 1818, in the C. P. of Onondaga, one Hutchinson recovered a judgment of $1010, the penalty of a judgment bond, and costs, against M. Curtis and Joab Lawrence, which was docketed December 11th, 1818 ; that a Ji. fa. issued thereon, and was delivered to Bronson, a deputy sheriff, the 28th September, 1819, at 8 A. M. who levied upon the personal property of Curtis and Lawrence, and sold Lawrence’s property on the 15th September, 1821, to $450 30, which was paid to Hutchinson; and on the 15th of January, 1822, Hutchinson received $240 90, in full of his judgment. That the judgment was given for a debt of Curtis, Lawrence being the surety; that under date of the 10th May, 1820, Curtis executed a bill of sale of the horse in question, with divers other personal property particularly mentioned in it, reciting that Lawrence had thus become security, and providing that the articles should he at the. disposal of Lawrence, in case he should be made liable on the judgment; that he might turn them out to be sold on the execution, or take them into his own possession, and dispose of them at private sale, accounting to the vendor for the proceeds. That this instrument was made out in 1821; and was sent by Curtis to Lawrence on the 15th September, 1821, without any re quest of Lawrence for that purpose, at that time; though Lawrence had frequently requested Curtis to secure him; that the bill of sale was intended to include all the personal property of Lawrence holden by the execution; and was ante-dated by mistake; that Lawrence never took possession of the property, or any part of it. That on the 30th November, 1821, a judgment was rendered before N. H. Earll, Esq. a justice of Onondaga, in favor of Lawrence, against Curtis, for $100 32, on a written confession, in these words: “ Joab Lawrence v. Medad Curtis. Medad Curtis, the defendant in this cause, hereby certifies, that he is indebted to the plaintiff in this cause, in the sum of $100 over and above all demands in favor of the defendant against the plaintiff; and that the same is due for money paid by him to James Hutchinson, as security for him, the defendant. Witness, <fec. November 20th, 1821.” (Signed) Medad Curtis. That the judgment confessed was for part of the money raised by a sale of Lawrence’s property; and Curtis made affidavit before the justice thus : “ Onondaga county, ss. Medad Curtis the above named defendant, being duly sworn, saith, that the above statement is true, and that the judgment confessed in the above cause is not for the purpose of defrauding creditors, and that he honestly and truly owes that sum to Medad Curtis.” That on the 1st December, 1821, execution was issued on the judgment by consent of Curtis, and delivered to J. Bronson, a constable, who, on the 3d December, 1821, levied on Curtis’ property, including the horse, having then the bill of sale, which was delivered by Joab Lawrence to his son Edmund Lawrence, (the defendant in error,) the appellee in the Court below, and by him delivered to Bronson, to have the property specified in it levied upon by him, on the justice’s execution. That on the 15th December, 1821, Bronson sold the horsa on this execution to Edmund Lawrence, (the defendant in error,) who took him into his possession. That other articles beside those mentioned in the bill of sale were also levied on and sold. That when the horse was sold, he was in Curtis’ barn, but had been taken out and shown, and several bids made on him, dec. That in August term, 1820, of the Onondaga C. P., Jonas Earll, Jun. recovered judgment against Curtis, for $102 47, docketed 29th August, 1820 ; upon which a writ of fi. fa. was issued and returned nulla bona ; and on the 30th November, 1821, an alias fi. fa. tested the 29th November, 1821, and returnable the 4th Monday of February thereafter, was delivered to Elisha Marsh, (the plaintiff in error,) the appellant below, a deputy sheriff of Onondaga; that on the 18th December, 1821, Marsh took the horse in question from Edmund Lawrence, and advertised and sold him previous to this suit being commenced before the justice. That Curtis had possession of, and used the horse from the 30th November, to the 15th December, 1821, Marsh & Curtis residing within 100 rods of each other in the same village. That Marsh knew nothing of the constable’s sale, till the day he took the horse. That the execution in favor of Earll was returned satisfied by Marsh; but whether, &c.</p> <p>The Court of Common Pleas gave judgment for the plaintiff (the appellee) below.</p>

