Volume 4 — Hill & Denio's New York Reports

The case turned mainly upon the sufficiency of the indictment, which charged the following facts, viz : That Williams, heretofore &c., at &c., did falsely pretend to Van Guilder that one Gray was about to sue him, the said Van Guilder, on a bond which he, the said Gray, then held and owned against Van Guilder, and that the said Gray was also about to foreclose a certain mortgage which he then held and owned, and which was a lien upon a farm of Van Guilder, situate &c., and…

<p>Trover for- six cows, tried at the Oneida circuit, in April, 1842, before Gridley, C. Judge. The case was this : On a settlement of accounts between the plaintiff and the defendant Williams, in April, 1840, a balance was found due from the latter, who thereupon “ turned out” the cows in question to apply on the account. Roberts, the other defendant, was present and acted as interpreter for Williams, his brother-in-law, who is a Welchman. After the cows were so turned out, the plaintiff hired them to th.e defendants for one year at |2,50 per head. They were left with Williams for his use, and never came to the actual possession of Roberts, he living some four or five miles from Williams. After the expiration of the year the cows were demanded of Williams, and he refused to give them up. On a like demand being made of Roberts at his residence, he replied that “ he would have nothing to do with the matter,” and refused to go and see Williams on the subject. The defendants proved that, in October, 1840, four of the cows in question were sold to one Jones, in virtue of two executions upon judgments rendered by a justice of the peace against Williams in favor of Billings and Owens; but it turned out that both judgments were void, having been rendered on confession for more than $50 each, without the affidavit required by 2 R. S. 245, § 114, sub. 3. All the cows in question, except one which had been killed by a son of the defendant Williams, were on the premises of the latter when the demand was made. The defendants7 counsel insisted that no sufficient evidence of a conversion by Roberts had been given; but the circuit judge ruled otherwise, and directed the jury to render a verdict forthe plaintiff against both defendants for the value of the five cows. The defendants’ counsel excepted; and the jury having found a verdict in accordance with the judge’s directions, the defendants now moved for a new trial on a bill of exceptions.</p>

v3. Taber, for the defendant, moved for judgment as in case of nonsuit on an affidavit in which the suit was entitled, A. B. impleaded with C. D. at the suit of the plaintiff. The suit was originally commenced against the two defendants, the one being maker and the other endorser of a promissory note ; but the suit had been severed and judgment perfected against one of the defendants before the other gave notice of this motion.

<p>The assessors of the town of Lockport, in the county of Niagara, assessed the Canal Bank of Lockport, a corporation under the general banking law, $140,000 for its personal estate. They also assessed the Lockport Bank and Trust Company', another corporation under the general banking law,. $4800 for its real estate, and $102,000 for personal estate. The assessors of the several towns in the county through which the road of the Lockport and Miagara Palls Rail-Road Company passes, assessed the company several sums of money .for its real estate, which, in the aggregate, amounted to the sum of $141,200. At the annual meeting of the board of supervisors in October last, the officers of these companies applied to the board to have the names of the corporations stricken from the assessment rolls, and they presented affidavits, which they were afterwards permitted to amend by adding further affidavits. The cashier of the Canal Bank of Lockport made affidavit “ that the said bank has suffered a loss of its capital from the depreciation of state stock and other causes, to an amount exceeding the whole income or profits of the bank for the present year.” In the supplemental affidavit afterwards produced the cashier swore “ that the said bank is not, and has not been for the year last past, in the receipt of any profits or income over and above the ordinary expenses and losses of the said bank during said year.” Affidavits in nearly the same words were submitted on behalf of the other bank.</p> <p>The first affidavit submitted on behalf of the rail-road company stated, “ that the said company is not in the receipt of any profits or income ; all the receipts of the company for the last year have been absorbed in the necessary expenses, repairs, and improvements.” The second affidavit on behalf of the company stated “ that said company has not, during the year last past, and is not now, in the receipt of any profits or income whatever over and above the ordinary expenses and losses for said year.” The person making this affidavit swore that the word “ improvements” in the first affidavit meant nothing more than ordinary repairs.</p> <p>On receiving these affidavits the board of supervisors struck the names of all three of the corporations from the assessment rolls.</p> <p>The relators are taxable inhabitants of the town of Lockport, and, as such, are actually assessed the present year for real and personal estate. They served papers upon the board and gave notice of this motion for a mandamus to compel the board to restore the names of these corporations to the assessment rolls. The board thereupon passed a resolution instructing their counsel to waive all objection to the motion as to the form of the remedy, and all other objections which might prevent a decision of the question on its merits.</p>

moved for leave to draw up a statement of facts from the special report made by the referees, and to have such statement settled and inserted in the judgment record, to the end that the defendant might bring a writ of error.

<p>On the 16th of April last, an attachment was issued against Faulkner as an absconding or concealed debtor by the circuit judge of the first circuit. On the application of Faulkner, llleging that he was a resident of this state, and was not an absconding or concealed debtor, the matter was referred to the New-York court of C. P. pursuant to 2 R. S. 9, 43—50. On</p> <p>the 3d of September last, the C. P. decided against the debtor, and held that the allegations in his petition were - not proved. On the 14th of September, the debtor procured the allowance of a writ of certiorari by one of the justices of this court to re move the decision of the court of C. P. into this court for examination, pursuant to 2 R. S. 602, art. 2. The certiorari was filed in the court of C. P. on the 17th of September, together with a bond executed by the debtor and two sureties, with such penalty and condition as is prescribed by the 74th section of that article, and on that day each of the sureties made affidavit that he was a householder &c., and worth double the penalty of the bond. The bond was approved by the recorder of New-York ) but no copy of the affidavit was served, nor was notice of the names, additions, or places of residence of the bail ever given to the attorney for the attaching creditors. The attorney for the creditors on enquiring into the matter ascertained, as he says, that the sureties were “ mere men of strawand on the 23d of September he entered an exception to the sureties, and gave notice thereof to the attorney for the debtor. After waiting more than ten days, the attorney for the creditors gave notice t on the 6th of October—the sureties not having justified—that-/ he should apply to the circuit judge for the appointment of " trustees; and on the 13th of Octoberthe. application was made, pursuant to the notice, and trustees were appointed. On the 28th of October, the circuit judge reported his proceedings upon the attachment to this court pursuant to the statute.</p> <p>now moved that the appoint ment of trustees be vacated and set aside for irregularity, and that an attachment be issued against James Smith, the attorney for the attaching creditors, for proceeding in the matter after the filing of the certiorari and bond in the C. P., which he insisted suspended all proceedings on the warrant until the final decision of this court should be made. (2 R. S. 604, § 74.)</p> <p>insisted that the certiorari did not operate as a stay of proceedings, because no notice of the sureties was given, and because they did not justify when an exception was taken, and were “ mere men of straw.” On papers served for that purpose,</p> <p>Rhoades now moved for an order upon Mr. Judah, the attorney for the debtor, to unite with Mr. Smith, the attorney for the creditors, in drawing a check in favor of the trustees upon the Bank of New-York for certain moneys which, in the course of the proceedings, had been deposited in that bank to the joint credit of the two attorneys to await the event of. the proceédings.</p>

moved to set aside the capias and subsequent proceedings, on the ground that the capiasy which was returnable at the last October term, was made returnable ' at Albany instead of Rochester.

<p>Assumpsit upon a promissory note, as follows: “ $600. Hudson, Sept. 17, 1841. Six months after date, for value rec’d, we jointly and severally promise to pay Ozias Miller or bearer six hundred dollars, with interest. (Signed) Benj. Munger. J. M’Cagg, as surety.” The defendants appeared and pleaded by different attorneys. M’Cagg gave notice of the defence of usury, and verified the truth of his plea, He now made affidavit that his co-defendant Munger and the plaintiff would both be material and necessary witnesses for him on the trial. On this,</p> <p>H. Hogeboom, for the defendant M’Cagg, now moved for ah order that he be allowed to examine his co-defendant Hunger and the plaintiff as witnesses for him on the trial. He cited Bank of Genesee v. Field, (19 Wend. 643,) also stat. 1841, p. 272, eh. 282, amending the act of 1832, relating to suits against several parties to a promissory note or bill'of exchange</p>

moved for judgment as in case of nonsuit, for not trying at the Albany circuit pursuant to notice. When the cause was reached on the calendar the defendant was ready for trial, but for the accommodation of the plaintiff, who was not ready, consented to have the cause set down for a subsequent day. When that day arrived the defendant’s counsel again consented to postpone to a subsequent day for the accommodation of the plaintiff, whose witnesses had not arrived.

On serving an attachment against the defendants, who are a foreign corporation, the sheriff of the county of Chautauque called on Abner Hazletine, Esq. an attorney of this court, delivered him a copy of the writ, and required from him a certificate in relation to certain choses in action which were alleged to be in his hands, and to be the property of the bank.

