Volume 4 — Denio's New York Reports

The plaintiff in error, on the eighteenth day of May, 1846, was indicted in the court of general sessions of Cayuga county, for the murder of John G, Yan Nest, which was alleged to have been perpetrated on the twelfth day of March preceding, at the town of Fleming, in that county.

Ejectment for a lot of land in the village of Elmira, Uhemung county, tried before Monell, C. Judge, at the Chemung . circuit in June, 1842. The premises in question were called the McClure lot, which is 13 feet wide and 218 feet deep, with the addition of a “ strip,” or piece of land on the east 9 feet ? inches wide, and 20 feet long. The McClure lot, with othei adjoining lots, were formerly owned by Clark Winans.

P. Sturtevant sued Blowers before a justice in November, 1844, and declared, among other things, for boarding the defendant’s family. The plaintiff was a blacksmith, and the defendant a carpenter, and there had been accounts and dealings between the parties in the way of their respective trades ; but nothing is in question on this writ of error but the plaintiff’s claim for boarding the defendant’s wife and child.

<p>Error to Columbia C. P. The parties joined issue before a justice of the peace, Abbott being plaintiff, and Draper defendant. The declaration was for goods sold and delivered, and the money counts: plea, the general issue. The cause was tried in December, 1843. The case was this: in October, 1842, the defendant agreed to sell the plaintiff a strip of land about six feet wide, and running back to the water, for the sum of §60; one half of which the plaintiff was to pay in money, and the other half in goods out of his store. The goods were to be delivered immediately, as they might be called for by the defendant. The money payment was to be made in July, 1843. upon receiving which the defendant was to give a deed. The contract was reduced to writing; but was never signed by the parties. The plaintiff took possession and occupied the land; and delivered goods to the defendant in pursuance of the contract to the value of §23,57. Upon this state of facts, the plaintiff brought this action in December, 1843, to recover the value of the goods. The jury found a verdict for the defendant, on which the justice rendered judgment, which the O. P. affirmed on certiorari. The plaintiff brings error.</p>

Boice sued Main and Seaton before a justice of the peace, and declared upon an instrument executed by Main as a constable with Seaton as his surety, by which, according to the provisions of the statute, they agreed to pay to each and every person who might be entitled thereto all such sums of money as the said constable might become liable to pay on account of any execution which might be delivered to him for collection; theplaintiffclaming to recover the amount of an…

Debt on a judgment in this court recovered by the testator in his lifetime, against the defendant and William Lockwood, since deceased, and whom the defendant has survived, for $571,75. The judgment was recovered in February term, 1827, in an action upon promises. The defendant pleaded several pleas.

Bailey sued Mogg in a justice’s court and recovered judgment, which was reversed by the common pleas on certiorari; and this writ of error is brought to review the last mentioned judgment.. The question is sufficiently stated in the opinion of the court.

<p>In an action by an endorsee of a negotiable promissory note, where the plaintiff is shown to have received it of the former holder after it became due,and he fails to show that he paid value for it, the suit is presumed to be prosecuted for the benefit of such former holder.</p> <p>And in such a suit, the declarations of the former holder, made while he held the note and after it had become payable, (to show e. g. that it was given upon an illegal consideration,) are admissible for the defendant.</p>

Demurrer to a replication. The declaration was in assumpsit for the recovery of certain instalments due upon shares of the capital stock of the plaintiff’s corporation, subscribed for by the defendant. Pleas, 1. Non-assumpsit. 2. Nul tiel corporation. Replication to the second plea, setting out the act incorporating the plaintiff, together with certain acts amending and continuing that act. The defendant demurred to the replication, and the plaintiff joined in demurrer.

The plaintiff in error was convicted of the offence of burglary in the third degree, at the July term of the recorder’s court in the year 1846.

Summary proceedings to recover possession of demised premises. On the 2d of May, 1846, an affidavit was made before one of the aldermen of the city of New-York, as follows: “ City and county of New-York, ss.

<p>Where a witness, after having given some testimony, discloses that he is interested in favor of the party who called him, the opposite party, in order to avail himself of the objection, must move to strike out the testimony so given.</p> <p>If he omit to do this, in a suit before a justice of the peace, the justice cannot in giving judgment reject or disregard the evidence of the interested witness.</p>

Swan sued Hurd before a justice, and having recovered, the cause went to the common pleas by appeal. A suit had been pending in this court in favor of the plaintiff against Delos Brett and others, which was noticed for trial at the Oneida circuit, held in Utica, on the fourth Monday of September, 1844.

The plaintiff declares as receiver of the St. Lawrence Bank, an association organized under the general banking law. The count is in trover for twenty Arkansas hnn-t~ fov <|1000 each, of the valueof $20,000; and the wrong is alleged to have been done to the bank.

Dickinson sued Fenno before the justice on a covenant ex&cuted by the latter to the plaintiff.

<p>A witness is incompetent to give evidence to increase a fund in which he is entitled to participate.</p> <p>Therefore, in an action by an administrator to recover a debt due to the intestate, the estate being insolvent, a creditor of the intestate is incompetent on the ground of interest.</p> <p>But the insolvency of the estate must be clearly shown.</p> <p>A residuary legatee is incompetent to prove a debt in favor of the executor. Per Beardsley, J.</p> <p>The decision of a surrogate in refusing letters of administration to a relative on the ground of unfitness, and appointing another person administrator, cannot be examined in an action brought by the latter in his representative capacity., The letters of administration are in that case conclusive.</p> <p>But a surrogate has no jurisdiction to accept the resignation of an administrator once appointed and to appoint another m his place; and where he assdméd to do sb, bilcl that the latter appointment was void.</p> <p>That the plaintiff is not administrator, may be pleaded in bar, and such plea may be joined with non-assumpsit.</p>

The defendant wag indicted for burglary in the second degree; and on the trial he claimed the right to peremptory challenges of the jurors, which was denied by the court; and having been convicted, and sentenced to imprisonment in the state prison for ten years, he brings error on a bill of exceptions.

Greene applied for an attachment against Dewey, before a justice of the peace, and made affidavit that the defendant wras indebted to him upon contract in the sum of six dollars, as near as he could calculate, over and above all discounts; and that the attachment was applied for on the ground that the defendant had fled from the county of Jefferson into the county of Lewis, as the deponent believed, to defraud his creditors; that the facts and circumstances upon which such…

P. Deland sued the Richardsons by summons returnable on the 15th day of July, 1844, which was personally served. On the return day the parties did not appear; but E'. S. Sweet appeared as attorney for the plaintiff, and W. F. Warner as attorney for the defendants. No proof of the authority nf tV was asked or given on either side. After joining issue in covenant, the cause was adjourned by consent to the 20th of July.

Demurrer to the declaration. The plaintiffs declared in assumpsit, setting forth in substance, that on the second day of December, 1843, the plaintiffs were the holders of a check drawn in their favor by Gilbert & Seymour, on the defendants’ bank, for $430,43, payment of which, on presentation, had been refused by the defendants; that afterwards, to wit, &c., Gilbert & Seymour were the holders of a bill of exchange drawn upon and accepted by S. K,.

Deyo sued Stewai t in a justice’s court in trespass, for an injury committed on his land by the defendant’s cattle; and on not guilty pleaded, with notice of special matter, the plaintiff obtained judgment, which was reversed by the common pleas on certiorari. It appeared from the return of the justice that the parties owned adjoining farms, and it was shown that the defendant’s cattle had been seen in the plaintiff’s field adjacent to the farm of the defendant.

Ejectment for lands in Cortland county, tried at the circuit court for that county in August, 1844, before the Hon. B. Whiting, C. Judge. The plaintiff claimed title to the premises in question by virtue of a statute foreclosure of a mortgage covering the premises, executed by the defendant on the 22d of May, 1832, to one Stephen Chipman, and by the administrator of Chip-man assigned to Sally Chipman, and by the latter to the plaintiff.

Morse sued Bogert before a justice, and declared for goods sold, money lent, &c. Plea, the general issue.

Error- to thé superior court of the city of New-York. Ftiack and the other defendants in error sued Meriari & Benétrd in' the1 court below, in assumpsit, for freight and primage ona quantity of goods shipped at Havre, and brought to the port of New-York in the packet ship Baltimore, of which the plaintiffs were the owners.