<p>general owner of a vessel ownership and possession in charterer, the ridered^owner! and the former</p> <p>wherefore's not part with and contmi'of tho vessel.</p> <p>In the latter case, he may maintain an action for the freight, in the name of the master, on the bills of lading.</p> <p>Or he may enforce his claim by detaining the goods till payment, the law giving him a lien for the freight.</p> <p>Where the general owners agreed to freight and let a schooner to D., Edes master, to proceed from New York to Havana, thence to Curacoa, thence to Jacmel, and thence to New York; the owners covenanting that she should be tight, strong, well manned, victualled and apparelled during the voyage ; that D. might load, and discharge from on board, such cargo or cargoes, or parts thereof, in either of the ports or places, as by them should be ordered ; the schooner to proceed as soon as dispatched by D., at either or any of the ports or places mentioned, direct, and without delay, to the next port or place, D. agreeing to deliver and receive the cargoes, or parts thereof, at all the places, along side, and within reach of the vessels ; to pay the owners at the rate of $325 per month, at the end of every month, if in port, or on her arrival (if required,) with all port charges except at New York ; also to advance what might bo necessary for expenses, if wanted; sufficient room in the hold to be allowed for the provisions, wood and water, and for storage of the cables ; and on the vessel arriving at Havana, or any other port mentioned, if D. should request it of the muster or commander, the vessel to return direct to New York, in which case the voyage to be deemed ended, as if she had visited all the ports ; held, that tho general owners did not, by this 'contract, part with tho ownership and possession of tho vessel to D., so as to preclude their lien for freight; and that they might sue tho consignee for tho freight on the bill of lading, in the name of the master: and that a payment to the charterer, with notice of the owners’ claim, would not protect the consignee. „</p> <p>Whether the general owner has parted with the ownership and possession to the charterer, must be determined from the charter party.</p>

On petition of partition, under the act for the partition of land. (1 R. L. 507.) The plaintiffs presented their petition to the Supreme Court, for the partition of certain lands laying in the county of Rensselaer.

Assumpsit for land sold and conveyed by the plaintiff to the testator. The declaration also contained the general money counts. The cause was tried before Nelson, C. Judge, at the Otsego Circuit, September 16th, 1823. The declaration did not lay any promise from the executors to the plaintiff, since the testator’s death; but merely averred a promise by the testator.

<p>Debt on bond, given by the defendant to the testator, ^ Ulster circuit, November, 1823, before Betts, 0. Judge.</p> <p>The bond was dated February 6th, 1786, and conditionedto pay $712 5Ó, February 6, 1787, with interest at and after the rate of 6 per cent, per annum, on which was endorsed £9, November 19, 1794, and £29-in 1813, and £29 111 t^ie same year.</p> <p>The defendant claimed to set off an account in his favor, agalnst the testator, running from July, 1781, to May, 1820, containing charges in almost every month of the intermediate years, for some small articles of service, or goods sold, gUch as usually pass in trade and interchange of labor, between farmers, amounting to $1187 50.</p> <p>Both the bond, endorsements and the account, after deducting a small account of the plaintiffs, were admitted; and it was agreed that the balance should be set off against ^ie bond; and the only question was whether interest should be allowed on the bond, and for how long, and whether, without making the account apply from time to timé as payment upon it; or whether interest should not be allowed upon the account, which had never been footed settled,</p> <p>A verdict was taken for the plaintiff, for $1000, subject to the opinion of this Court, upon the above points. The balance to be struck by a referee named by the parties, according to the rules to be laid down by the Court.</p> <p>■ The Judge, at the Circuit, decided, that the bond drew interest from its date, at 6 per cent, and no more, and that interest should be denied on the account.</p>

On certiorari to a Justice’s Court. The Justice returned that French declared against Harwood, who was brought before him on a warrant issued March 10th, 1825. Harwood objected to any proceedings, on the ground of his privilege, he having attended a Con; l of special sessions as a party, and not having had time to return home before his being arrested upon the warrant; and made other objections, all of which were overruled.

<p>The plaintiff mond.edhis0 MU of particulars, after his cause tried, a new ces of trial afm’being noticed for time of the a-</p> <p>on terms of costs,'Ifthedofondant changedhis defence, If not, then motion.** ^</p>

The capias ad respondendum was, by mistake, made returnable on Sunday the 15th May, 1825 ; and, for this reason, Sunday being out of term, or rather after the last return day.

J. Platt moved for a mandamus to the Judges of Columbia C. P. commanding them to vacate a rule quashing an appeal from the Justices’ Court of the city of Hudson, brought by Van Hoesen against M’Kinstry. The case was this: Van Hoesen appealed from a judgment against him for damages and costs in favor of M’Kinstry; and the appeal bond was executed in the name of Van Hoesen by A. L, Jordan, as his attorney.

On certiorari to a Justice’s Court, it appeared that the attorney for the plaintiff in error wrote the return; hut he swore that the justice voluntarily, and without request, came to his office, and desired him to write it, which he did, the justice dictating the whole of the facts. A motion was now made to set aside the return as irreguiar; and Fox v. Johnson, (3 Cowen’s Rep. 20,) was relied on.