Pkiob to 1831, Richard R. Lansing, who was an attorney at law, resided at Utica where he kept a land-office, and acted as the agent of several land-owners, and among others he acted in such land-agency for the executors of Simon Remsen, and took a bond and mortgage for them from' one Anthony Bradt in the year 1827, for securing the payment of $2400.

<p>Consolidation. These two suits were commenced, one on the first, and the other on the second day of September last. Both actions were assumpsit, and it appeared from the bills of particulars of "the plaintiff’s demands that one action was brought for money had and received by the defendant to the plaintiff’s use in‘the year 1837, and the other action was brought upon a written undertaking of the defendant to pay th.e plaintiff $1000 for negotiating the sale of a bond and mortgage in the year 1838. The defendant swore to a defence on • the merits in both suits, but did not state the nature of the defence in either case.</p>

Bill of particulars. The declaration contained the common counts in assumpsit. The defendant obtained and served a judge’s order that the plaintiffs deliver a bill of the particulars of their demand on or before the 7th day of October, or that they show cause See. ISfo. cause being shown, the order was jnade absolute that the plaintiffs deliver a bill by the 12th of October.

This cause was referred in April, 1841. In November of that year the defendant served notice, pursuant to rule 44, requiring the plaintiff to notice the cause for a hearing within twenty days, or elect to discontinue and pay costs. The plaintiff having neglected to proceed, the defendant, in December following, entered a rule for, and perfected judgment as in case of nonsuit, pursuant to the aforesaid rule.

moved for a retaxá'tibñ of costs. The action was noticed for trial at the April ’circuit. The circuit judge did not attend, and the circuit was adjourned without day pursuant to 2 R. S. 203) § 19—2Í. At a subsequent circuit the cause was tried, and the plaintiff had a verdict; He taxed attorney’s fee $3, and counsel fee $5, for attending prepared to try the cause at the circuit which fell through.

read affidavits tending to show that the demurrer was frivolous, and put in merely for delay. He cited Bank of Buffalo v. Lowry, (22 Wend. 630 ;) Anon. (id. 619.)

now moved for costs against the plaintiffs, on the ground that they did not necessarily sue in-their representative character. (The People v. Judges of Albany, 9 Wend. 486, and cases there cited.)

Motion to be discharged from arrest on the ground of privilege. The defendant swore that he resided at New Rochelle, in the county of Westchester, and was a counsellor of the court of chancery.

<p>Where, in an affidavit to change venue, the statement of merits was thus—“ this deponent is advised by his said counsel that said defendants have a good and substantial defence &c., which advice this deponent believes to be trueHeld, insufficient.</p>

On Friday of the second week of term the defendant was brought Up by attachment for not returning afi.fa. . The writ was delivered' to the defendant’s deputy in the month of November, 1835. It was in favor of the relators and against Newell & Purmort, of Essex county; and the plaintiffs communicated with the deputy respecting its execution. It was returnable in January term, 1836.

<p>A provision in a life^policy that it is to be deemed void in case the assured shall “ die by his own hand,” imports a death by suicide ; i. e. an act of criminal self-destruction.</p> <p>Accordingly, in an action on such policy the underwriters will be liable though it appear that the assured drowned himself, provided the act was done in a fit of insanity.</p>

<p>Ejectment, for a triangular lot of land in the city of Brooklyn, tried before Kent, C. Judge,, at the Kings circuit, in September, 1841. Jacob M. & John M. Hicks, being seized in fee of the premises in question, conveyed the same in fee to John Sharpe in September, 1818. In February, 1820, John Sharpe conveyed the premises in fee to his mother, Mary Sharpe. He had previously quit claimed the premises, with two other lots—one on the opposite corner of the same streets— to his said mother. Mary Sharpe died in 1823, leaving the said John Sharpe her only surviving child and heir at law, and having by her last will devised all her real estate to the children of her son John Sharpe. The plaintiffs are those children. Their father died in 1825. On this proof the plaintiffs rested.</p> <p>The defendant set up a title under an assessment and sale for making a well and pump in Willo-w-street. He gave in evidence a petition as follows : “ To the trustees of the village of Brooklyn. The petition of the subscribers, owners and occupants of property on Willow-street, respectfully sheweth, that there is no public well in their immediate vicinity.” The petitioners then go on to state the necessity for a well and pump in Willow-street, between Clark and Pierpont streets, and pray that immediate measures may be taken to construct the same. The petition is dated 5th of October, 1825, and it purports-to have been signed by seven individuals, of whom the defendant was one. The petition was received by the trustees on the 14th of October, 1825, and referred to the well and pump committee. On the 28th of the same month the trustees resolved, that the prayer of the petitioners “ he and the same is hereby granted, and that the well and pump committee be authorized to contract for having the same done.” On the same day they passed a resolution “ that the assessors he directed to make an assessment for digging the well in Willow-street, between Clark and Pierpont streets.” The defendant also gave in evidence a document as follows :</p> <p>“ To Jeremiah Wells, William A. Sale and Benjamin Meeker, assessors of the village of Brooklyn, in the county of Kings. You are hereby directed to assess the sum of five hundred and ninety-nine dollars and seventy-five cents to pay for the well and pump No. 29, situate in Willow-street, between Clark-street and Love-lane, in manner following, viz.: as a permanent district, all the property fronting on Willow-street between Clark-street and Love-lane, and as being out of the district, for the benefit which the property will at present derive from said well, the three new brick buildings fronting on Hicks-street and the framed house of Mrs. Johnson, Pierpontstreet, in proportion as nearly as may be to the advantage which the respective owners and occupants of said property shall be deemed to acquire from said well and pump. Dated December 19,1825. By order of the board of trustees. (Signed) John Doughty, president pro tern. John Dikeman, clerk.”</p> <p>29.</p> <p>Lessees • '</p> <p>Samuel Jackson, George Hicks, - - Robert C. Cornell, - Henry Beekman, Henry Waring, 5,20 Mr. Codwise, 5,20 T. I. Chew, - - -</p> <p>Spear, - - - - -</p> <p>Sharp, - - - - -</p> <p>Decost, - - - -</p> <p>G. C. Langdon, - - Rogers, - - - -</p> <p>Fitch, - - - - -</p> <p>I. & I. M. Hicks, Benjamin Meeker,) Assegsors » Jeremiah Wells^ )</p> <p>pd. 112 32 pd. 50 pd. 57 08 41 60 pd. 10 40 paid 57 24 pd. 43 68 19 76 pd. 41 60 pd. 37 44 pd. 45 76 . pd. 35 36 pd. 26</p> <p>On the 23d of December, 1825, a resolution was passed by the trustees as follows : u The assessors having returned an assessment for building a well and pump between Clark-street and Love-lane; resolved, that the same is hereby ratified and confirmed, and that the collector be authorized to collect the same.” On the same day a warrant issued to the collector to collect the assessments. On the 3d of February, 1826, the trustees resolved, “ that' the collector be directed to collect the tax of well and pump district No.-, for the well in Willow-street $” and on that day a second warrant issued to the collector to collect the assessments.</p> <p>On the 10th of March, 1826, the trustees resolved “ that the assessors be directed to aid the collector in describing the several pieces of lands, &c. on which the general assessment remains unpaid, in order that he may make a return of the same according to law, so that the same may be sold &c.” It was proved—the affidavit being lost—that about the 23d of July, 1827, the collector made the necessary affidavit that several assessments for different improvements remained unpaid, and among others, the assessment in question—“ Sharp, 19,76.” On the same day the trustees passed a resolution for the sale of the lands. The resolution recited that the collector had made affidavit that 11 the following assessments” remained unpaid. Then followed a long list of assessments for various improvements, and among the number—“ From Mrs. Sharpe on property in Willow-street, for making a well and pump in Willow-street, 19,76.” It was further recited, that some of the persons assessed, viz. Patrick Coughran, Charles Mahon, Mrs. Sharpe, and William Jackson, cannot upon diligent enquiry be found in said village.” It was then resolved that the attorney of the board be directed to advertise for sale pursuant to law,11 the several pieces of land whereon the said assessments have been laid as aforesaid, excepting &c., and to sell the same for payment of the said assessments with interest, costs and charges.”</p> <p>The attorney of the board gave a notice of sale which was pub-c lished in a newspaper at Brooklyn for three months, as follows : “ Whereas there is now due and unpaid from the several persons hereinafter named the several sums of money hereinafter mentioned for taxes and assessments assessed upon property owned or occupied by them respectively in the village of Brooklyn for the several objects of benefit or improvement herein specified, to wit, [among others] No. 8, for making a well and pump in Willow-street—From Mrs. Sharp, assessed on land in Willow-sireel, near Clark-street, containing on said Willow-street thirty-five feet, $19,76. Therefore notice is hereby given to the several owners or occupants,” to pay the several amounts, together with interest, costs and charges, on or before the 8th day of November, 1827, and that in default of payment the land would be sold on that day for the lowest term of years for which any person would take the same and pay the charges. On the 8th of November, the lot in question was sold to the defendant for a term of twenty years, and he paid the charges, amounting to $32,86. On the same day the corporation executed to the defendant a declaration of the sale, in which the lot was truly described as being in the form of a triangle, bounding on Willow-street thirty-eight feet, on Clark-street one hundred and thirteen feet, and on lands owned by Henry Waring. The plaintiffs also owned another lot on the opposite corner, bounded on two sides by Willow and Clark streets, and being within the assessment district. They also owned a third lot near Clark-street, but not fronting on Willow-street.</p> <p>On. this state of facts the judge charged the jury that the plaintiffs were entitled to recover, and the defendant excepted. Verdict for the plaintiffs. The defendant now moved for a new trial on a bill of exceptions.</p>