■ Error to Cortland common pleas. Pomeroy sued Moody before a justice, and after a trial by jury, there was a verdict for the defendant. On certiorari the common pleas reversed the judgment, because the justice went into the .jury room while they were deliberating upon their verdict, and gave them instructions upon the evidence, without the presence, or the express consent of the parties. They knew the justice was going into the jury room, and made no objection. .

common pleas. Hosier sued McKay before a j'ustice of the peace, and declared in covenant on a bond, dated Jan. 11th,1845, in the penalty of $100, executed by the defendant and one Collar, jointly ánd severally to the plaintiff, with the recital and condition following: 11 Whereas in a suit before Archibald Renwick, Esquire, a justice of the peace of the county of' Livingston, wherein the above named Nathaniel Hosier is plaintiff and the above named Thomas Collar is…

P. Brinkerhoff sued Miller before a justice, in trespass, for taking his cow. On the trial, the defendant proposed to justify the taking of the cow under an attachment in his favor against the plaintiff and one Hoyt, issued by a justice of the peace.

The declaration was for work and labor, and non-assumpsit was pleaded. It appeared that in the latter part of March, 1844 the plaintiff agreed to work for the defendant on his farm for seven months at ten dollars a month. There was some evidence, though slight, that if either party became dissatisfied he should have a right to abandon the bargain.

Lee sued Parry in a justice’s court in February, 1845, in trespass de bonis asportatis. Plea not guilty. The property was taken and sold on a warrant signed by the defendant and one Olcott, as trustees of a school district, for a tax against the defendant.

P. Van Leuven sued Lyke & Dumond before a justice of the peace, and declared in case, for that the defendants’ sow and pigs mangled and'tore a cow and calf of the plaintiff so that they died. Plea, the general issue. The cause was tried by jury.

On the trial in that court, evidence was given tending to show that the defendant Erwin owned the house, and rented it to the defendant Clark to be kept for the purposes of prostitution, she agreeing to pay double the amount of rent which the house would bring if let for a lawful purpose. The defendant Clark had the management of the house ; but the defendant Erwin was often in it, and well knew that it was kept as a common bawdy house.

<p>The evidence to prove the making of a promissory note, purporting to be signed by the defendant and payable to the bearer, was that the plaintiff’s agent called on the defendant with the alleged note in his pocket, but which he did not exhibit, and told him he had a note for that, amount against him, which he wanted the payment of for the plaintiff; and the defendant said he had given such a note and would pay it if the plaintiff would make a small deduction and indulge him as to time; held, that the note produced on the trial was not identified with that to which the admission referred, and that the proof' was insufficient.</p>

Indictment for selling strong and spirituous liquors, to be drank in the defendant’s house, without a license. The indictment contained five counts. The first four counts severally charged that the defendant sold to divers citizens of this state. The fifth count charged a sale to John Flanders.

Redemption of lands sold on execution. There were seven judgments against Daniel Hart and others, which were docketed in the following order: 1, in favor of Burnham ; 2, in favor of Dana; 3, in favor of Biddle ; 4, in favor of the same; 5, 6 and 7, in favor of the Bank of Ithaca. Executions were issued upon the judgments 1, 2 and 4, and the lands were sold by the sheriff on the 15th of January, 1842, to Isaac S. Kellum.

Redemption of land sold on execution. On the return to an alternative mandamus, the case was substantially as follows : On the 30th November, 1841, the lands of Samuel Hart were sold by the defendant, then sheriff of Tioga, on a judgment of this court against Hart and others, in favor of John Hollenback, docketed in 1838. Hollenback became the purchaser for $416,45, and received the sheriff’s certificate.

<p>The place of trial cannot be changed in a criminal case for the convenience of witnesses or parties; though it may be where a fair and impartial trial cannot be had in the proper county.</p>

The substance of the charge was, that Rice owned a farm of 72 acres of land in Potter, Yates county; and Ladue owned 220 acres of land in the state of Michigan.

Assumpsit. On the trial the plaintiff gave in evidence an agreement, signed by the defendants, bearing date October 12, 1839, by which, for value received, they jointly and severally promised to pay to the plaintiff, by his name or order, §250, with interest, payable one half in two years and the other half in three years from the day of said agreement, “ out of the net proceeds, after paying the costs and expenses of ore to be raised and sold from the bed on the lot this…

P. A justice of the peace issued a summons requiring Wilcox to appear at the justice’s office on the 9th day of August, 1844, at one o’clock in the afternoon, to answer Joel Clement, treasurer of the village of Saratoga Springs, in a plea of trespass on the case.

Alden sued Wynn before a justice of the peace, in July, 1845, as the endorser of a promissory note, made by one Defielde, payable to the defendant’s order, and held by the plaintiff. The only question was, whether the defendant had been charged as endorser. The note was payable on the 12th day of October, 1844, that being the third day of grace; and on that day the note was presented to the maker for payment, which was refused.

P. Elwood sued Piper before a justice, and declared upon a judgment which the plaintiff had recovered against the defendant before a justice of the peace for $9,37. On the trial, the judgment was proved; and it further appeared that an execution was issued upon the judgment, which was levied upon one of the defendant’s horses, which was sold for enough to satisfy the execution; and the constable returned it satisfied.

The suit was on an account for batcher’s meat, delivered prior to the 24th August, 1844, except as to the sum of 84 cents, which was delivered after that date. The account amounted to about eighty-two dollars, and the plaintiff proved the delivery of the meat charged in the account with the exception of an amount of four or five dollars.

Low sued Green-leaf in a justice’s court and the defendant had judgment for a set-off of $11,23 which the common pleas reversed on certiorari. The suit before the justice was in assumpsit, and was commenced on the 11th day of February, 1846. The plaintiff proved that about five years before the trial he let the defendant have ten dollars.

<p>Trover for a large quantity of personal property, tried at the Rensselaer circuit in November, 1845, before Parker, C. Judge. On the 31st May, 1834, Robert Tifft, being embarrassed with debts, confessed a judgment for §3,000 of debt, t'o Sykes & Sheldon. On the 28th of June following he mortgaged a large amount of personal property, consisting of horses, cattle, carriages, harnesses, farming utensils, crops, household furni . ture, wood, and other articles, to his two brothers, Sprague and Joseph Tifft, to secure the payment of §245,53, in one year, with interest. In case of a default in payment, the mortgagees were authorized to take and sell the property, returning the surplus. On the same day Robert Tifft gave a bill of sale to his daughter, the plaintiff, of other personal property, amounting in value,'as therein stated, to §285. The bill of sale stated that §250 of the sum was for the labor and services of the plaintiff for the last ten years, for her father; and that §35 was for borrowed money. The plaintiff was then thirty or thirty-two years old, and had for the most part lived with her father. She had been in feeble health, and was not known to have any property. No evidence was given to show that she had paid any part of the consideration mentioned in the bill of sale.</p> <p>On the 11th July, 1834, aji.fa. was delivered to the sheriff on the judgment of Sykes & Sheldon; and in November following the sheriff sold all the property mentioned in the mortgage, to the plaintiff, for §24. The sale was made subject to the mortgage; and the whole of the property, consisting of more than a hundred different articles, was sold in one parcel. The sale was made in the house. Some of the property was present, some in the barn, and some in the fields, and elsewhere on the farm. The mortgage to Sprague and Joseph Tifft was transferred to the plaintiff soon after she purchased at the sheriff’s sale.</p> <p>On the 15th November, 1834, Joseph P. Casey recovered a judgment against Robert Tifft and two others, for §613,24, on a note given in 1832, and due in 1833. Kfi. fa. issued on this judgment to the defendant, who was then sheriff of the county of Rensselaer; and in December, 1834, he sold the property mentioned in the mortgage, subject to the mortgage, and the property mentioned in the bill of sale. For that selling this action was brought. The plaintiff claimed a part of the property by virtue of her purchase under the Sykes & Sheldon judgment; and the rest of the property she claimed under the bill of sale to her from her father. There had been no change of possession prior to the sale by the defendant.</p> <p>The judge charged the jury in substance, that the sale by the sheriff to the plaintiff of the property mortgaged in one parcel, did not render the sale void in law, but it was a circumstance which might be taken into consideration in ascertaining the true character of the transaction. He also charged that the whole matter was a question of fact for the jury, as to the bona fides of the transaction. The jury found a verdict for the plaintiff for $1290,33. The defendant moves for a new trial on a case.</p>

P. Simon Tifft sued John Tifft in trespass before a justice, and declared as follows: “ The plaintiff in this cause declares against the defendant in this cause in action of trespass as follows, to wit, that on or about the 3d day of August, 1843, the plaintiff in this cause was owner of a certain swine,.in the town of Nassau and in said county, of great value, to wit, worth $15, and the said defendant or his family did then and there beat and wound and set his dog on said…

Thayer sued Wright before a justice in trover for a quantity of rails; and the case was substantially as follows: In 1835, the plaintiff leased a lot 62 feet by 40, in the northwest corner of his farm, where two roads met, to the trustees of school district No. 24, in Murray and Barry. The lease was in perpetuity; but the property was to revert when it ceased to be used for a school house.