Action of covenant tried before Throop,.C. Judge, a'f the Onondaga Circuit, 1823. The declaration was in covenant on a contract between the parties, to be performed in the state of Pennsylvania. Plea, non est factum. On the trial, the contract offered in evidence was signed with the name of Herriot; but instead of wafer or wax, there was a scrawl with the word seal in the locus sigilli ; and the concluding words off the contract purported a seal in the usual form.

In trespass quare clausum fregit in this Court, the plaintiff at the Circuit recovered only 132 50: but the Circuit _ .. , „ , , , . , . , . . , Judge certified that the title to land came in question; and

There were eleven causes on the same demise against different defendants, and the same attorneys in each ; and the defendant’s attorney had prepared eleven different sets of papers, for eleven different motions for judgment as in case of nonsuit, on the same ground, and for the same cause arising at the same time; and the question was, whether the defendants should respectively, on the plaintiff’s stipulating, be entitled to have the expense of all these papers taxed against…

On error from the C. P. of New York. The plaintiff assigned errors specially in the record, alleging diminution; , ... . . and sued out a certiorari m order to verity the diminution; out without waiting to have it returned, entered a default for not joining in error.

°N coTlioxari to a Justice’s Court. Goodyear sued Baldwin in the Court below, by summons, on the 6th April, 1825. Baldwin pleaded his privilege as an attorney and counsellor of the Court of Errors, (then sitting.) On which, Goodyear took issue, and Baldwin requested an adjourn-menb to enable him to procure evidence to show the truth of the plea. This was denied.

<p>wleet tied _ by lapso tho ámendme,nts af°scr" vod, or by arrangoment botiosrmmtP”¡ drawn out, copied and serVed at or bofore giving notice of argu* ment, in tho same manner as where it is settled by a judge.</p> <p>Otherwise, it will, on motion, be stricken from the calendes of the term.</p>

Motion to sot aside the return to a writ of certiorari to a fustice’s Court, on tho ground that the return was drawn by the attorney for tho defendant in error; and Fax v. T - ’ Johnson, (3 Gowen’s Rep. 20,) was relied upon.

This cause had been put off at the Circuit, on motion of the defendants on the usual terms of paying the costs of the Circuit; and, the costs having been taxed, on motion for re-taxation, the following items were held to be properly allowed as a part of those costs : Dr. nisi prius record,fol. 4 and engrossing, $1 26 Enrolling pleadings thereon, fol. 225 at Is. 28 12 These were allowed, although the cause had once been carried down at a previous Circuit, when a nisi prius…

<p>appeal cuit judge eicertificate of probable cause.</p> <p>court wiI1 not he“ an arsu*</p>

P. commanding them to vacate a rule dismissing an appeal to them from a Justice’s Court, brought by Shethar against Crook. The cause proceeded to trial, and after the appeliant ghethar, who was plaintiff before the justice, had gone through with his evidence to the jury, the appellee objected that the appeal bond purported to have been executed by ghethar, by his attorney. The justice had endorsed his approval of the security.

The venue was laid in the county of Cortland; but, at the last February term, was changed, by rule of this Court, to the county of Delaware, and notice of the rule, but not a certified copy, served on the agent of the plaintiff’s attornev. . V , The default, on which the present motion was founded, was the not trying in Delaware. The motion was opposed, on the ground that a certified copy of the rule had not been served; and Thompson v. Douglass, (2 John.

<p>ZaiM as^abotting in the rear street °which was merely such upon a map, hut not actually opened, the land blTby a°street in ftont, is not grant oTway inthe supposed rear; nor is it covenanT^to open the street</p>

<p>A public inficen lald out by three counuon°pieas! on a petition to' discontinue it-, they disconpaít^and'certiorari ^was. tSS decision; held, that the certiorari did not suspend proceedings as the^road which dhTCtcd^toTe discontinued, but that the commissioners were bound to go forward and open this part.</p> <p>And a mandamus to compel them to do this was granted, notwithstanding the certiorari.</p>

On a verdict for the plaintiff, he had procured the costs of entering the defendant’s notice of special matter, on the r°H and tiisi prius record, to be taxed by a commissioner, which

This cause had been commenced in this Court, but was, pursuant to agreement of the parties, submitted to arbitrators by a general submission of all matters in difference : J ° _ _ . _ - . __r. . and the arbitrators had {inter aha) awarded that Wimple should pay to Tan Alstyne the costs of this suit, ¿o be taxed. Tan Alstyne had procured them to be taxed by a commissioner ex parte, and without notice to Wimple.