<p>Ejectment, tried before Kent, C. Judge, at the Kings circuit, in September, 1841. The action was brought to recover an undivided seventh part of a lot of land in the village of Williamshurgh, Kings county. The plaintiff showed a title in fee to the share which she claimed as one of the seven children and heirs at law of John Sharpe, who died seized in 1825.</p> <p>The defence rested on an assessment and sale of the land for the expenses of opening, pitching and regulating North Third-street in the village of Williamshurgh. Lands were taken for the street, and the assessment was made for covering this and other expenses. On the 3d of November, 1827, a petition was presented to the trustees signed by fourteen persons, who described themsewes as “ inhabitants in and about North Third-street.” They represented in the petition, that the street was unregulated, and concluded as follows : “ Your petitioners would therefore suggest the propriety of having the said street opened and regulated immediately, and your petitioners in duty bound will ever pray.” On the 3d of December following, the ' trustees recited this as a petition that the street be “ opened, pitched and regulated,” and resolved that “ the prayer of the petitioners be granted,” unless cause be shown &c. On the 7th of January, 1828, no cause being shown, it was unqualifiedly resolved that the prayer of the petitioners be granted.</p> <p>On the 3d of March, 1828, the trustees resolved “that a committee of two be appointed to take the necessary steps for. opening North "Third-street according to the prayer of the petition ; and that the said committee havé power, and it shall be their duty to do all that is preliminarily required to be done by j the trustees in and by the 24th section of the act of incorpora- ’ tion, and report their proceedings to the board;” and thereupon a committee of two was appointed. Under date of March 12th, the minutes of the board contained the following entry : “ The committee appointed at a former meeting to take the necessary steps for opening North Third-street reported, that they had called on the proprietors of land on North Third-street, and endeavored to treat with them ; that they could not find some, and that difficulty occurred in making arrangements with others. Whereupon, on motion, it was resolved that a jury be called by'the president as the law directs, and that notice be put upon the lands of all unknown owners.”</p> <p>Lands were taken for the street, and on the 8th of April, 1828, two justices and a jury appraised the land and damages on the street. In the appraisal, no owners or occupants, and no lots or quantity of land were mentioned. The jury say, they “ estimate the value of the land on the first block of 420 feet, including First-street from the river on North Third-street on each side, at three dollars per foot running measure.” And so of other blocks, though at different prices.</p> <p>On the 4th of June following, the assessment to. pay expenses was made. In this, no lots were mentioned, but the assessors proceeded by blocks. Against some of the blocks they put down three, four or more names, or “ unknown owners.”</p> <p>Against each name or unknown owner, they put down in a column headed “No. of feet,” some particular number—the lowest was 25,.and the highest 429. In a second column they put down the amount assessed, under .the head of “ Whole amount of assessment.” Next was a column with the head of “ Land valued,” and fourth, a column headed “ Balance to be collected.” The whole number of persons named was thirty-eight, and there were six cases of “ unknown owners.” The plaintiff was not mentioned in the assessment. Against every assessment there was an allowance for land taken, but always less than the assessment.</p> <p>Prior to this time, and as early as 1814, the village had been laid out into lots, and a map made of the same. One of the assessors testified that they had no map to make the assess- „ ment by; that he took a tape-line to measure with, and enquired for owners and took their names, and made measurements running measure ; that there was a map, but it was never submitted to the assessors. The clerk of the board testified that this assessment list was in the usual form, with this difference, that here the property is assessed in llocks, and in other cases it is assessed by lots, which are specified in the assessment.</p> <p>On the 18th of Jun.e, 1828, a warrant issued to collect the assessments ; and, under date of 27th of October following, the corporation minutes have an entry as follows: “Mr. Bush, the collector, having made and filed with the board his affidavit as to the non-collection of assessments to unknown owners of property in North Third-street, it was on motion resolved, that such property be advertised to be sold according to law.” No affidavit was produced, nor was its absence accounted for. Notice that a certain piece of land would be sold for the assessment on the 10th day of December, 1829, was published for three months. The piece of land described in the notice was 429 feet long on the street, and extended back to the centre of the block. No owner or “ unknown owner” was mentioned in the advertisement, nor did it state the amount of the assessment. On the day appointed for the sale, a term of 49 -years in this piece of land was sold to Lemuel Richardson, under whom the defendant claims, and a conveyance was executed to the purchaser. The conveyance states the whole parcel to have been sold, “ excepting from the above parcel of land, lots No. 81, 83, 89, 91, 93, 97, 99, 101 and 103, upon which the assessment has been paid.”</p> <p>In the assessment, the parcel of land of 429 feet front was put down to <c unknown owners,” and the balance of assessment to be collected was $79,83. The conveyance stated the. assessment on the premises sold, at $27,30.</p> <p>The judge instructed the jury that the plaintiff was entitled to recover, and the defendant excepted. Verdict for the plaintiff. The defendant now moved for a new trial on a bill of exceptions.</p>

<p>Trover for a quantity of wheat, tried at the Cayuga circuit in March, 1842, before Moseley, C. Judge. The plaintiff gave in evidence several receipts signed by the defendants as partners, all of which were in the following form, except as to dates and amounts :</p> <p>“ Genoa, Sept. 22d, 1841. Reed, of Ives Goodyear 40 bushels wheat.</p> <p>In store. D. Ogden & Co.”"</p> <p>It appeared that the defendants were engaged in the business of buying and shipping wheat to the eastern market; and the question was, whether the wheat. in controversy was delivered by way of bailment or sale. The judge held the receipt not conclusive that the delivery was by way of bailment; whereupon the parties went into evidence to explain, and even contradict its meaning. The explanatory evidence was, that a receipt in such a form customarily meant a sale. The contradictory evidence was, the language and conduct of the plaintiff implying that a sale was intended. Among other things it appeared that the plaintiff aided in putting the wheat into a common bin where there were several thousands of bushels of wheat belonging to others. The judge left the explanatory and contradictory facts to the jury, who found in favor of the plaintiff. The defendants now moved for a new trial on a case.</p>

<p>A memorandum acknowledging the receipt of a quantity of grain “ on freight,” imports a bailment and not a sale.</p> <p>But the memorandum may he shown to mean a sale by evidence of usage among dealers in grain. Per Nelson, Ch. J.</p> <p>Such evidence, however, must be so full and explicit as to leave no doubt of the existence, extent and meaning of the usage, and that the parties contracted in reference to it. Per Nelson, Ch. J.</p> <p>in general, where evidence of usage is given to control the construction of a written instrument, the jury are to determine its effect.</p>

<p>Trover for a horse, tried at the Monroe circuit, in April, 1842, before Dayton, C. Judge. The three defendants were trustees of school district No. 3 in Clarkson. At the annual meeting of the taxable inhabitants of the district on the 7th of October, 1839, a tax of $300 was voted to build a new school house. On the 1st of November following, the trustees prepared the proper assessment or tax list, in which the plaintiff’s tax -was fixed at $60,19 ; and on the 21st day of that month the trustees made out their warrant in the usual form for collecting the tax. At a district meeting, held on the 25th day of the same month, a vote was passed repealing the vote for a tax which had been passed on the 7th of October. On the 5th of December following another district meeting was held, at which a vote was passed repealing the vote of the 25th of November Avhich had repealed the vote for a tax. And thereupon the trustees, on the 23d day of December, renewed the warrant Avhich had previously been made out,-and delivered it with the tax list annexed to the collector, who, by virtue of the warrant, took and sold the plaintiff’s horse to satisfy his tax; and for that taking this action was brought. The judge decided that, although he was of opinion the vote of the 5th of December repealing the vote of the 25th of November restored the original vote to raise $300 passed at the annual meeting, yet that it was so restored only as a tax of that amount voted for the first time on the 5th of December, and that all</p> <p>the proceedings had under the vote at the annual meeting were void. That the trustees were bound after the vote of the 5th of December to go on and make a new assessment of the tax, and proceed in all respects as though that was the first vote which had been passed to raise money ; and not having done so, the warrant was void and formed no justification to the defendants. The defendants excepted, and the jury gave their verdict for the plaintiff. The defendants now moved for a new trial on a bill of exceptions.</p>

' The commencement of the declaration in the court below was as follows : “ City and county of New-York, ss.