P. Williams & Kellogg sued Stafford by summons returnable at the justice’s office, in Utica, on the 8th day of March, 1845, at two o'clock in the afternoon. The return of the justice states “ that at the time and place above specified for the return of the said summons, the said plaintiffs appeared,” by attorney: “ the defendant, nor any for him, did not appear.

<p>In a summary proceeding to recover the possession of land, the summons should be directed to all the parties proceeded against by name.</p> <p>But where the proceeding was against two, both of whom were named in the affidavit, and the summons was directed to .one of them “ and any other person in possession of the premises,” and both appeared before the officer, made affidavits and had a trial by jury, without objecting to the summons; held that it was sufficient.</p> <p>To warrant a proceeding under this statute, (except in a case where land has been sold on execution,) the relation of landlord and tenant, created by a lease or demise of the property, must exist between the parties.</p> <p>Accordingly, where the case made by the affidavit was, that the alleged tenant had in August, 1843, conveyed the premises to the party instituting the proceeding by a deed in fee containing the following clause: “ possession of the said premises to be retained by the said party of the first part [the grantor] until April I, 1844,” and that he held over and continued in possession after the last mentioned time, though he had received a month’s notice to quit; held that the facts did not constitute a tenancy within the statute, and that the officer had no jurisdiction.</p>

Stewart sued Ahrenfeldt before one of the assistant justices of the city of Net/-York, on a promissory note for $50, given to the plaintiff by the defendant, dated January 9, 1844,' and payable twelve months after date. It appeared, that the plaintiff formerly brought a suit in the supreme court, against both maker and endorser, on a promissory note for $255, dated December 31, 1841, made by one Parker, and endorsed by the defendant.

P. Stebbins sued Cooper before a justice, and declared in trespass for taking a cow. On the trial the plaintiff called a witness who swore, that he took a cow and drove it away from the plaintiff’s farm by order of the defendant. On cross-examination, the witness said he was a constable, and that he had no authority from the defendant except a military warrant for the collection of fmes, signed by the defendant as president of a court martial.

White sued Stevenson in a justice’s court and declared on a promissory note made by the defendant for $100, dated March 20th, 1837. The defendant pleaded a discharge under the late bankrupt act, granted by the district court of the United States for the northern district of New-York, on the 20th day of August, 1842.

Motion by Goodrich to vacate an award. The submission was by mutual bonds—one by Goodrich and The Glendale Company to S. & J. S. Williams; and the other by S. & J. S. Williams to Goodrich and The Glendale Company.

Ejectment for an undivided sixth part of 168 acres of land, part of lot No. 37, in the township of Camillus, now Van Burén, Onondaga county; tried before Whiting, 0. Judge, at the Onondaga circuit, in August, 1846. Joseph Collins was a soldier in the war of the revolution, and drew the lot in question. A patent issued to him July 8, 1790, which was delivered to William McCready.

Dodge & McClure brought replevin in the court below against Sheldon for a quantity of merchandize. Plea, non cepit, with notice of special matter. The property in question formerly belonged to Charles E. Morris, then a merchant at Jordan, who, on the 19th day of March, 1842, executed a general assignment to the plaintiffs as trustees for his creditors.

P. Stilwell sued Coope before a justice in assumpsit, and recovered: the case went to the C. P. by appeal, where the plaintiff proved a demand against the defendant for work, &c., amounting to $29,50. The only controversy was' upon the set-off of a note which the plaintiff gave to the defendant on the 13th of August, 1842, for $114,47, payable 90 days after date. The plaintiff relied on his discharge as a bankrupt as an answer to the set-off.

<p>The delivery of personal property by a debtor to his creditor as collateral security for the debt, is a. pledge of such property.</p> <p>A creditor having personal property pledged to him by his debtor, as security for the debt, cannot sell the same until he has first called upon the debtor to redeem the pledge; and he must also give him notice of the time and place of sale.</p> <p>The rule, in this respect, is the same, whether the pledge was made to secure a debt payable presently, or one payable at a future day.</p> <p>The holder of the pledge may, at his election, file a bill of foreclosure, or sell upon notice, after having made a personal demand of the pledgor to redeem. Per Jewett, J.</p> <p>If the pledgor cannot be found so as to have a personal demand made of him, the pledgee must resort to his bill. Per Jewett, J.</p> <p>If the pledgee sell the property without calling on the pledgor to redeem, the latter may maintain an action for the money without paying or tendering the debt; but in such an action the pledgee may recoup the amount of the debt. Per Jewett, J.</p> <p>In such a case, the pledgor may bring trover or assumpsit at his election. Per Jewett, J.</p> <p>And where the defendant gave his note to the plaintiff at four months for a precedent debt, and at the same time delivered to him certain merchandize as collateral security for the debt, which the plaintiff, after the note fell due, sold at auction, for less than its value, without notice to the defendant, and without calling upon him to redeem, and then sued the defendant for the balance of the note; held that the defendant was entitled to have the full value of the merchandize, and not merely the proceeds of the sale, applied to the payment of the note.</p> <p>And where, in such a case, it appeared that the value of the property was equal to the amount of the note, held that the defence was admissible under the plea of non-assumpsit.</p>

Pettit sued Orcutt in the court below in debt, on a judgment of the same court. The defendant pleaded nil debet, and gave notice pursuant to 2 JR. iS. 288, § 75, that the plaintiff’s demand had been bought and sold, or received for prosecution contrary to law.

The plaintiff in error was indicted in the sessions for selling liquor without a licence in the town of Barre, in that county. The indictment contained five counts, the first four of which were for several offences against the excise law as contained in the revised statutes.

Ejectment, for the north part of lot No. 127, in the Iron Ore Tract, in the county of Essex, tried at the Essex circuit in June, 1844, before Willakd, C. Judge. The plaintiffs proved that lot No. 127, in the Iron Ore Tract, was patented to Ephraim Morgan in the year 1819, and that he died in 1826, and that the plaintiffs are his heirs at law. The defendants were then proved to be in possession, and the plaintiffs rested.

<p>Though the issuing of a fi. fa. before the filing of the judgment record is irregular, yet when the record is subsequently filed, the fi. fa. thereupon becomes effective, and is from thenceforth regular.</p> <p>The court will not, on the motion of a creditor whose execution was issued on a subsequent day, inquire into the fractions of a day in order to pronounce a fi. fa. on a prior judgment irregular for having been issued at an earlier hour of the same day than that on which the record was filed.</p> <p>If both executions had been sued out on the same day, the particular hour when each was issued would be material to determine their priority.</p>

<p>Giving a notice of retainer for the defendant in a suit in this court, is not the entering an appearance in such suit, so as to require the filing of a petition at the same time, to enable the defendant to remove the cause into a circuit court of the TJhiteu States, pursuant to the act of congress.</p> <p>Where a capias in an action for a tort was issued against several defendants, but was served only upon one of them, being returned not found as to the others, and the plaintiff declared against the defendant so served; held that such defendant could make application to have the cause removed into a circuit court of the United States, without joining the other persons named as defendants.</p> <p>After the sheriff’s return and the service of the declaration against the defendant, on whom the capias had been served, the suit is depending against that defendant only.</p> <p>Where a citizen of Connecticut was sued in this court, by a citizen of this state, residing at Troy, and the defendant applied, according to the act of congress; for an order to remove the cause into the circuit court of the United States for the southern district of New-York, and the plaintiff desired that it should go to the court in the northern district'; held that'the court would not give it the latter direction, un less upon cause shown arising out of considerations of convenience</p>

<p>A submission to arbitration, entered into pursuant to the statute, with an agreement that judgment may be rendered on the award, but without any provision authorizing the awarding of costs, does not authorize the arbitrator to award against one party the costs and expenses of the other.</p> <p>But under such a submission, the arbitrator may award the fees and expenses of the arbitration against either of the parties.</p> <p>Accordingly, where an arbitrator, under such a submission, awarded that one of tho parties should pay to the other a certain amount for his damages, and another sum “ for his costs, charges, and expenses, including his witnesses and counsel fees, • and twelve dollars for the fees of the arbitrator;” on a motion to modify the award, held, that the sum awarded for the costs, charges and expenses of the party, should be stricken out, and that the residue of the award, including the allowance of arbitrator’s fees, should stand.</p> <p>The expenses of the arbitrator, not having been awarded, may be taxed in favor of the prevailing party on entering judgment. Semble. Per Beardsley, J.</p>

The material facts established by the affidavit are as follows: On the 16th • day of May, 1816, S. Dewitt mortgaged to the people of the state, 322 acres of land, part of lot 97 in the township of Ulysses, to secure a loan of f1200. He died in 1834; and his executors, pursuant to a power contained in his will, sold and conveyed 122 acres of the mortgaged premises to L. Gere, in August, 1836, and 131 acres thereof to T. Downing, in May, 1837.