^'HE Common Pleas of Erie county had, on mo ■ tion, set aside a capias ad respondendum, at the suit of R°ot; against M. K. St. John, administratrix, &c. on the ' ground that more than one term intervened between the _ _ test and return; and now, on an affidavit of this fact, and notice of the motion served on the attorneys of Mrs. S. John, in the Court below, A motion was made for a mandamus to compel the Judges of that Court to vacate the rule, which this Court . , were…

<p>One who sues en autre droit, in good without *k°proper grounds, may discontinue without costs.</p> <p>jE g. The assignee of an insolvent debtor.</p>

<p>Assumpsit for money had and received by the defenants to the use of the plaintiff, after the death of his intes£a|e an¿ after the plaintiff had taken out letters of administration. The plaintiff sued as administrator for a trover and conversion of the goods of his intestate, recovered judgment, and retained the defendants as attorneys, to bring debt on that judgment. They did so, obtained a second judgment, anq collected the money, for the balance of which this ac- , J 7 . „ _ . 1/Y, tion was brought m the name of the plamtiif as admimstrator who recovered, a verdict at the Circuit for #26 63.</p>

<p>J. L. Viele moved for judgment as in case of nonsuit, for not proceeding to trial at the last Saratoga Circuit, pursuant to notice.</p>

Judgment of nonsuit having been obtained against the plaintiff, the defendant’s attorney issued a ca. sa. for the costs, to the sheriff of Oneida, who arrested the plaintiff, received his draft on E. B. for the money, which he was directed by an endorsement on the ca. sa. to receive, and discharged the plaintiff: whereupon the defendant’s attorney issued another ca. sa. upon which the plaintiff was again arrested.

A. C. Paige, moved to change the venue in this cause from the county of Ontario to the county of Schenectady, on the usual affidavit,

The action was covenant. The defendant’s- attorney omitted to plead, or give notice of the special matter, supposing this unnecessary, till a few days before the circuit at which the cause was noticed for trial, when counsel advised to give the notice, but the plaintiff’s attorney refused to receive it. ' 0 '

<p>Trespass against the defendant, for taking certain bales of cotton sheeting, manufactured and owned by the plaintiffs, from their possession in the town of Stuyvesant, county of Columbia. The defendant was collector of that town, and had a tax list of the town for A. D. 1823, and a warrant in the usual form to collect the taxes. This list, among others, included a tax of 149 dollars against the plaintiffs, assessed upon their property in the town of Stuyvesant, on an estimation as follows:</p> <p> </p> <p>The plaintiffs refused to pay the tax, on the ground that their property was exempt from taxation. To collect the tax by virtue of his warrant, the defendant levied on, and sold the above bales of cotton.</p>

Trespass quare dausum fregit, tried at the Schoharie 2 J - _ circuit, September 17, 1823, before Duer, -C. Judge. The action was commenced on the-2d day of Decernher, 1816.

Assumpsit, tried at the Oneida Circuit, July,. 1823, before Williams, C. Judge.

Assumpsit, tried at the Chenango circuit, August, 1S23, before Nelson, C. Judge. The suit- was commenced' in January term, 1821:, atidi was.brought to recover the amount of a joint.and several» promissory note- made by the defendants, dated January-1st, 181-9, for $300; payable, to the Bank of Chenango,.or: order, at 63 days. Plea, the general' issue. The execution of the note being admitted on the; trial;.

Case upon the statute, (sess. 36, ch. 63, s. 12, 1 R. L, 437,) for removing goods in execution, leaving the rent un paid ; tried at the Washington circuit, June, 1822, before (the late) Mr. Justice Yates. At the trial, it appeared that the plaintiff purchased the demised premises, which are situate in Salem, Washington county, at a sheriff’s sale, upon a judgment and execution against James Nichols, and received a conveyance dated Aprü 17th, 1819.

Covenant for rent upon a lease dated October 15th, 1818, given by the plaintiff to the defendant, for the term of two, three, five, or eight years, but not for a less term than two years, of two rooms, or the whole of the second floor, and two rooms chosen by the defendant on the third floor of a certain house or store in Beaver street, corner of William-street, in the city of New York, at a rent $425 per annum, which the defendant covenanted to pay, and entered into…

Ejectment for one-fourth of the south part of lot No. 10, in Glen’s purchase, in Herkimer county, tried at the Cir- ... , . ‘ , . _ . _ cuit in that county, before Williams, C. Judge, July 8, q Qoq On the trial, the plaintiff read in evidence a deed from J. 0. Hoffman, Eliza Ann Colden, and T. Cooper, to Cole, the defendant, dated January 21, 1798, for 400 acres of land, in lot No. 10, Glen’s purchase, including the premises in question.