<p>Ejectment, tried at the Greene circuit, in 1840, before Cushman, C. Judge. The plaintiffs showed title to an undivided sixth part of lot No. 43, in great lot No. 20, of the Harden!) erg patent, and proved that the defendant occupied and claimed possession of the whole of lot No. 5—one of the subdivisions of lot No. 43. It appeared, however, that the defendant held under a lease executed by George Clark to Jacob M’Gennis, dated January 23d, 1826, purporting to demise four equal undivided fifth parts of said lot No. 5, and that Clark had possessed lot No. 43, by his tenants, for many years. But whether Clark claimed title to the whole of lot No. 43, or only to an undivided portion ; and, if the latter, whether he claimed as tenant in common with the plaintiffs, or otherwise, did not appear. The plaintiffs insisted that they were entitled to recover one sixth part of lot No. 5 ; but the circuit judge held otherwise, and directed a nonsuit, on the ground that the defendant’s possession was, prima facie, that of a tenant in common with the plaintiffs, and no ouster or adverse holding had been proved. The plaintiffs excepted, and now moved for a new trial on a bill of exceptions.</p>

<p>If a person covenant for the results or consequences of a suit between others, the decree or judgment in such suit will be evidence against him, though he was not a party.</p> <p>Accordingly, where one assigned a mortgage, covenanting that it should produce and yield a given sum over and above the costs of foreclosing, and that if it did not, he would pay the deficiency: held, that the assignee having subsequently foreclosed the mortgage in chancery and sold under the decree, without making the assignor a party, these proceedings were evidence against the latter, in an action on the covenant, to show the amount of the deficiency.</p> <p>Held further, that the assignor was estopped by the decree from questioning the amount found due upon the mortgage, no fraud being alleged.</p> <p>The case of Douglass v. Howland, (24 Wend. 35,) commented on and explained.</p> <p>If a witness who has been duly subpoenaed, either neglect to attend, or leave court after the trial has commenced, it is in tire discretion of the judge whether he will suspend the trial until the witness can be brought in.</p> <p>The decision of a judge upon a matter resting in his discretion cannot be reviewed on bill of exceptions.</p> <p>Where a party excepts to a decision of this character, the judge should strike the exception from the bill before affixing his seal to it. Per Bronson, J.</p> <p>The only mode of procuring the attendance of a plaintiff for the purpose of examining him pursuant to the usury law of 1837, (Sess. L. of 37, p. 487, § 2,) is by serving him with a subpoena in due season, and paying or tendering him the fees of a witness. He is not bound to regard a mere notice to attend.</p> <p>After judgment has been perfected on a verdict rendered at the circuit, it is too late to move for a new trial on the mere ground of surprise.</p> <p>In general, a motion for a new trial on the ground of surprise will be heard only at the special term; and this, though a case or bill of exceptions have been made.</p> <p>If such motion be made where there is also a case or bill of exceptions, the court may, in its discretion, suspend a decision until the enumerated motion shall have been argued. Per Bronson, J.</p> <p>Where the intention is to move on the ground of newly discovered evidence, the ground of surprise may also be added, and the whole will then be heard to gether at the general term. Per Bronson, X</p>

<p>To sustain a criminal prosecution for obtaining the signature of one to a mortgage by false pretences, the mere fact of the instrument having been signed is not enough; a delivery must also be shown. Per Nelson, Ch. J.</p> <p>If the indictment, in such ease, pursue the words of the statute by charging that the defendant unlawfully &c. obtained (he. signature, it will be sufficient, though it do not aver a delivery in terms.</p> <p>The indictment need not describe the premises covered by the mortgage.</p> <p>The case of The People v. Wright, (9 Wend. 193,) commented on and explained.</p>

<p>Assumpsit, tried at the Yates circuit in November, 1841, before Moseley, C. Judge. The action was against Benham and Charles Hubbard, as endorsers of the following note :— “ Three months after date, for value received, I promise to pay to the order of Charles Hubbard three hundred dollars at the Bank of Geneva. Penn Yan, April 1, 1837. (Signed) W. W. Staats.” Endorsed, a Ch’s Hubbard, George Benham, Moses Hubbard, Jr.” When the note fell due, John A. Coffin was a notary public at Geneva ; and Harman Hendy, a teller in the bank, acted as the clerk of the notary, and this note was noted by Hendy. The notary and clerk were both dead at the time of the trial. A book kept by Hendy contained a memorandum in relation to this note as follows :</p> <p>« W. W. Staats—Ch’s Hubbard, ) 1 April, 1837,3 P. M.</p> <p>George Benham, 1 To W. Babcock, Penn Moses Hubbard, ' Yan P. 0., Penn Yan.</p> <p>Wm. Babcock. $300. 6s.</p> <p>July 4, 1837, lodged in P. O”</p> <p>On the face of the note was the following entry in the hand writing of Hendy :—“ Noted July 4, ’36. J. A. C., N. P., fees 6s.” The book keeper of the bank testified in relation to these memoranda as follows :—I understand “ 1 April, 1837,” to mean the date of the note, and “July 4, 1837,” to mean the time it was noted; the words “To W. Babcock, Penn Yan P. O., Penn Yan,” mean that notice of the protest of the note had been sent by mail directed to Wm. Babcock at Penn Yan ; the figures “ $300” mean the amount of the note ; the name “ W. W. Staats” indicates the maker, and “ Ch’s Hubbard, George Benham, Moses Hubbard and Wm. Babcock” the endorsers ; “ Noted July 4, ’36, J. A. C., N. P., fees 6s.” means that the note had been protested July 4, 1836, by John A. Coffin, notary public, and that his fees were 75 cents ; the figures “ 36” in “ July 4, ’36,” are evidently a mistake, and should have been July 4, ’37. The witness further stated that the notary was in the habit of allowing Hendy to protest notes in his name, and to notify endorsers; the whole business was conducted by Hendy without the superintendence of the notary. Notices for each of the endorsers in the name of Coffin, the notary, were sent by mail to Babcock, who lived at Penn Yan, and were post marked Geneva, July 5th. The defendant Benham resided at Penn Yan, and on the 6th of July, 1837, Babcock put the notice for Benham, which had been forwarded from Geneva, in the post office at Penn Yan directed to Benham. The defendant Benham objected to receiving the memoranda of the deceased clerk, and also to the explanatory evidence of the book keeper, and the objections were overruled. He moved for a nonsuit on the following grounds : 1. That the note was not regularly protested, that the evidence of demand was insufficient, and that Coffin had no right to delegate his authority as notary public to Hendy ; 2. That leaving the notice in the post office at Penn Yan, there being no evidence that the defendant received it, was insufficient. The motion for a nonsuit was overruled. Further testimony was given, and some other questions raised, after which the cause was submitted to the jury, who found a verdict for the plaintiff. The defendant noW moved for a new trial on a case.</p>

<p>In an indictment under 2 R. S. 698, § 3, for attempting to commit an offence, the particular manner in which the attempt was made is immaterial, and need not be alleged.</p> <p>On the trial of an indictment under the above statute for an attempt to commit arson, it was shown that the prisoner solicited one It. to set fire to a bam, and gave him materials for the purpose; held, sufficient to warrant a conviction, though the prisoner did not mean to be present at the commission of the offence, and K. never intended to commit it.</p> <p>Semble, that merely soliciting one to commit a felony, without any other act being done, is sufficient to warrant a conviction under the statute.</p>

<p>As a general rule, all public officers, though not expressly authorized to sue by statute, have a capacity to sue commensurate with their public trusts and duties. Per Bbonson, J.</p> <p>In actions either by or against any of the officers named in 2 R. S. 473, § 92, the individual name of the incumbent must be used, with the addition of his name of office.</p> <p>Accordingly, where the action was in the name of “ The supervisor of the town of G.," without mentioning the name of the incumbent; held, that it could not be maintained.</p>

Ejectment, tried before Dayton, C. Judge, at the Livingston circuit, in September, 1842. Clement Bishop, junior, being seized of two parcels of land in Avon, Livingston county— the premises in question in this suit—on the 26th day of August, 1825, made his last will, by which he devised this property to his son Clement Bishop, junior, without any words of inheritance, but with such a personal charge on the devisee as would carry a fee.