<p>Redemption of lands. On the first day of August, 1845, the sheriff of Columbia county, by his deputy, sold certain lands belonging to Philo G. Shumway, by virtue of two judgments and executions against him, to John H. Mesick. Within the tune allowed to judgment creditors to acquire the right of the purchaser, Martin Yan Dusen, as the attorney of Isaac Shumway, paid to the sheriff the amount of the bid of Mesick, with interest thereon, and delivered to him certified copies of the docket of a judgment in favor of I. Shumway, from a clerk’s office of this court and from the clerk of the county of Columbia, where the judgment had been docketed pursuant to the act of 1840. From these copies of the docket it appeared that M. Yan Dusen was the plaintiff’s attorney in the judgment. Yan Dusen, on behalf of I. Shumway, at the same time delivered to the sheriff his own affidavit stating the sum due on the judgment at the time of claiming the right to redeem. After the title of the suit, this affidavit commenced as follows: “ Columbia county, ss. Martin Van Dusen, the attorney of the above named plaintiff, being duly sworn, saith,”</p> <p>The sheriff conveyed the premises to Mesick, as purchaser.</p>

<p>By the act “ to reduce town and. county expenses,” &c. {Slat, 1845, p. 188, 5 26,) the fees of magistrates and other officers, in proceedings for offences below the grade of felonies, are a charge upon the town where the offence was committed, though the accused was imprisoned, or gave bail with a view to a trial in the oyer and terminer, or general sessions, unless a trial in one of these courts actually takes place.</p> <p>If a trial is had in either of these courts, then all such fees are a county charge, though the proceedings were commenced before a magistrate.</p> <p>The words “ criminal proceedings,” in the twenty-sixth section of that act, embrace proceedings against beggars and vagrants; to prevent the commission of crimes; against disorderly persons; and search warrants and proceedings thereon. In these cases the fees of the officers concerned in the proceedings are a charge against the town.</p> <p>In all cases where the expenses of the proceedings are a charge upon the town, the fines which may be imposed and collected belong to the town.</p>

The defendant was found to be an habitual drunkard in February, 1845, and a committee was appointed to take charge of his person and estate. The plaintiff afterwards commenced this action of assumpsit by the filing and service of a declaration, obtained judgment by default, and issued execution.

The defendants, who were foreign fruit dealers, in the city of New-York, and had commenced business upon a small cash capital, applied to the plaintiffs in October, 1844, and stated that not having an established credit in the market, they could transact business much more advantageously, by having upon the paper which they should have occasion to issue, the name of some mercantile firm in good and established credit in the city of New-York; and that it would also be…

<p>In this and several cases between other parties, arising under the excise law of 1845, (Stat. 1845, p. 322,) motions were made—some by the defendants, and others by the overseers of the poor—all of which were considered and disposed of at one time. The facts in relation to the points decided are sufficiently stated in the opinion of the court.</p>

J. Sc W. C. Pratt sued Bennett before a justice of the peace, upon a written agreement in the following words: “ I agree to be security for the payment of Jarvis Crosby’s debt to J. Sc W. C. Pratt, to the amount of $4,09, and the legal costs made in collecting the same, made at this time; to be paid in nine months. Oct. 25, 1842. H. Bennett.” The defendant not appearing before the justice, there was a trial ex parte.

Declaration in covenant upon a sealed agreement between the parties, dated June 20, 1843, by which the defendant did, for the consideration therein mentioned, covenant and agree with the plaintiff to purchase the steamboat Columbia, belonging to the plaintiff, which was about to be advertised to be sold at public auction, by virtue of several chattel mortgages upon her, if to be had at a sum not exceeding thirty thousand dollars: that the plaintiff should be entitled to one…

<p>Error to the Rensselaer common pleas. Babcock sued Peck in a justice’s court, in assumpsit. The declaration was on a special agreement between the parties, by which, in consideration of certain things agreed to be done by the plaintiff, the defendant agreed to transfer to the plaintiff “ one thousand dollars worth of rail-road stock, and to pay the said plaintiff fifty dollars worth of goods, at his, the defendant’s, store.” The plaintiff avers performance on his part, and that he has demanded a transfer of the stock, and payment of the $50 worth of goods, but the defendant refused. Damages claimed, $100.</p> <p>Pleas. 1. Non-assumpsit. 2. That after this cause of action had accrued, and before suit brought, the defendant sued the plaintiff in a justice’s court, in a plea of trespass on the case, and recovered judgment therein for $30,76 damages and costs of suit, against the plaintiff in this cause; that the plaintiff in this action made a set-off in that, of the cause of action set out in the declaration in this cause, which was then and there heard, tried and determined in that action, with the other matters in question in that cause.</p> <p>To this the plaintiff replies, that on the trial of the action mentioned in said plea, the plaintiff in the present suit offered to set off the cause of action set forth in the declaration; which was objected to by the defendant in the present suit, and that on such objection it was rejected, and the same was not then and there heard, and determined with the other matters in question in said suit. 3. "This plea alleges, that after the present cause of action accrued, and before this suit was commenced, the defendant impleaded the plaintiff in the justice’s court, &c. in a plea of trespass on the case upon promises, and such proceedings were had, &c.; that the defendant recovered judgment against the plaintiff for $30,76 damages; that the plaintiff in this case neglected to plead and set off in that action, the demand and cause of action in the declaration in the present case, mentioned and claimed. To this the plaintiff replies, that at the trial of the action in the plea mentioned, the plaintiff in this suit offered to set off the cause of action in the declaration alleged, but to this the defendant in the present suit then and there objected, although, at the time of joining issue in that cause, the general issue was pleaded, and notice of set-off given ; but that the said set-off, offered as aforesaid, was, under the objection thereto, made by said defendant, as aforesaid, then and there rejected by the court.</p> <p>Demurrer to both replications, and joinder. Judgment for the defendant with costs, which the O.- P. affirmed on certiorari.</p>

<p>The plaintiff’s attorney in a suit in which judgment is obtained, has no authority, as ouch attorney, to direct the sheriff what property to levy upon on the execution.</p> <p>Accordingly, where the plaintiffs in an execution were sued in trover by a stranger, for property seized and sold by the sheriff on such execution; held that evidence that their attorney in the judgment had directed the sale of the property for which the action was brought did not prove a conversion by the defendants.</p>

P. Tail sued Ackerman and three others before a justice, and declared in trespass for taking and selling a one horse harness.

Motion to set aside the report of referees. The defendant was the cashier of the Commercial Bank of Buffalo until the end of July, 1841, when he resigned. The bank failed and its effects passed into the hands of the plaintiff as receiver about five months afterwards. The plaintiff claimed to recover the balance of the defendant’s individual account appearing upon the ledger, amounting to $2035,07.

<p>Error to the St. Lawrence common pleas, where an action of trover by Alexander against Taylor was tried in May, 1845, on appeal from a justice’s court. The plaintiff sought to recover for the conversion of a mare. Plea, not guilty, with notice of special matter.</p> <p>In 1841, the mare in question was owned by Eice & Tucker,' who were partners, and resided at Brasier, St. Lawrence county. The plaintiff lived at Syracuse, but had a store and furnace at Brasier, the business of which was conducted for him by J. W. Skinner, as' his agent. In June, 1841, Rice <fc Tucker being indebted to the plaintiff in $250, executed to him a mortgage of this animal and other property, to secure that debt, conditioned to be void if they should pay the debt .by the first of June, 1842, and it authorized the plaintiff to take possession and sell the property before that Jime, if he should consider himself insecure. The mortgage was filed in the proper town clerk’s office. At the time of the execution of the mortgage the mare was in the possession of Skinner, the plaintiff’s agent, but was shortly afterwards lhissing, and was found in the defendant’s possession, who refused to give her up upon a demand made on behalf of the plaintiff.</p> <p>The defendant proved a judgment in his favor rendered in the common pleas of St. Lawrence county, in an action of replevin for two mares, against Skinner and one Winchell. The ■suit, as appeared by the record, was commenced in 1841. The defendant Skinner pleaded non cepit, and gave notice setting forth the ownership of the mares by Rice & Tucker, the execution of the chattel mortgage as above mentioned, and that the plaintiff deeming himself insecure, he, Skinner, as his agent and servant, took the mares, &c. Winchell interposed a similar defence. The cause was tried in Hay, 1843, when the plaintiff had a verdict and judgment. The plaintiff, in this suit, objected to the reading of the record, but the objection was overruled, and the plaintiff excepted. The defendant’s counsel then moved for a nonsuit, on the ground that the judgment was a bar to the action; and the court being of that opinion, the plaintiff was nonsuited, and he excepted. Error was brought on a bill of exceptions.</p>

Assumpsit, tried at the Erie circuit, in July, 1843, before Dayton, C. Judge. The plaintiff claimed to recover, 1. The amount of a promissory note made by the defendant, March 24, 1836, for $500, as to which there was no controversy; 2. The sum of $250 paid by the plaintiff in part satisfaction of a note which the defendant had given, with several other persons to one Reed, with interest thereon; and 3.