<p>Tq rec0TeI in ejectment "£aso at sheriff's salo, on a judgment a* gainst a party gi°^ ”ji6p°^ tiff must prove found Opresession, that the party against whom ^°g had some right, mtt™¡ premises sold, held not e"hafsuch party held adversely f0r years/but abandoned tho premises before judgment, to which she never returned ; though a few months after abandoning, she conveyed to the defendant in the ejectment, who afterwards entered under the conveyance.</p> <p>An equitable or legal seisin must be shown, on which a judgment can attach, and be a lion, in order to warrant a sale of real estate under it.</p> <p>Where tho party against whom the judgment is recovered, is the actual possessor, this is sufficient of itself; for actual possession is prima fade evidence of title; and he cannot show title in another.</p> <p>If one convey, before judgment against him, the land conveyed cannot be sold under the judgment; and the law will intend such conveyance to be bom fide, and for valuable consideration, till the contrary is shown.</p> <p>Even if the deed be founded on natural love and affection, it will not be void within the 13 Eliz. as against creditors, if it bo not shown that the grantor was indebted to such a degree, that tho settlement will deprive tho creditors of an ample fund for payment of their demands.</p> <p>And a deed upon such a consideration is good within the 27 Eliz. as against subsequent purchasers.</p> <p>But not in either caso, if a fraudulent use be made of it.</p> <p>Tho registry acts are not confined in their operation to subsequent immediate purchasers from the same grantor; but one purchasing mediately from him, e. g. under a judgment, is protected.</p> <p>The registry acts are remedial, and should be liberally and beneficially construed.</p> <p>But tho purchaser is not protected by these acts, unless the grantor, mediate or immediate, nad some interest which could pass by the prior recorded deed under which tire purchase! claims the protection of tho acts.</p>

Assumpsit, for money had and received to the pldintiff’s use, tried before Woodworth, J. at the New York sittings, the 23d April, 1822, when a verdict was taken for the plaintiff, for $2794 84, subject to the opinion'of the Court on the following case: The plaintiff, resident in Ireland, sent to the defendant, a resident in the city of New York, a bill of exchange dfawn by Cressy & Dawson, of Lawrence Town, in Ireland, on Abraham Bell, of the city of New York: merchant, in…

The history and statement of'this cáse may be gathered from 5 John. Ch. Rep. 522, S. C. 7 id. 157, S. C. and 20 John. Rep. 567, 610, S. C. on appeal from the decision in 5 John. Ch. Rep. 522. It now came up on appeal from the order mentioned in 7 John.