<p>The statute (1 JR. S. 513, § 77 et seg.) authorizing a private road to be laid out over the lands of a person, without his consent, is unconstitutional and void. Nelson, Ch. J. dissented.</p> <p>The legislature can only exercise such powers as have been delegated to it, and when it transcends these limits, its acts are utterly void. Per Bronson, J.</p> <p>The effect to be given to a general grant of legislative power like that contained in Art. 1, § 1 of the constitution of this state, considered and discussed.</p> <p>The phrase law of the land, in Art. 7, § 1 of the constitution, imports a suit, trial and judgment according to the course of the common law, or in the established and usual mode of contesting individual rights. Per Bronson, J.</p> <p>So as to the phrase due process of law, in Art. 7, § 7 of the constitution. Per Bronson, J.</p> <p>Private property cannot he taken even for public use, without making just compensation to the owner.</p>

<p>A covenant was entered into between S. and T. of the one part and B. of the other, wherein S., who owned certain lands, agreed to sell them to the best advantage he could obtain /or them in cash between the date of the covenant and the first of October then next, and pay the proceeds to B., within the time mentioned, to apply on a mortgage executed to him by S.; after which followed this clause—“ Now therefore we agree that the said moneys so received as aforesaid shall be paid to said B. &c., and that said S. shall use all necessary care and diligence in the sale of said lots.” Held, an undertaking by S. and T. that, among other things, S. -should use all necessary care and diligence to make sales within the time specified, and that he should use the like care and diligence to sell to the best advantage or for the best price which could be obtained within the same period.</p> <p>Where, in an action on such covenant, one of the breaches assigned was. that “ the defendants or either of them did not ‘pay the proceeds of the sale to the plaintiff,” without alleging that any sale had -been made; held bad on special demurrer.</p> <p>So of a breach that “ S. aid not sell and dispose of the lands to the best advantage or for the most he could obtain," without showing whether the plaintiff meant to go for improperly omitting to sell at all, or for selling at too low a price.</p> <p>Otherwise, of a breach following and negating the words of the covenant; e. g. that S', did not use all necessary care and diligence in the sale of the lands.</p> <p>As a general rule, it is sufficient, in assigning a breach, to follow and negative the words of the covenant.</p> <p>An exception to the rule obtains where this mode of pleading does not necessarily amount to a breach. Per Bronson, J.</p> <p>When the pleader undertakes to assign a breach coming within the substance, effect or intent of the covenant, he is held to a more strict rule than when he follows either negatively or affirmatively, as the case may be, the words of the contract. Per Bronson, J.</p> <p>"Where a declaration in covenant assigns several distinct breaches, some of which are good, but others bad, and the defendant interposes a demurrer going to the whole declaration, the plaintiff will be entitled to judgment on the demurrer.</p> <p>The defendant, under such circumstances, should plead to the breaches which are well assigned, and demur to the others.</p>

<p>On error from the Onondaga common pleas. Ray sued Birdseye before a justice, in trover, for a quantity of wheat, and recovered j udgment for one hundred dollars, besides costs; whereupon Birdseye appealed to the common pleas. On the trial in the latter court, the facts proved were as follows : In the fall of 1840, one Houghtailing, sowed about fifteen acres of wheat upon shares, on a farm belonging to one Philips. On the 19th of September, shortly after Houghtailing had finished sowing the wheat, it was levied upon by the sheriff under a fi. fa. against Houghtailing in favor of one Vinal. The fi. fa. was received by the sheriff on the 21st of July, 1840, and was returnable on the 3d Monday of October following, The sheriff seized the whole of the wheat, not knowing at the time that Philips owned an undivided moiety of it, but supposing the entire interest belonged to Houghtailing. Some months before this, Ray had become responsible with Houghtailing on a note given for the benefit of the latter, under an express promise that he (Ray) should be secured. The note was payable on the 1st of January, 1841. On the 16th of September, 1840, Houghtailing turned out his moiety of the wheat to Ray, as security, telling Ray that he would be under the necessity of taking up the note. No writings were entered into, and there was some dispute on the trial whether this transaction amounted to an absolute sale of the wheat to Ray, or a mortgage. The evidence was quite clear, however, that a mere mortgage, or perhaps a pledge, was intended. On the 3d of October, 1840, Houghtailing purchased Philips’ moiety of the wheat; and, on the 5th of the same month, he (Houghtailing) turned out this also to Ray in the same manner as he had done the other, and for the same purpose. Afterwards the sheriff, without having made any new levy, advertised and sold the whole property in the wheat under the Ji. fa., and it was bid in by one Alexander. • Both the levy and sale were made under directions from the defendant in the court below, Mr. Birdseye. The evidence was contradictory as to whether or not Ray had knowledge of the fi. fa. when the wheat was turned out to him.</p> <p>The counsel for the defendant requested the court below to instruct the jury that the levy upon the wheat by the sheriff on the 19th of September, operated as a seizure of the entirety for the purposes of the sale, and that no new levy was necessary. The court were also requested to instruct the jury that Ray, having taken the wheat as security for a precedent debt, and being a mere mortgagee, was not a' bona fide purchaser within the act, (2 R. S. 366, § 17,) whether he had notice of the./». fa. or not. The court refused so to instruct the jury, but charged the contrary as to both points. The defendant excepted. Verdict and judgment for the plaintiff, $120, being the. value of the entire interest in the wheat. The defendant sued out a writ of error.</p>

Demurrer to declaration on a chattel note. The declaration was as follows: Betsey Rockwell, George T. Rockwell and Jeremy Rockwell, executors &c. of Jeremy Rockwell deceased, plaintiffs in this suit, by See., complain of Joseph Rockwell, defendant in this suit; for that whereas the said defendant, on &c., at &c., made his certain chattel note in writing bearing date &c., and then and there delivered the said note to the said testator in his lifetime, and thereby then and…

The action was assumpsit by Smith and others against White and others, and was commenced by capias on the 2d of April, 1841. The defendants pleaded in abatement another action pending foi the same cause, brought by the same plaintiffs against the same defendants in the same court.

<p>Error to the Chenango C. P. The action was originally hr ought in a justice’s court by Williams against Keech, Wilcox and Jaqueth, as trustees of school district No. 7 in the town of Columbus; and the plaintiff declared in assumpsit for work, labor and materials in building a school house for the district. On the trial, it appeared that the work was done under a written contract, dated June 29, 1839, between the plaintiff of the one part, and Allcott, Page and Rowe as trustees, who were in fact at that time the trustees of the district. The plaintiff agreed to have the house completed by the first day of November then next, and the trustees agreed to pay the plaintiff $150 for the work when the house should be completed. In October, 1839, before the work was finished, the defendants were elected trustees of the district, and the trustees who made the contract went out of office. They had previously, on the 18th of July, 1840, paid the plaintiff $138,48 on the contract.</p> <p>The defendants gave evidence to show that the work was not well done. In answer to this, the justice allowed the plaintiff to prove that it would have been worth more than the contract price to build the house in a workmanlike manner. This evidence was objected to by the defendants. The justice gave judgment for the plaintiff for $17,67, besides costs. On certiorari, the common pleas reversed the judgment, and the plaintiff b ought error.</p>

<p>A deed executed by a master under a decree of foreclosure in chancery, passes the title to the purchaser at the moment of delivery, though the report of sale be not made and confirmed until sometime afterward.</p> <p>Bven if it were otherwise, the subsequent confirmation of the sale would relate back to the delivery of the deed, and thus give it effect from that time as against an intruder into the premises. Per Cowen, J.</p> <p>One who enters upon land under a contract of purchase, but who afterwards fails to make payments according to the contract, and disavows all intent to make them, is as effectually a wrong-doer as if his original entry had been without color of right. Per Cowen, J.</p> <p>A special verdict must find facts; not the mere evidence of facts.</p> <p>A decree of foreclosure is inoperative by way of estoppel upon one not made a party to the suit, and who entered into possession of the mortgaged premises before the suit was commenced ; nor can he be turned out of possession by an execution on the decree.</p> <p>In ejectment, however, by a purchaser under the decree,' against one not a party, the former may use the record of the foreclosure suit by way of deraigning title.</p> <p>The decree cannot be invalidated or questioned, in such case, on the ground of mere error or irregularity.</p> <p>Where the charter of a corporation gave the company power to take mortgages, and then provided that all sales in virtue of them should be made in the county where the property was situated: held, that a decree of foreclosure, though describing the property as being in the county of O., and directing a sale there, whereas it was situated in the county of M., was not impeachable on this ground collaterally; and that, upon a sale made in pursuance of it, the purchaser acquired a good title.</p> <p>The clause in the charter may be satisfied by confining it to a summary foreclosure at law; at all events, even if applicable to a foreclosure in chancery, it is but directory as to that court, and an error in respect to it can only be corrected on appeal. Per Cowen, J.</p>

<p>A mortgagee of a ship, who has taken possession and caused it to be registered in his own name, will, in general, be liable for supplies furnished and repairs madej and this, though his relation to the ship was unknown to the creditor when the demand arose.</p>

P. Johnson sued Gilbert before a justice of the peace in assumpsit, and recovered $29,27 besides costs. The defendant appealed ; and on the trial in the C. P., the plaintiff offered to prove the following case. One Eastman made a note as follows: “ By the first of September next, for value received, I promise to pay William D. Gilbert [the defendant in this suit] a first rate two horse wagon wood„ painted, with the labor of setting the boxes. Guilford, June 15, 1833.