P. Dodge sued Fish in the Albany justices’ court, and declared in a special action on the case for a nuisance, for that the defendant by manufacturing steam engine boilers adjoining the dwelling house of the plaintiff in Beaver-street in the city of Albany, created a great noise and dust, whereby the plaintiff was injured in her property and peaceable enjoyment of her said dwelling, and whereby her boarders were forced to leave her—the said plaintiff, then and there keeping…

Smith sued Dumont in the court below in trespass. The first count was for breaking and entering the plaintiff’s close, called a law office, and taking and carrying away a promissory note, made by the defendant, which the holder had left with the plaintiff as an attorney at law for collection, whereby the plaintiff (amongst other things,) had been deprived of the costs of collecting it. The second count was in trespass de bonis asportatis—for taking and carrying away the note.

<p>Mere possession of personal chattels, without some other evidence of property or of authority from the owner to sell, will not enable the possessor to transfer a better title than he has himself. Per Bronson, C. J.</p> <p>Yccordingly, where the plaintiff, having lumber lying on the bank of the canal, agreed with P. that he might ship the same in the plaintiff’s name, to the defendants at Albany to sell, and that when sold the plaintiff should receive a certain sum per thousand feet, and P. the balance of the proceeds—the title and possession to remain in the plaintiff till he was fully paid; held that the transaction was only a bailment by the plaintiff to P. And he having shipped the lumber to Albany in the plaintiff’s name, and assumed to sell it to the defendants; held further, that no title passed to them.</p> <p>Held also, that P. was not, under the facts stated, a factor entrusted mth the possession of the property for sate, so as tobe deemed the true owner, in order to protect persons purchasing from him, as provided by the third section of the act relative to principals and factors or agents. fStat. 1830, p. 203.)</p> <p>The first section of that act, providing that persons in whose name property is shipped shall be deemed the true owners thereof, so far as to secure consignees for advances thereon, applies only to cases where the shipment in the name of another person is made by, or with the consent of, the owner.</p> <p>Therefore, where property is entrusted to an agent to ship in the owner’s name, and he ships it in his own, and obtains advances thereon, the consignee making such advances is not protected.</p> <p>The character and terms of a bill of lading stated. Per Bronson, C. J.</p> <p>A paper signed only by the consignor, stating the s’ jment, and entrusted to the master, is not a bill of lading.</p> <p>Where the master, upon receiving property on board, signs and delivers t: the owner a regular bill of lading, he cannot afterwards prejudice such owner by executing another bill of lading acknowledging the property to have been shipped by another party. Per Bronson, C. J.</p>

Trover for a quantity of whiskey, tried at the Montgomery circuit, in November, 1844, before Willard, C. Judge. A former trial of the cause had resulted in a nonsuit, which was set aside by the court. For a report of the case on the motion to set aside the nonsuit, see 6 Sill, 425.

P. The trustees of the village of Clintonville sued Keeting before a justice in March, 1845, and declared in debt, for several penalties of $15 each, for selling ardent spirits within the village in quantities less than five gallons at one time, contrary to an ordinance of the trustees of the village restraining the sale of ardent spirits by retail within the village.

P. Gilbert sued Cope before a justice, and declared upon an award in his favor for $25,28. He recovered, and the cause went to the C. P. by appeal, where the jury found a special verdict, stating the following facts: the parties made a parol submission of their accounts and demands to three arbitrators, naming them, without any agreement that two might make an award. The arbitrators all met, and, without being sworn, proceeded to hear the parties.

<p>Motion to set aside the report of a sole referee. The action was assumpsit upon a written agreement, dated August 1,1842, executed by the plaintiffs and the defendant and by several other parties, all proprietors of forwarding lines on the Erie and Oswego canals. It commenced by setting forth that “ the undersigned forwarders on the Erie and Oswego canals, [the proprietors of each line forming a party to this instrument,]for the purpose of establishing and maintaining fair and uniform rates of freight, and equalizing the business among themselves, and to avoid all unnecessary expense in doing the same, do hereby respectively agree to and with the other, and each with all the others,” “ to stock all the earnings of freight and passage of all the parties hereto during the remaining season of canal navigation of 1842, in manner hereinafter contained, and to divide the same once a month into equal shares or parts, of which the Troy and Oswego line shall have twenty-one shares; the Oswego line, twenty shares; the Oswego and Troy line, sixteen shares; the New-York, Utica and Oswego line, eight shares; and F. J. Littlejohn’s line, four shares.” If, goes on to provide “ for carrying the provisions of the agreement into full effect,” that each party should deposit with C. S. Douglass $35 per share to enforce due returns, and to liquidate the balances which might be found on the monthly settlements after-wards provided. Any party failing to make returns, afterwards provided for, was to forfeit his deposit to the other parties, and if all the parties should make returns, the deposit of each party was subject to be paid over to satisfy any deficiency of such party appearing upon the returns, and then he was to fill up the deposit anew to the original amount. D. K. Neal was appointed the agent of each party and of the association, and was to keep an office in Troy; and to him each of the parties was to make weekly returns of all the freight and passengers carried by such party, which freight was to “ be computed on such returns at such rates of transportation as this association had established for the time,” and the bills of lading and other documents were to be produced to enable the agent to test the accuracy of the returns. Once a month the agent was to take up all the returns, and to deduct from the gross amount of the freight and passage money of each party the tolls on the same and on the boats run, and also fifteen cents per mile on every mile run by each boat,, without reference to cargo, and at the rate of ten cents per mile on every mile each boat has run for every forty tons of. down freight transported, “ and the residue remaining to each party, after such deductions, shall be added together, and the sum total divided into equal shares or parts' and proportioned among the several parties hereto according to their relative number of shares as herein before stated.” Each party was to do his proportion of business according to his number of shares, “ if they can obtain the same at the prices adopted by this association, and keep in readiness a proportionate number of boats if necessary. The parties hereto shall at once establish rates of freight and passage to govern the association, which rates so established shall be signed by the parties in interest and be conclusive,” but this list of prices was to be changed whenever the parties should deem it expedient. Existing contracts by either of the parties for freighting for the season were to be returned and estimated at the rate specified in such contracts, and it was stipulated that nothing contained in the agreement should constitute the parties partners. The agreement was signed as follows : “Bronson & Crocker for the Troy and Oswego line; R. J. Vandewater [the defendant] for the Oswego line; James C. Woodward for the Oswego and Troy line ; H. C. Rosseter for the New-York, Utica and Oswego line; R. J. Vandewater [the defendant] for Littlejohn’s line.” There was a list of prices attached to the agreement, signed by the parties.</p> <p>The declaration averred that the plaintiffs (Hooker & Woodward) were partners transacting business under the name of the Oswego and Troy line ; and that Neal, the agent, on the 20th of December, 1842, made up the accounts from the respective returns of the parties, stating the same and making the deductions according to the terms of the agreement, and dividing the residue according to the proportions mentioned therein, and that thereby there was found due from the defendant to the plaintiffs the sum of $1425,32, the balance of which, after deducting what had been paid to the plaintiffs out of the money deposited, they claimed to recover against the defendant.</p> <p>Non-assumpsit, was pleaded, and on the trial before the referee the execution of the agreement was proved • together with the list of prices annexed, and it appeared that Woodward executed the papers on behalf of the plaintiffs who were partners. It was proved that the parties made their deposits with Douglass as provided by the agreement, and Neal, the agent, proved that they acted under the agreement and made their returns to him; and that from those returns he had made out a statement, which was produced, showing the defendant as the proprietor of the Oswego line and Littlejohn’s line deficient in the sum of $1566,82, of which $1425,32 belonged to the plaintiffs as the proprietors of the Oswego and Troy line, according to the provisions of the agreement, and the residue to other parties. It was shown that the plaintiffs had received $682,27 of .the deposit money, leaving a balance of $743,05, which, with the interest thereon, the referee reported in favor of the plaintiffs against the defendant.</p>

• Error to the Onondaga common pleas, to review a judgment of that court affirming one rendered by a justice of the peace, against Corning, the plaintiff in error. The action was assumpsit for a bedstead and stand, alleged to have been sold by the plaintiffs to the defendant.