<p>Appeal from the Court of Chancery. On the 9th October, 1821, the appellant filed his bill in that Court against the respondents, stating that on the 5th January, 1820, and since, the appellant being the owner of a certain stock of dry goods, groceries, &c. in a store house in the city of Savannah; applied to Henry P. Russell, of Savannah, the agent of the respondents, an incorporated insurance company in the city of New York, for insurance upon this stock; that Russell on the same 5th January, agreed that the respondents should become insurers on the stock, for one year from that day, for $5000, at a premium of 2-J- per cent, the premium to be paid on that day; and that the company should execute a policy in the usual form; that the premium was accordingly paid to Russell, with $3 50 for the expense of a survey and policy; that Russell gave a receipt for these sums, declaring the object, consideration and purpose as above set forth, and signed the receipt, 11 John P. Russell, agent of said company f that on tho morning of the 11th January, an extensive and destructive fire broke out in Savannah, and consumed the greater portion of the goods; that the appellant gave notice to Russell of the loss, offered the usual preliminary proof and demanded a policy of insurance; but Russell stated that he had not forwarded the premium to the company, and had not received a policy from them, and he intimated that the company would not consider themselves bound by what had been done; that proper notice with the usual proofs were, in May, 1820, given to the respondents in the city of New York; but they had refused to execute a policy or indemnify the appellant to the amount lost, although the appellant had, on the 28th April, 1821, tendered to their president the amount of the premium,</p> <p>The bill prayed that the respondents might be decr.eod to pay the amount agreed to be insured, or to execute the policy, &C.</p> <p>To this bill the respondents answered, admitting all the material facts charged, except Russell’s agency. They denied that he was agent, or had power or authority to act for them otherwise than as. a surveyor. They admitted that they had appointed him surveyor for them in Savannah, <fcc. of buildings insured, or in which goods offered for insurance were kept; and empowered him to state to applicants at Savannah, the probable rates, according to the nature of the risk at which insurance might be expected to be effected by them; always, however, reserving to themselves the power and control to abide by, or to vary the rates so stated by him, or entirely to decline such insurance, when the proposal for such insurance and his report or survey should be presented to them for their deliberation. That they permitted him to receive the probable premiums, and transmit them to the respondents, in order to prevent unnecessary delay in effecting insurance; but absolutely denied that they ever appointed him their agent for insuring, or effecting any insurance against loss or damage by fire.</p> <p>To this answer the appellant filed a general replication; -and testimony was taken on both sides, mainly to the question whether Russell was agent, as alleged in the bill, for the purpose of contracting to insure in the name of the company. The proofs need not be recited here, because they are briefly stated by the Chancellor in his reasons for the decree, and are gone very fully into by the Judges who delivered the opinion of this Court.</p> <p>The cause was brought to a hearing in the Court of Chancery, on the pleadings and proofs, November 27th, 1822 ; and on the 28th December thereafter, the Chancellor decreed that the appellant’s bill should be dismissed; for which he assigned his reasons as follows:</p> <p>Kent, Chancellor. The essential point in this case is, whether Henry P. Russell was authorized to bind, and did bind, the defendants to insure the goods of the plaintiff, at the rate and upon the terms specified in the receipt which Russell gave to the plaintiff, on the 5th of January, 1820. The counsel for the plaintiff contends that Russell was-the general agent for-the defendants, at Savannah, for the purPose °f receiving premiums, and agreeing to make insurances, .and that they were hound hy his acts. The other side insist that Russell rvas not their agent for that purpose-: that he was only their surveyor, to survey and return a description of the property offered for insurance, to .state to applicants the probable rates of insurance, and to receive from persons willing to pay, the premiums he might think -fit to name, and to transmit the same to the defendants; and that they reserved to themselves a right to.deliberate and act upon the application, and to accept or reject the proposal and premium in their discretion; that in receiving the money Russell acted as the agent of the applicant, and that there was no.contract of insurance' in any case until the proposal had been received and accepted by the defendants, accompanied with a receipt of the premium at their office.</p> <p>Russell’s appointment was strictly that of “ Surveyor, for the.defendants, of buildings and goods offered to be insured in Savannah.” This appointment bore date the 11th of December, 1818. Under this appointment -as surveyor, Russell, on the 18th of February, 1819, published in the papers at Savannah, that “ insurances by the defendants might be effected by application to him, who had a table and classes of hazards, and rates of annual premiums, to be exhibited, and that he was authorized to say insurance would be effected as favorable to the assured as those of company in the United States; and that he would attend to the surveying the property, and would obtain the policies from the defendants with the least possible delay.” The proposals he signed as “ agent for Savannah ;” and he says that this advertisement he published at his own suggestion, and he .does not know that it ever came to the knowledge of the defendants.</p> <p>' I apprehend that the defendants are not bound by any as sumed power contained in these proposals, made and published without their authority. But the proposals do not, in fact, assume any authority to make contracts of insurance binding on the company. He was to receive applications, and through him as the medium of communication, iusuranees might be effected. He was authorized to say insur- ® anees would be effected on the most favorable terms; that he possessed the rates of premium, and he would attend to surveying the property and obtaining the policies. There is nothing in all this, that, upon any necessary and sound construction, carries the idea that he himself could make valid and binding contracts of insurance, in the first instance, without the subsequent sanction of the defendants. He was evidently, from his own account, to act only as a surveyor, with authority to receive and communicate applications, and to receive and communicate the answers.</p> <p>He had blank printed proposals of a circular nature, and without signature issued by the company; and one of these he affixed upon his store. It was a general outline of the classes of hazards, and rates of annual premiums, and conditions of insurance. One of the conditions was, that11 all ■applications for insurance must be made at the office of the company.;” and another, “ no insurance will be considered as made or binding until the premium is paid, and that every policy of insurance made by the company, shall be sealed with its seal, and signed by the president and secretary.”</p> <p>Hitherto we have discovered nothing that will justify the conclusion that Russell had authority to make a contract of insurance binding on the company. And if we recur to the correspondence between them, we shall equally fail in discovering the power contended for in this case.