Assumpsit, tried before Dayton, C. Judge, at the Monroe circuit, in April, 1839.

Assumpsit, tried at the Seneca circuit, in May, 1842, before Moseley, C. Judge.

Assumpsit, tried at the Niagara circuit, in March, 1842, before Dayton, C. Judge. The action was on a fire-policy, dated November 25th, 1839, by which the defendants undertook and promised to insure Charles J. Mann, (the nominal plaintiff,) on goods in his store at Lockport, to the amount of $2000, for the term of five years.

<p>On error from the New-York common pleas. A. Hoyt sued Miner under the New-York city mechanics’ act, {Stat. of 1830, p. 412, and Stat. of 1832, p. 181,) for work done by said Hoyt in building a house, viz. No. 157 Henry-street. The work in question was done for D. Hoyt, the contractor, between the 3d of February, 1839, and the 15th of April following ; and the attested account of A. Hoyt was served upon Miner on the 29th of April, 1839.</p> <p>The contract between Miner and D. Hoyt was entered into August 1st, 1838, and by its terms the house was to be finished February 1st, 1839 ; but on the 21st of November, 1838, the parties extended the time for finishing the house to the 25th of April, 1839. The contract bound Miner to pay D. Hoyt for building the house the sum of $5564,34, as follows : “ When the first tier of beams are laid and front and rear walls put up, $500. When the third tier of beams are laid and walls put up, $500. When the roof is tinned and completed, $700. When the scratch coat is on and floors laid, $700. When the brown coat is on, sashes glazed and put in, &c. $700. When the walls, ceilings, cornices and all the hard finish is on, &c. $900,. When the window shutters and doors are all hung, &c. $300 ; and the balance when the building is all completed.”</p> <p>The above sums included the mason work, a part of which was a party wall to be appraised by disinterested persons and paid for by D. H )yl. This was afterwards appraised at $312. The mason work was valued by D. Hoyt and Miner at $3350. One Pierson undertook to do that; and all three agreed that Miner should pay Pierson directly, thus : 61 When the first tier of beams are on, front and rear up, $300. When the third tier of beams are on and walls up, $300. When the roof is on and tinned, $400. When the scratch coat is on, $400. When browned, $400. When yard finished, $400. The balance when house is finished, $1150.” On the 15th of August, 1838, D. Hoyt gave Pierson an order on Miner pursuant to the above arrangement. Pierson assumed the price of the party wall, and gave his note to Miner for it according to the appraisement. The note bore date October 3d, 1838. On the 15th of April, 1839, the building had progressed to that stage when the sixth instalment, specified in the contract between D. Hoyt and Miner, became due, viz. the $900 payment. Some work had been done also towards the seventh payment. The building then took fire and was partially destroyed; whereupon a disagreement arose between D. Hoyt and Miner, in consequence of which the former ceased to work, and Miner had the building finished by others. Evidence was given tending to show D. Hoyt’s readiness to go on and complete the building by the extended time, (25th of April,) and that Miner refused to allow him to do so.</p> <p>It was not disputed that, when the fire happened, Miner had paid to D. Hoyt and Pierson the sum of $3770 on the building contract. Miner also claimed to be allowed, either as payment or by way of set-off, the $312 note given by Pierson for the estimated value of the party wall. He also claimed to have allowed him a due-bill purporting to have been given him by D. Hoyt for $78 money lent, and dated March 30, 1839.</p> <p>On all the points in dispute, D. Hoyt himself was an important witness for the plaintiff in the court below, A. Hoyt. On his being offered, he was objected to by the defendant, Miner; whereupon the plaintiff executed.a release. The release was of all demands &c. and all personal liability, but declared it to be understood that the release should not operate to prejudice the plaintiff’s claim in this suit. The defendant next objected that the release, if operative to any extent, discharged the plaintiff’s cause of action ; and that, if not, it was insufficient to restore the witness’ competency. The court decided that the witness might be sworn.</p> <p>Much testimony was given and various questions raised in the court below, not necessary to be here stated. The court charged, among other things, that if the due-bill for $78 was given upon a mere loan, it could not be allowed the defendant, -either as so much paid D. Hoyt, or as a set-off; otherwise, if there had been an agreement between D. Hoyt and the defendant that it should apply as payment. The court further instructed the jury to disallow the defendant’s claim in respect to the Pierson note of $312. Exceptions were taken to the charge, and also to the decision admitting D. Hoyt as a witness. Verdict and judgment for the plaintiff below ; whereupon Miner, the defendant, brought error.</p>

Assumpsit, tried at the Madison circuit in September, 1841, before Gridley, C. Judge. The case proved at the trial was this: One Johnson, desiring a credit of the plaintiff for some iron castings, applied to him for that purpose in the spring of 1839. A conversation .ensued, in which Johnson stated that he would get the defendant’s order for them.

<p>After the plaintiff has rested his cause, it is in the discretion of the court whether ho shall be.allowed to give further evidence, save in reply.</p> <p>What shad be deemed evidence in reply, under such circumstances, considered. The plaintiff, on the trial of a cause, having announced his intention of resting, the defendant moved for a nonsuit; whereupon the court re-called and interrogated a witness of the plaintiff, and thus drew out a new fact tending against the latter-on the leading point in dispute. Held, that the court were bound to hear further testimony on the part of the plaintiff in reply, and that, for their refusal to do-so, error would lie.</p> <p>Whether a plaintiff shall be allowed to depart from the case first established by him, hut which he has failed to sustain, and prove a new and incompatible one, is matter resting in the discretion of the court at the trial, upon which error will not lie. See note (a).</p>

Assumpsit, tried at the Monroe circuit, in April, 1842, before Dayton, C. Judge. The action was on a promissory note, dated May 6th, 1838, and payable on the 1st of September then next. The defendant pleaded infancy, and the plaintiffs replied that, after the defendant had attained to the age of 2.1 years, to wit, on &c., at &c., he ratified and confirmed the several promises &c. The defendant rejoined, taking issue upon the allegation of a new promise.

P. The district attorney brought an action of debt in the court below in the name of the people of this state against Hazard, to recover a fine imposed upon the latter by a regimental court-martial, for delinquency as captain in the militia. The defendant demurred to the declaration, on the ground that a fine imposed by a regimental court-martial could only be collected by warrant issued by the president of such court, and not by suit in the name of the people.

<p>A city ordinance prohibiting the sale of pressed hay mthmd inspection, and impos, ing a penalty for non-observance, contravenes the provisions of 1 R. S. 574, § 5 et seq., and is therefore void.</p> <p>' Error to the superior court of the city of New-York. The plaintiffs in error sued the defendant in error before one of the assistant justices of the city of New-York to recover the amount of several penalties incurred for the violation of an ordinance of the city relating to the sale of hay, passed May 8th, 1839. The ordinance made it the duty of the inspectors to cause all pressed hay &c. which might be sold or offered for sale in the city of New-York to be inspected and weighed, and the quality and weight thereof to be marked thereon ; and provided that if any person should sell any such hay without having the same inspected and weighed according to the requirements of the ordinance, he should forfeit and pay the sum of $5 for every bundle sold. It appeared that the defendant had sold two bundles of pressed hay in violation of the ordinance, and the justice rendered a judgment for $10 in favor of the plaintiffs. The judgment was reversed by the superior court on certiorari, and the plaintiffs sued out a writ of error.</p>