<p>Action on the case for diverting the waters of the Mohawk river from the plaintiffs’ mill at Rome, tried at the Oneida circuit, in April, 1844, before Gridley, Civ. Judge. The water was diverted from the mill, and turned through the feeder of the Erie canal, at different times in the months of July, August and September, in the year 1843. Benjamin Enos, one of the defendants, was then acting canal commissioner on that section of the Erie canal, and the other defendants acted under his directions in turning the water. It was admitted that the water was diverted from the mill for the use of the Erie canal, and for that purpose only. The plaintiffs proved that the canal commissioners, in 1830, leased the surplus water of the canal at Utica, near the east end of the Rome level, to Maria Miller. Also, that in 1826 they leased the surplus water of the canal at the first lock, at the west end. of the Rome level, to Oliver Teall; and the same year they leased the surplus water on the Salina and Syracuse level, to be drawn from the Salina basin, to Aaron Burt. The plaintiffs also gave evidence that mills had been built, and the waters of the canal were used by Teall and Burt, in the summer and fall of 1843. It appeared that the water leased to Mrs. Miller at Utica, had been res tmed by the commissioners prior to the. time in question. The water was drawn around the first lock at the west end of the Rome level, used in Teall’s mill, and then passed again into the canal. At Salina, the water was used for Burt’s mill, the weigh lock, state pump, and the Oswego canal. It did not appear that any water was taken by either of the lessees which was not again returned to one of the state canals.</p> <p>The plaintiffs offered to prove that when the water was diverted, Enos, the canal commissioner, did not claim to act under the statute authorizing an appropriation of water for temporary use, and directing an appraisal therefor; but disclaimed so to act; and claimed the right to divert the water on the ground that it belonged to the state, and he had a right to take it without compensation. The judge rejected the evidence. The judge held, that there was no surplus water on the Rome level which could be resumed; that the waters at the west end of that level, which were used by the mills and then turned again into the canals, and were necessary for feeding the canals west of that level, were not such surplus waters as the commissioners were bound to resume before taking other waters for the temporary use of the canal; and that those whose waters had been taken, should apply to the appraisers for damages. The plaintiffs were nonsuited. They move for a new trial on a bill of exceptions.</p>

Declaration on a policy dated October 7, 1841, whereby the plaintiffs were insured, lost or not lost, at and from Canton to a port of discharge in the United States, “ upon the freight of all kinds of lawful goods and merchandize, laden or to be laden on board the good ship called the America, whereof-is master, &c. Beginning the adventure upon the said freight, from and immediately following the loading thereof on board of the said vessel at-as aforesaid ¡ and so shall…

<p>Error to the general sessions of Albany county. The defendant was indicted together with one Somerville for grand larceny in stealing sundry bank notes and gold coin, the property of one Henry Colby. The prisoner Johnson was tried separately, and it appeared by the testimony of Colby that he was decoyed by Johnson, on an idle pretence, to a place on the canal ■ north of the city of Albany where they met Somerville, when Colby was induced to take out his pocket book to lend some money to Johnson to enable him to make a pretended bet with. Somerville, upon which Johnson seized and took the pocket book from him and handed it to Somerville, who went off with it. A third associate came up at that time and engaged Colby’s attention until the defendants had got away. The witness testified that the contents of the pocket book were about $85, for the most part in bills of the Northern Bank of Hallowell, Maine, of denominations under $5, and two gold coins—of $10 and $5.</p> <p>A. G. Filkins, a broker living at Troy, testified that at a later hour of the day on which the money was taken, Somerville came to the witness’ office to exchange some money, and that the witness received from him about $40 in the bills of the Northern Bank of Hallowell, Maine, of similar denominations with those mentioned by the witness Colby, and a smaller sum in bills of other eastern banks, and gave him New-York bills in exchange. ' The prosecution having rested, the prisoner’s counsel requested the court to advise the jury “ that there must be some evidence given to show that there was such a bank as that mentioned by the witnesses, and that the bills were genuine, or the prisoner could only be convicted of stealing the gold coin, and then the verdict would be for petit larceny.” The court declined so to charge, but in their remarks to the jury stated, that “ as to proving the existence of the banks and the genuineness of the bills, if the jury believed the testimony of the witness Filkins, it was for them to say whether he, by changing the money in question had not supplied them with the necessary evidence of the genuineness of the bills on the Northern Bank of Hallowell. Mr. Filkins, (the court added,) by his acts in changing the money gave higher evidence than mere opinion; and if the jury believed that these bills were of value, then the amount would exceed $25, and the defendant could be convicted of grand larceny.” The prisoner’s counsel excepted. After the charge had been given, the prisoner’s counsel asked the court to instruct the jury that they could not infer the genuineness of the bills or the existence of the bank from the fact testified to by the witness Filkins, that he had changed the bills. The court declined to give that instruction, and the prisoner’s counsel again excepted. The jury found the prisoner guilty of grand larceny, and the court sentenced him to imprisonment in a state prison. Error was brought on a bill of exceptions.</p>

<p>Error to the Otsego common pleas, to review a judgment of that court, reversing, on certiorari, a judgment of a justice of the peace in favor of Lamoure, who was defendant in the justice’s court. The facts are sufficiently stated in the opinion of the court.</p>

Error, to the Madison common pleas. Palmer sued Conly and Johnson before a justice of the peace in debt for a forfeiture alleged to have been incurred by the defendants for a violation of 2 R. S. 503, § 17, in knowingly assisting the plaintiff’s tenant, Harding, to remove bis goods from the demised premises, leaving rent due thereon, for the purpose of avoiding the payment of the rent.

The defendants were indicted for larceny in stealing a certain receipt executed by one Joseph Shepard, acknowledging the payment of seven dollars by the defendant Loomis to Shepard, which the grand jurors say they cannot more particularly describe, it being in the possession of the defendant; but which is alleged to be the personal property of Shepard and of the value of seven dollars. The defendants pleaded not guilty.

<p>M. being possessed of a long term for years in certain premises, conveyed them to a trustee to receive the rents and profits, and apply them to the support of H. C., during her natural life, and after her death, he by the same instrument conveyed the premises to M. B. M., her heirs and assigns; held, that the trust ceased at the death of H. C., and that the residue of the term then vested in possession in M. B. M.</p> <p>Where real estate is by a valid trust devised to a trustee for a particular purpose, the legal estate is vested in him as long as the execution of the trust requires if. and no longer, and it then vests in the person' beneficially entitled to it</p> <p>Where a conveyance of lands was executed to a trustee before the revised statutes, but was unaccompanied with any power of management on the part of the trustee, and he after the enactment of the revised statutes brought ejectment against a stranger; held, that the legal title was in the person beneficially interested, and that the plaintiff could not recover.</p>

. Error to New-York superior court. The Triton Insurance Company sued McFarlan in the court below, and declared on a bond executed by the defendant to the plaintiffs on the 9th of November, 1838, in the penal sum of §7000, conditioned to pay §3500 in one year, with interest at six per cent, payable semi-annually on the first days of January and July. The defendant pleaded, 1. Non est factum; 2. Nul tiel corporation ; and 3.

Ejectment for a farm of 100 acres in Little Falls, Herkimer county, tried in that county in September, 1844, before Willard, Cir. Judge. James A. Sheiwood, of Little Falls, died seized of the premises in question in 1825, having previously, in that year, made his last will and testament, which has been proved and recorded as a will of real estate; by which will, in the first clause, he appointed his wife Alida, and his brother-in-law John Hayes, executors.

Ejectment, tried at the Rensselaer circuit, in April, 1844, before Parker, C. Judge. The action was brought to recover one and an half acres of land, in Schodack, which the plaintiff claimed in fee. The plaintiff was seized of the premises on and prior to the first day of April, 1815, and on that day he demised the same in fee to one Braddum Yale, his heirs and assigns.