</p> <p>In a letter from Russell to the defendants, dated April 9th, 1819, he observed, that, “ there is a difficulty, owing to the distance from New York, in getting along with insurances -here, and I have written to Mr. Swords on the subject. Unless I am furnished with blank policies' ready-signed, or unless my receipt for the premiums as agent is made binding on the company until the policies can be obtained from the office, I suspect but little can be done in the way of insuring,, for I ■ find that applicants want the risk to commence as soon as the premium is paid.” The answer from the defendants, by Mr. Swords, their president, was dated the 27th of April, 1819, and states, that “ the company had never furnished agents or surveyors with blank policies. The hoard will never sanction it. The most and best that can be done is, that all insurances that you may agree to make, and for which the premium you sb-ab charge, shall be actually paid, and shall be received here, the office will consider as enuring at the time of the payment to you, so that in case of accident between such time of payment, and the receipt of the money here, the company will indemnify such loss ; provided, however, that the office shall recognize the said rate of premium which you shall charge, and shall be otherwise satisfied with the risk. The company will in no case guaranty the transmission of money for a premium. Insurances are effected here, only, on the actual payment of the premium to one of its officers.”</p> <p>By another letter from the defendants, by their secretary, of the date of the 28th of April, 1819, they say, “ no insurance shall be binding until the premium is received at this office. The reason of this rule is, that the company will not be responsible for the risk of sending the premium either by land or water. I am authorized, however, to assure you, that in all cases where the risk is accepted, on the receipt of the premium here, they will execute the policy to take effect from the time the premium was received by you, if the same shall be requested in the letter accompanying the survey.”</p> <p>By these letters the company expressly declared, that the receipt of the premium by the company, at their office in New York, was indispensable, and that the insurance was to be effected there only. The company were to recognize the rate of premium, and to be satisfied with the risk, and then, and on the receipt of the premium, the contract was to be made by them, and then it might relate back to the date of the receipt of the premium by Russell, if that was the pleasure of the other party. It was impossible for the company in more expressive language to have retained in their own hands their right to bind themselves, or more pointedly denied that right to their surveyor.</p> <p>It appears by the testimony of Russell, that in several instances the rate of insurance agreed on (and conditionally of course) bv him was satisfactory to the company, and confirmed by them, and the policies made to bear date with the receipt of the money at Savannah. But Russell himself, evidently considered his agreement, with the cants, as not binding on the defendants. In his letter to the company of the 18th of December, 1819, he says, “I herewith forward to you two more applications for insurance which I presume will be accepted by the company at the rates of premium which I have named, as I wish to do nothing which they will not confirm. I have fixed the premium agreeably to that established by them for buildings of this description. I forward three or four surveys. If they are received, I will thank you to inform me as soon as may be, whether the others are accepted by the company, as in that case Ave Avish the insurances effected as soon as practicable. It will be desirable, in every instance, that policies be forwarded with as little delay as possible after the receipt of the premium.”</p> <p>This letter Avas written only a few days before the plaintiff made application to Russell, and paid the rate of premium agreed on; and I cannot perceive either in the written documents or in the usages or practice of the company, any authority in Russell to bind the defendants in a contract of insurance, before they had seen the terms, or exercised their judgment upon them, and accepted of them, and actually received the premium.</p> <p>It is extremely probable that if the terms and premium had been received in this base, before notice of the fire, they would have been accepted, and the policy Avould have been issued. And so Ave may say that, in ten thousand other cases, property lost by fire might have been insured upon the usual terms, if application had been made and, received in due time. The question here is, Avas a valid contract made by the defendants so as to fix the risk upon them from the receipt of the premium by Russell ? If his agency in agreeing to the rate of insurance and receiving the premium, did not of itself, and forthwith, irrevocably bind the defendants, it is certain that they are not bound ; for they did nothing afterwards in ratification of that agreement. I consider that Russell was strictly the agent of the plaintiff in receiving and undertaking to transmit the premium; for the defendants had repeatedly declared that they would not consider the premium as paid until'received at their office. It would he unjust, as respects the defendants, to bind them without their assent, and contrary-' to their declared will explicitly communicated to Russell; nor can they be fairly accused of any deception towards the public, or charged with holding out to the World that Russell was invested with absolute powers- to bind them, There was nothing in all the documents or letters he possessed, to warrant such a conclusion, and if the plaintiff dealt with him in confidence that the agreement with him was binding, he did it without due examination, and at his own peril.</p> <p>The only- circumstance that seems to give any color- to the claim, is, that the defendants in several instances allowed the policies to relate back and cover the property' from the time the premium was received by Russell, so as to assume the intermediate risk. But this was in pursuance of their letters of the 27th and 28th of April, in which they promised to do it if the.same should be requested, and always-with a proviso, that the premium had been actually received by them, and the rates of premium approved of, and the risk abjudged to be satisfactory. The important right of the company by their board of directors to deliberate upon the terms stated, and to judge of the expediency of the risk, was always reserved ; and it is a right so essential to the safety and credit of every insurance company, that we ought not to consider it as having been renounced, unless we are warranted by the clearest proof. If the company were bound definitively by the act of Russell, in - this case, they were equally so in every- other case,' in which-the premium was paid to- him; and the office of insurance, upon that construction, was transferred' to Savannah, and' Russell substituted for the board "of directors, provided for by their charter. A deduction so alarming, and so repugnant to the duty of the directors of the in'stitution; ought to rest on positive proof, and not on presumptions raised in opposition to the declared purpose of the company.</p> <p>Upon the. whole, I see nothing in this case that can justify me ill saying that the agreement between the plaintiff and Russell, on the 5th of January, 1820, was an agreement to which the defendants were a party, or by which they were concluded.</p> <p>If no loss had intervened, and the defendants, upon information of the survey and rates of premium and payment of the premium, had in their discretion determined that the risk was not acceptable, I apprehend they would have been deemed in the lawful exercise of a right of deliberation, and that the risk would not, and could not have been enforced against them, contrary to their will. The circumstance of a loss occurring before they had time to deliberate could not, in reason and justice, impair their rights, and make that act binding which otherwise would not have been deemed so. The interpretation of contracts, and the administration of justice, ought to rest on general and fixed principles, and not on views of temporary hardship or expediency. I am, accordingly, of opinion, that the bill ought to be dismissed.</p> <p>The cause was argued, at the last session of this Court, in January, by</p>