<p>Assumpsit, tried at the New-York circuit, in February, 1842, before Kent, C. Judge. The action was by Suydam, Sage and others, commission merchants in the city of New-York, against Norton, Bartle & McNeil,' merchants and millers at Phelps, Ontario county, and Albert Westfall. The plaintiffs claimed to recover the amount of a bill of exchange alleged to have been paid by them to the use of the defendants. The bill was in these words :</p> <p>“ Phelps, July 1st, 1839¡</p> <p>Messrs. Suydam, Sage & Co;</p> <p>Four months after date, please pay to the order of C. A. Cook, Esq, cash’r one thousand dollars, for value received, and charge to the acc’t of</p> <p>Your ob’t serves,</p> <p>Norton, Bartle & McNeil, Albert Westfall.”</p> <p>Westfall was the only defendant who pleaded. On the trial, the case was this : At various times during the years 1838 and 1839 the plaintiffs received on consignment a large quantity of floúr, whiskey &c., from Norton, Bartle & McNeil, and accepted their drafts on account of such consignments. The draft or bill of exchange in question was accepted and paid on the 4th of November, 1839. The plaintiffs made acceptances to a large amount beyond the value of the goods consigned to them j and their account current, which was prored to be correct, showed a balance due them on the 1st of January, 1840, of $41,911,95. This account contained charges for interest on actual advances, and a commission of two and a half per cent, on acceptances not met with produce. The dealings between the parties were carried on under an agreem'ent signed by the plaintiffs, as follows ; ce Memorandum of an agreement made the 22d February, 1838, between Norton, Bartle & McNeil, of the town of Phelps, and Suydam, Sage & Co. of the city of New-York. Whereas it is proposed that the said Suydam, Sage & Co. shall come under acceptances for the said Norton, Bartle & McNeil, for the security of which they have placed in the hands of the said S. S. & Co. a certain bond and mortgage, it is mutually understood and agreed that the amount of liabilities that Suydam, Sage & Co, shall be under at any time for said Norton, Bartle & McNeil, shall not exceed the sum of $20,000. It is also mutually understood and agreed, that all the produce sent to New-York by Norton, Bartle & McNeil, except lumber, shall be sent to Suydam, Sage & Co. for sale on commission $ that they shall at all times be put in funds for their liabilities by the time they become due; and that they shall be entitled to 2| per cent, commission on all acceptances or advances met otherwise than with produce. It is unrlerstood that Suydam, Sage & Co. are to accept at all times to the amount of $20,000; that flour and other produce in their hands shall be considered as money at the market prices unless limited or ordered held for higher prices. It is also further agreed, that at the expiration of each and every year, all the liabilities and advances of the said Suydam, Sage & Co. for Norton, Bartle & McNeil shall be paid up, and the account balanced by the said Norton, Bartle & McNeil.”</p> <p>The bond and mortgage mentioned in the agreement were executed to the plaintiffs by Bartle and McNeil, conditioned for the payment of $40,000, and bore date on the 12th of February, 1838. On the 1s t of July, 1839, the bill in question was presented to the Bank of Geneva by one of the firm of Norton, Bartle & McNeil, and at the same time a letter of credit was handed to the cashier, Mr. Cook ; on receiving which, the bill was discounted. The letter was in these words :</p> <p>“ New-York, June 20th, 1839.</p> <p>C. A. 'Cook, Esq.</p> <p>Messrs. Norton, Bartle & McNeil are hereby authorized to draw upon us at four months to the amount of $5000—the drafts to be undersigned by such persons as you consider perfectly responsible, and to be drawn within the next thirty days.</p> <p>Suydam, Sage & Co.”</p> <p>This letter was sent by the plaintiffs to Norton, Bartle & McNeil; and the cashier of the bank testified that the money was advanced on the letter of credit. The witness further stated that, when banks want security on a draft, the usual course is to require an endorser. It further appeared that the defendant Westfall was a farmer residing some three or four miles from Norton, Bartle & McNeil, with whom he had no business connection whatever. The mortgaged premises were shown to be worth $20,000 on a sale upon credit. Several commission merchants testified that it was the established custom to charge the same commissions on acceptances met otherwise than with produce, as is charged on sales of property ; viz. two and a half per cent. They said the custom was to charge commissions on the whole amount of acceptances in case they exceeded the proceeds of the property; and, by way of illustration, stated, that if the commission merchant accepted for $2000, and the drawer consigned property to the acceptor - the proceeds of which were $1500, two and a half per cent, was charged on the amount of the'sales, and the like per cent-age on the balance of the drafts after deducting the proceeds of the sales. It further appeared that, when the bill in question was accepted, the plaintiffs were under acceptances to more than $20,000 over and above all property and proceeds in their hands belonging to Norton, Bartle & McNeil.</p> <p>The circuit judge charged, that a drawer of an accommodation bill was, in general, liable to refund to the drawee who accepted and paid it without funds ; and that he saw nothing in the evidence to take the ease out of the general rule. He also instructed the jury that if they believed the charge of two and a half per cent, was a bona fide, usual and reasonable compensation for trouble, and warranted by the usage of the trade, the transaction was not usurious ; but if they were of opinion that it was a device to evade the statute against usury, they should find for the defendants. The counsel for the defendant Westfall excepted to the judge’s charge, The jury rendered a verdict for the plaintiffs, and the defendant Westfall now moved for a new trial on a bill of exceptions.</p>

<p>Motion to set aside the report of a referee. The action was against the maker and endorsers of two promissory notes in these words :</p> <p>“$1000. ' . New-York, Oct. 10th, 1840.</p> <p>Four months after date, I promise to pay the order of Josiah Barber and A. D. Leonard, one thousand- dollars at the Union Bank, for value received.</p> <p>(Signed) Robert Muir.</p> <p>(Endorsed) Josiah Barber,</p> <p>A. D. Leonard, Auburn, N. Y.”</p> <p>“ $2000." • • New-York, Oct. 12th, 1840.</p> <p>Four months after date, I promise to pay the order of Josiah Barber and A. D. Leonard, two thousand dollars, for value received, at the Union Bank in this city.</p> <p>(Signed) Robert Muir.</p> <p>(Endorsed) Josiah Barber,</p> <p>A. D. Leonard, Auburn, N. Y.”</p> <p>On the hearing before the referee, the plaintiff, after proving the genuineness of the notes and endorsements, and that the defendants resided at Auburn when the notes fell due, gave in ■ evidence two notarial certificates, each stating that notice of protest See. was served on Josiah Barber by putting the same in the post office directed to him at Auburn, and that a like notice was also served on A. D. Leonard by putting the same in the post office directed to Auburn “ according to directions on note.” The defendants’ counsel objected that the evidence of notice to the endorsers was insufficient, because, 1. The certificates did not state that the notices were put into the post office by the notary, nor by whom they were put in; and 2. The certificates did not state that Auburn was the reputed place of residence of the endorsers, nor the post office nearest thereto. The objection was overruled.</p> <p>The defendants claimed that the notes were void for usury , and, in respect to this branch of the case, the following facts appeared : In June, 1840, Muir made two notes—one for $2000 and the other for $1000—payable at four months, and procured them to be endorsed for his accommodation by Barber and Leonard. They were then presented by Muir to one Burr, a broker in the city of New-York, with a view to raise money on them. Burr said it would be necessary to have the notes endorsed by a person residing in the city • whereupon Muir authorized him to “buy a name or guaranty.” Application was accordingly made by Burr to a firm of brokers of which the plaintiff was. a member, who agreed to make the endorsements for two and a half or three per cent. These terms were acceded to by Burr, and the endorsements made on payment of the per centage. One of the .notes was discounted by the Union Bank, of which.the plaintiff was a director, and the other by some other bank in the city of New-York. After deducting the sum paid for the endorsements and'his own charges, Burr paid the balance of the proceeds of the notes to Muir About the time these fell due, Muir made two other notes (the notes in question) and left them with Burr to be discounted, directing the avails to be applied tú the payment of the first notes. They were accordingly discounted by the plaintiff’s firm, with full knowledge of the circumstances, and the proceeds applied as directed by Muir.</p> <p>The referee reported in favor of the plaintiff for the. amoriht of the two notes, with interest. He concluded his report by saying that, upon a fair construction of the testimony, the first transaction was, in his opinion, the mere sale of endorsements, or, in other words, the giving of a conditional guaranty of the paypient of the notes for which the plaintiff received a stipulated compensation ; and that there was no loan of money or of choses in action within the meaning of the statute of usury,</p>