<p>A judgment in a justice’s court is in the nature of a debt of record, and is as conclusive between the parties as a judgment of a court of record. Per Beardsley, J.</p> <p>One of several defendants, against whom a judgment had been rendered in a justice’s court, being about to appeal to the court of common pleas; the plaintiffs, in consideration that he would agree to abandon the appeal, agreed by a writing not under seal not to issue execution against, or take any other measure to collect the judgment from him, but to look to the other defendants therefor; held not a defence to an action of debt on the judgment;</p> <p>The writing could not operate as a release, because not under seal; nor as an accord and satisfaction, for the reason that it was merely executory.</p> <p>An accord and satisfaction by parol, or by writing not under seal, cannot be set up as a bar to an action of debt founded on a record, or to a judgment in the nature of a record. Per Beardsley, X</p> <p>Nor to a debt by specialty, where the debt arises upon the deed : but it may be interposed as a bar to damages founded upon the breach of a specialty. Per Beardsley, J.</p>

Lawrence and Westcott sued Mosher before a justice, and declared upon an instrument in writing by which the defendant agreed to assign to the plaintiffs a certain lease, and to procure the discharge of a mortgage which was a lien upon the demised premises. The declaration was in writing, and set out a copy of the instrument, adding the signatures, but without any statement, or any thing connected with the signatures to indicate that it was under seal.

P. Schermerhom sued Buell in the court below, and declared in trespass. One count was for cutting and carrying away trees; and one count was simply for taking and carrying away.

Motion to set aside the report of referees. The suit was brought to recover the amount of a check drawn in the year 1836, on a bank in Buffalo, by William. Forsyth, for $2000, payable to the order of JJenjamin Rathbun, and endorsed by him, and, (as alleged,) by the defendant. It was payable (n three months after date. Non-assumpsit was pleaded, and the principal question on the trial was whether the defendant’s endorsement was genuine, or was, as he contended, a forgery.

<p>The principle that the existence of a person, a personal relation, or a state of things, once established by proof, is presumed to continue the same until the contrary is shown, is applicable, within reasonable limits, to the character of a witness proved to have once sustained a bad reputation for truth and veracity.</p> <p>Therefore held that the character of a witness may be impeached by persons in whose neighborhood he had lived until four years prior to the trial, though he had then removed to another place fourteen miles from that neighborhood, where he had since resided, and the witnesses did not know the character which he bore at the latter place.</p>

The plaintiff claimed to recover the amount of two promissory notes for the payment of thirty dollars each, both dated January 7th, 1843.

P. Stevens sued Fellows and Newcomb before a justice, in June, 1845, and declared in- trespass for taking and selling his cows.

Ejectment for a house and lot in the village of Sandy Hill, Washington county, tried in that county before Willard, circuit judge, in June, 1844. The plaintiff claimed the property as a purchaser at sheriff’s sale on a judgment against George R. Barker. Barber formerly resided at Sandy Hill, and was cashier of the Washington and Warren Bank.

Trespass for thirteen pieces of elm timber, tried at the Otsego circuit in September, 1844, before Grid leal Cir. Judge. The plaintiff proved that the defendants took the timber out of nis possession—his workmen being engaged in framing it at the time—and drew it away.

Trespass for assaulting, beating, and wounding the plaintiff. Plea not guilty, with notice of son assault demesne, and that the assault was committed in the defence of the defendant’s personal property, namely, a pit of charcoal and a coal rake. The trial took place at the Greene circuit in May, 1344, before Parker, Cir.

Hogeboom was the plaintiff before the justice, and declared in debt upon a former judgment recovered by him against the defendants before another justice. Nul tiel record was pleaded; and on the trial the evidence to prove the judgment was a transcript of the docket of the justice who rendered it. The plaintiff was nonsuited by the justice, and the common pleas reversed the judgment, whereupon the defendants brought error here.

Slander, tried at the Columbia circuit, in September, 1844, before Parker, C. Judge.

The action was on a promissory note made by one Warren, payable to the order of Warnick, the defendant, ninety days after date, at the Farmers’ Bank of Amsterdam, and endorsed. by the defendant. The only question was upon the evidence of presentment to the maker for payment.

Trespass for an assault and battery upon Mary, the daughter and servant of the plaintiff, by which she became sick, &c. and the plaintiff lost and was deprived of her services, &c. Not guilty was pleaded, and the cause was tried at the Franklin circuit in February, 1847, before Willard, C. Judge.

P. Truax sued Vandenburgh before a justice; and the return states that the plaintiff declared in an action of trespass, that on the 16th or 18th of April, 1842, defendant did wilfully drive a black boy through his [plaintiff’s] store, knock a cock, or faucet, from his barrel, and destroy two gallons of port wine, to his damage of $50. Plea, the general issue.

Debt, for a penalty of $100. The declaration contained a single count, -which alleged that the defendant “heretofore, to wit, on, &c. at, The cause was tried in July, 1844, at the New-York circuit, before Kent, late C. Judge.

<p>The title of a purchaser from a redeeming creditor of land sold on execution, where such purchaser has received a sheriff’s deed, is not prejudiced on account of an omission to prove and file the assignment of the redeeming creditor’s right in the county clerk’s office, according to the act of 1835. (Stai. p. 210, §5 1, 2.) Per Jewett, J.</p> <p>One who claims title to land under a conveyance from another, is bound by recitals contained in a deed of the same premises under which such grantor held- his title. Per Jewett, J.</p> <p>Accordingly, where the defendant claimed title under W. D. W., who claimed to hold the premises by virtue of a conveyance from a receiver appointed by the court of chancery, which conveyance recited a decree of that court setting aside, as fraudulent, a conveyance executed by a former owner of the premises, the defendant cannot set up the conveyance, so declared fraudulent, as a valid title. Per Jewett, J.</p> <p>Ttie attorney of record for the plaintiff in a judgment, is not authorized, after the expiration of two years from the time it was rendered, to receive the amoun thereof from the defendant. Per Jewett, J.</p> <p>The Chautauque County Bank being prohibited by its charter from purchasing, holding, or conveying real estate, except in certain specified cases, and among others such lands “ as shall have been purchased at sales upon judgments, decrees, or mortgages obtained or made for debts due the bank;” held that the bank has no capacity, after the time for redeeming had expired, to purchase the interest of a judgment creditor, who by virtue of his own judgment had acquired the title of the purchaser of land sold under execution, though the bank had unsatisfied judgments against the debtor whose land had been sold.</p>

Trover for two hundred barrels of flour,- tried at the Albany circuit in October, 1844, before Parker, C. Judge.

Ejectment for two village lots in the village of Avon, tried at the Livingston circuit in October, 1844, before Whiting, Cir. Judge. On the 1st of October, 1839, the defendant conveyed the lots in question to the plaintiff by an absolute deed, with covenant of warranty.

<p>The lien of a common carrier is extinguished by the unqualified delivery of tho property to the consignee.</p> <p>But the lien may be retained after delivery by the agreement of the parties. Semble. Per Beardsley, X</p> <p>Or if the delivery be procured by the fraud of the consignee, as if he falsely and fraudulently promise to pay the freight when the goods are received, the lien continues and the carrier may bring replevin.</p> <p>Whether the lien is waived or not by a delivery does not depend upon the intention of the carrier, or his agent by whom the delivery is made, if it be not communicated to the consignee and agreed to by him.</p>

<p>A justice of the peace is authorized to amend the date and return of a summons after it has been served.</p> <p>And where a summons, issued on the third day of January, 1846, and made returnable on the tenth day of January instant, was by mistake dated January 3, 1845 and having been personally served on the day it was issued, the plaintiff obtain»" judgment without an appearance on the part of the defendant; held, that the defect, having been overlooked by the justice, should be disregarded by the common pleas and by this court.</p>

Buckley sued Leonard before a justice and declared for that the defendant kept a certain dog which he knew was used and accustomed to attack and bite mankind, and that on the 10th of August, 1845, the dog attacked and bit the plaintiff, by means of which he became lame, The general issue was pleaded, with notice that the defendant, when bitten, was trespassing upon the plaintiff’s premises.

Hugh B. Howard brought assumpsit in the court below against the City Fire Insurance Company on a policy of insurance against loss by fire. Non-assumpsit having been pleaded, the cause xvas tried in the court below in May, 1843. The policy, which was given in evidence, bore date April 17th, 1841; and by it the defendants insured the plaintiff to the amount of $9850, on merchandise, and $150 on store furniture in his store, No. 146 Pearl-street, for six months.

Slander, tried at the Monroe circuit in October, 1844, before Dayton, C. Judge. The declaration alleged that the defendant had charged the plaintiff with being a thief and with having stolen money. Pleas, 1. Not guilty; 2. That the defendant, on a day and at a place named, feloniously stole, took and carried away certain bank notes and money, which were specified, being, the property of the defendant.