<p>Whore the owner of an equity of redemption, filed her bill against an assignee of the mortgagee, to have it delivered up and cancelled, on the ground that it was paid, and that she had recovered in an ejectment against the assignee upon the point of payment; and the assignee answered the bill, and proofs were taken, and the cause brought to a hearing; when it was discovered that the mortgagee had assigned the mortgage conditionally; and that since the bill filed, the mortgage had been redelivered to Mm for a violation of the condition ; and he was thereupon brought in and made a party upon supplemental bill; upon which he answered both the original and supplemental bill at large, denying payment of the mortgage; to which the plaintiff put in a general replication, and brought the cause to a hearing -without taking any proofs, as between her and the mortgagee ; held, that the facts set up in the answer of the mortgagee must be taken, on the hearing, as true; and that he was not affected by the proofs taken between the origmal parties but should have been allowed to prove the truth of his answer.</p> <p>Held, also, that the recovery in ejectment was not conclusive against him.</p> <p>The bill filed against him was a supplemental bill, in nature of an original one and entitled him to a new defence ; otherwise, it seems, where a supplemental bill is in nature of a bill of revivor, and seeks merely to bring in parties who claim, under the original parties, the same interest by the same title. Per Golden, Senator.</p> <p>The doctrine of lis pendens applies only where a third person attempts to intrude into a controversy, by acquiring an interest in the matter in litigation , pending the suit. The reason and illustration of this rule. Per Golden, Senator.</p> <p>A verdict and judgment in ejectment is never conclusive, even between the immediate parties, except in an action for mesne profits. Per Golden, Senator.</p> <p>A purchaser, pendente lite, coming in as a party, after publication passed, would be bound by the previous proofs. Per Savage, Ch. Justice.</p>

On the 4th February, 1823, the respondents filed their bill in that Court, against William Fellows, the appellant, John Fellows, Thomas Fellows, and Roswell Day, charging that on the 24th November, 1815, Ezra Fellows, the intestate, was seised of 214 acres of land in Stillwater, Saratoga county, 150 acres of which were encumbered with a life lease from the intestate to his father, John Fellows, and a part by a mortgage of $700, and another part by a mortgage of $55; and the…

<p>This court, on granting a rule, that tho writ of error and transcript from the supreme court bo not received, pursuant to the first rule of this court, has no power to award tho costs of the motion.</p> <p>Till the writ of error be returned, tho court of errors are not in possession of the cause, so as to render any judgment.</p> <p>The power of this court to give costs, upon a writ of error, depends upon statute (1 R. L. 346 ;) which does not provide for costs on a mere no rccijpiaiur.</p>

The bill in this cause was filed in November, 1823. The defendants appeared and put in their several answers, to which, replications were filed ; and witnesses were examined. The material facts in the case, are fully stated in the opinion of the Court. The cause was brought to hearing, on the pleadings and proofs, at the stated term of the Court, in March, 1825, and was argued with much ability, by