<p>A witness will not be excluded on the ground of interest, unless it appear that he is certainly interested in the event of the suit.</p> <p>Therefore in replevin brought by the trustees, under an assignment for the payment of the debts of the assignor, against one who had taken a part of the assigned property, a preferred creditor is a competent witness for the plaintiffs, unless it be shown that his debt cannot be paid except the plaintiffs retain the property for which the suit is brought.</p>

Debt on a bastardy bond in the penalty of $500, conditioned that the defendant Daniel B. Moores, the father of the child, would indemnify the city of New-York, where the child had been bom, and every other county, &c. which might be put to any expense for the support of the child, or of its mother during i her confinement and recovery therefrom, against all such expenses.

Debt, tried before Kent, Cir. J., at the New-York circuit, in September, 1844.

The defendants were indicted in that court for cheating by false pretences.

<p>Demurrer to declaration. The action was debt on a criminal recognizance. The first count of the declaration alleged that on the 10th day of October, 1845, at the city of Albany, one James Murray was charged, on oath, before J. O. Cole, a police justice of that city, with forgery, in having at a day and place named, feloniously uttered and published as true certain counterfeit bank notes, knowing them to be counterfeit; that on the day and year aforesaid he was brought before said justice on said charge, and that the complainant and-his witnesses in support of the charge, were then and there examined upon oath before the said justice, in the presence of Murray; and that the justice then and there proceeded to examine Murray in regard to the alleged offence; from which examinations so laken by the justice it appeared that said" offence had been committed, and that there was probable cause to believe that Murray was guilty thereof; whereupon the justice • committed Murray to the jail of > the city and county of Albany, upon said charge. It then alleged that Murray being so in the custody of the sheriff of Albany, on said charge and commitment, he was on said 10th day of October, 1845, by virtue of a writ of habeas corpus duly issued and allowed, and directed to said sheriff, conveyed by said sheriff before William Parmelee, recorder of Albany, and of the degree of counsellor in the supreme court, and offered to give bail for his appearance at the next court of criminal jurisdiction to be holden in the said city, to answer to the charge aforesaid, and that the defendant then and there offered to become bail for said Murray; and that thereupon the defendant personally came before the recorder at, &c. on, &c. and then and there entered into a recognizance in writing, signed by him, by which he acknowledged himself to be indebted to the people of the state of New-York in the sum of §300, to be made, &c. if default should be made in the condition following; which was, that Murray should appear at the next court of criminal jurisdiction to be holden in and for the city of Albany, and then and there answer to the said charge against him for uttering and publishing as true, certain false, &c. bank notes, and obey the order and direction of the said court thereon, and not depart the court without leave, then the recognizance to be void; otherwise of force; which recognizance, so taken before the said recorder, (he having full power and authority, &c.) was afterwards, to wit, on, &c. duly filed of record by the clerk of the mayor’s court, at, &c.; said courl being the next court of criminal jurisdiction to have been hold-en next after the taking of said recognizance, said court having jurisdiction of the offence charged against said Murray; that at said court on, &c. at, &c. an indictment was found and filed of record, against said Murray for the offence with which he stood charged as aforesaid, and that said recognizance was also then and there duly filed of record in said court, as by the record of the said indictment and of the said recognizance and proceedings thereon still remaining in said court fully appears. Breach, that Murray being, at the same term of said court, called in open court, did not appear, but made default; whereupon an order was entered forfeiting said recognizance, and di recting the same to be prosecuted, &c. Second count, that Murray on, &c. being in the custody of the sheriff of the county of Albany, by virtue of the commitment of J. O. Cole, police justice, for the offence of forgery, was brought before W. Parmelee, then and there being recorder, &c. and then and there offered to give bail to answer for the offence; that the defendant then and there came before the recorder and offered to become bail, and then and there entered into a recognizance in writing (stating the recognizance, as in the first count;) that the defendant was accepted by the recorder as sufficient bail, and that he accepted said recognizance, and caused said Murray to be discharged from custody. The remaining averments are like the first count. Demurrer to each count and joinder in demurrer.</p>

Peters sued McKeon in the court below in covenant on the following written agreement: On the 16th of February, 1839, the defendant contracted to sell to the plaintiff his farm at Ross-ville, on Staten Island, containing 72 acres, with the farming utensils and stock on the premises, and to execute, on or before the first of May then next, at the office of A. L. Jordan, in the city of New-York, to the satisfaction of said Jordan, a good and sufficient warranty deed with full…

Demurrer to declaration. The action was debt on a bond executed by the defendant Guild as principal, and the other defendants as sureties, in the penalty of $8000, conditioned that Guild, as the executor of the last will and testament of N. Guild, deceased, should faithfully execute the trust reposed in him as such executor, and should also obey all orders of the surrogate of the county of Saratoga, touching the administration of said estate.

Turner sued Nellis before a justice by warrant. The defendant pleaded in abatement, for the purpose of showing that it was not a case for a warrant, and made affidavit to the truth of the plea. The plaintiff demurred to the plea, and the defendant joined in demurrer. The return of the justice then proceeds as follows: “ The issue being so joined by the parties, the court decided that the plea was sufficient, and discharged the defendant from arrest.

After the reversal of the former judgment of the superior cour/ in this cause, (see 4 Hill, 184,) the issue was again tried in that court, and there was a verdict and judgment for the defendant ; to review which the present writ of error was brought by the plaintiff. The evidence upon the second trial presented substantially the same case which had been proved on the former occasion, an abstract of which is contained in the report referred to.

Assumpsit on an undertaking signed by the defendant and addressed to the plaintiff in the following words: “ Syracuse, May 29th, 1841. To Barent P. Staats, Esq. I hereby obligate myself to hold you harmless for any endorsement you may make for, or have made for, the late firm of Peck, Howlett & Foster, not exceeding three thousand dollars. Parley Howlett.” The cause was tried before a referee.

Dutchess C. P. Wilber sued Woolley before a justice by summons, claiming damages to $100. He declared in trespass for killing his dog. There were two counts, each of which concluded “to the plaintiff’s damage of one hundred dollars.” The defendant pleaded the general issue, and the cause was adjourned by consent of parties, after the plaintiff had demanded a trial by jury. On the adjourned day, the parties appeared, a venire was returned, and a jury sworn.

P. The superintendents sued Winfield and Middaugh before a justice to recover a penalty of $50, for bringing Leah Giggey, a poor person, from the state of Pennsylvania into the town of Deerparlc, Orange county, in this state, and leaving her there, with intent to make the town of Deerparlc chargeable with the support of the pauper, contrary to the Statute of 1831, p. 346, § 1. The cause went to the O. P. by appeal. On the trial there, the plaintiffs proved their case.

<p>A discharge under the late bankrupt act, is not a bar to the recovery of rent which accrued after presenting the petition in bankruptcy, upon a lease executed by the bankrupt, as lessee, before that time</p> <p>Therefore where the plaintiff, prior to May 1, 1849, demised a house to the defendant for one year from that day, for a certain rent payable quarterly, and the defendant occupied during the term, but on the 19th day of December, 1849, petitioned to be declared a bankrupt, and obtained his certificate in August, 1843; held that the discharge was not a bar to an action on the lease for the last quarter’s rent falling due May 1, 1843.</p>

The only material error relied on was, that the justice had refused the defendant leave to plead on the adjourned day. The summons was returnable, and was returned served on the 30th day of August, 1844, on which day the plaintiff only appeared; and he asked for and obtained an adjournment to the 3d of September, then next.

Randall was the plaintiff and sought to recover the amount of a promissory note for $22,18, made by the defendant, and dated Buffalo, August 28, 1837, payable to Randall & Ramsdell or order, ninety days after date. The plaintiff proved the making of the note and its endorsement by the payees. The defence was the statute of limitations, of which notice had been given under the plea of non-assumpsit.

Marshall brought replevin against Guión and Yultee in the court below for two mahogany sofas, alleged to have been taken from the ship England, lying at a wharf in the city of New-York, on the 16th day of June, 1843.

<p>Error to the Albany common pleas. Taylor sued Heath by attachment on the 7lh December. 1842, returnable the 9tb of said December. The constable stated in his return what property he had attached, but that he had not served the, attachment personally on the defendant. The plaintiff appeared on the 9 th, but the defendant did not, and a short summons was issued returnable the 12th of December, to which the return was, that the defendant, after a due search, could not be found. The plaintiff appeared, but the defendant did not. Declaration on a note and an account. Witness sworn, «fee. Judgment for the plaintiff. |</p> <p>On certiorari the common pleas reversed the judgment, because, as is said, the justice had no jurisdiction of the person of the defendant.</p>