<p>Assumpsit on a promissory note, tried at the Monroe circuit, in December, 1841, before Dayton, C. Judge. The note was for $7005,67, dated December 26th, 1836, and payable to the Bank of Rochester, or bearer, three months after date. The defence was usury. At the trial, the case proved was this : On the 26th of January, 1836, a Written agreement was entered into by Daniel Collins and the Bank of Rochester, by which the former covenanted to assign to the bank, bonds and mortgages on real estate to the amount of $13,000, payable in five years, with interest semi-annually, and to guaranty the payment of the mortgages; in consideration whereof, the bank agreed to assign to Collins 130 shares of stock in the Rochester Cotton Manufacturing Company, (the nominal value of which was $6500,) and pay him the sum of $6500 in money. The bonds and mortgages not having been assigned, another agreement was made between the parties on the 27th of February following, which was written below the other on the same piece of paper. By this last agreement, after reciting that Collins had given two promissory notes for $6500 each, one endorsed by Strong (the defendant) and the other by one Frost, payable ninety days from date at a bank in the city of New-York, it-was stipulated that the Bank of Rochester would receive bonds and mortgages in payment of said notes, if delivered within the time said notes had to run. The notes mentioned iif the agreement bore interest from date, and, when they were given, the bank assigned the 130 shares of stock, and paid Collins $6500 in cash. This assignment of stock and payment of money formed the only consideration of the notes. The note in question was made by the defendant, and substituted in the place of the one mentioned in the agreement as having been endorsed by him. It further appeared in evidence .that, during the month of January, 1836, and for a long time afterwards, the stock of the Rochester Cotton Manufacturing Company was at least twenty-five per cent, below par</p> <p>The defendant’s counsel offered to read in evidence the deposition of Daniel Collins, a resident of Ohio, taken under a commission on the 11th of October, 1839. The plaintiffs’ counsel objected, on the ground that Collins was interested. The defendant’s counsel claimed that he had been rendered competent by release ; and, for the purpose of showing this, proved the signature of the defendant to a release dated October 2d, 1839. The defendant’s counsel further proved that the release was delivered by the defendant to his attorney, Mr. Gilbert, for Collins’ use, with a request to send it to him—that it was accordingly enclosed in the same wrapper with the commission and sent by mail to the commissioner, with directions to deliver it to Collins before being sworn—that it was returned with the commission &c. postmarked at the residence of the commissioner—and that Collins left this state in 1836, for Ohio, where he had ever since resided. The plaintiffs’ counsel insisted that the evidence was not sufficient to show a delivery of the release to Collins, and the circuit judge sustained the objection.</p> <p>The judge charged the jury, among other things, that if they should be satisfied the transaction was intended by the parties (Collins and the bank,) as a cover for a usurious loan, the defendant would be entitled to a verdict; but if, on the other hand, they thought the contract between the parties was such as the two written agreements and the note imported on their face, and nothing more, they should find in favor of the plaintiffs. The jury rendered a verdict for the plaintiffs; and the defendant now moved for a new trial on a case.</p>

<p>An accommodation endorsement made by one member of b, mercantile Sim without the assent, either express or implied, of his co-partners, cannot be enforced against the latter, except in favor of a Iona fide holder without notice. Per Nelson, Ch. J,</p> <p>N. gave L. a business note, endorsed by M., which was transferred to A. After the note fell due, M., being indebted to N., made another note for the same amount, payable to the order of and endorsed by the latter together with V. & Co., and sent it to A. as a substitute for the first note, which he desired should be returned to him, Held, that though the firm name of V. &. Go. was used for M.’b accommodation, the circumstances were not sufficient to charge A. with knowledge of the fact; and that he was therefore entitled to a verdict against all the members of the firm, though the endorsement was made by one, without the knowledge or consent of the others.</p>

<p>Assumpsit, tried at the Kings circuit, in December, 1841, before Kent, C. Judge. The action was by the plaintiff as endorsee of a written instrument in these words :</p> <p>“ No. 1122. Dec. 31st, 1836.</p> <p>City of Brooklyn, ss.</p> <p>To the Treasurer of the city of</p> <p>Brooklyn, at the Long Island Bank. Pay Alexander Lyon, or order, fifteen hundred dollars for award No. 7, and charge to Bedford road assessment &c.</p> <p>A. G. Stevens, Clerk. Jon. Trotter, Mayor.”</p> <p>(Endorsed) “ Alexander Lyon.”</p> <p>On the trial, the plaintiff proved thel execution of the instrument and endorsement, and that the drawers were the mayor and clerk of the common council of the city of Brooklyn. It was also proved that, at the date of the instrument, the treasurer of the city had no funds arising from the Bedford road assessment, but that such funds came to his hands soon after and were drawn out from time to time by the officers of the city corporation. The instrument in question was presented to the treasurer in October, 1838, and payment refused. It further appeared that the'instrument was drawn in the ordinary form and according to the usual course of business in such cases, having been authorized by a vote of the common council. The entry in the book of minutes, evincing the authority, was as follows : “ Communication from H. C. M. that the opening of Bedford road had been confirmed &c., on motion, the usual order was entered.” No order was in fact entered, but the term u usual order” was shown to mean an order to pay the awards, costs of the proceedings &c. The plaintiff here rested, and the defendants’ counsel moved for a nonsuit on the following, among other grounds, viz. : 1. That the instrument in question was not presented in due season for payment; 2. That notice of non-payment had not been given ; 3. That the instrument was not negotiable ; 4. That the mayor and clerk were not legally authorized to bind the defendants by drawing the instrument in question ; and 5. That the common council had no power to issue negotiable paper for drawing funds from the city treasury. The circuit judge denied the motion, and the defendants’ counsel excepted. The jury rendered a verdict for the plaintiff, and the defendants now moved for a new trial on a bill of exceptions.</p>

<p>Assumpsit, on a promissory note for $554,05, dated April 1st, 1837, payable to John Lay, Jr., Morris Butler and A. II. Patterson, assignees of Hempsted & Keeler, or order, four months from date. The note was endorsed by the payees to D. Tillinghast, who afterwards endorsed it in blank. The defence was payment. The cause was referred to a sole referee, and, on the hearing before him, the facts proved were as follows : On the 28th of March, 1837, Hempsted & Keeler executed to Lay, Butler and Patterson, a voluntary assignment of all their effects for the benefit of creditors. Among the effects so assigned was an account against the defendant, for which the note in question was given. On the 4th of August, 1837, one Barnum filed a creditor’s bill in the court of chancery against Hempsted & Keeler and their assignees \ whereupon an injunction was issued restraining them from collecting or receiving the debts due H. & K. In September following, after the service of the injunction, the defendant paid to the assignees the amount due on the note in question; but they refused to deliver it up, alleging that the injunction restrained them from parting with it. The money received of the defendant was paid to the Clinton Bank in satisfaction of a judgment in its favor against Hempsted & Keeler. Barnum’s judgment against Hempsted &' Keeler amounted to $610,68 •, and the receiver appointed in the chancery suit [D. TillinghastJ collected over $1200, for which he had not yet accounted. A decree was finally obtained in the- chancery suit, setting aside the assignment as fraudulent. On the 25th of July, 1838, another bill was filed by one Niles against the same parties, and a common receiver appointed for both suits. This last receiver sold the note in question to one Masten for $20, and he transferred it to the plaintiffs. The referee reported in favor of the plaintiffs, and the defendant now moved to set aside the report.</p>

On error from the supreme court. The action in that court^ was replevin, brought by Hanford against Artcher, for certain goods claimed by the former under a sale made to him by the assignees of one Norton. Artcher, being sheriff, seized the goods under a fi.fa. against Norton, insisting that Hanford’s title was fraudulent and void as against Norton’s creditors. Judgment was rendered by the court below in favor of Artcher.

<p>Error to the supreme court. The action in the court below was upon a fire-policy on a building and some personal property belonging to the plaintiff, which bore date August 27th, 1838. The term of insurance was five years, commencing at the date of the policy. In the policy, the building was described as a brick dwelling-house and shop ; and, after setting forth the size of the building and its height above the basement, the policy added—“ which basement is privileged as a cabinetmaker’s shop.” The personal property covered by the policy consisted of “ stock in trade in the cabinet business,” household furniture, wearing apparel and family stores. Among other conditions contained in the policy was this : “ If the said David Alston [the plaintiff J shall make any misrepresentation or concealment, or if such building or premises shall be occupied in any way so as to render the risk more hazardous than at the time of insuring, this policy shall be void and of no effect.” After issue joined in the court below the cause was referred.</p> <p>On the hearing, the plaintiff gave in evidence the policy, the preliminary proofs of loss, See. and then called one Pratt, who testified as follows, viz. : Witness knows the building described in the policy ; it was burned down the last of August, 1838 ; plaintiff occupied the house, and had for some time occupied it as his own. It was totally destroyed except the brick. Witness made out an estimate of the cost of the house, and it amounted to $1781, &c. Plaintiff is a cabinet-maker and had tools, stock in trade, &c. His shop was in the basement of the building. The witness further testified, on cross-examination, that he lived near the house and saw the fire. The first he saw of it, it appeared to be in the basement—i. e. in the shop. This was between nine and ten o’clock in the evening. A fire was kept in the shop, sometimes in the fire-place and sometimes in the furnace—a portable furnace for cooking and heating glue.</p> <p>The defendants then called Lyman Garfield, their secretary, who testified to the following facts: On the 27th of August, 1838, the plaintiff called on the witness for the policy of insurance, the application for it having been sent in sometime previously. Witness told the plaintiff' the company had concluded not to accept the proposals ; adding, that he [the witness] understood the plaintiff was using a fire in the fire-place of the cabinet-maker’s shop [the basement story of the building] and that the house had before taken fire from that cause. The plaintiff enquired where the president of the company [Mr. Starbuek,] resided. Witness informed him; whereupon the plaintiff left, and in about half an hour returned with the president. Some conversation then ensued, and the plaintiff finally said : “ I will abandon the use of the fire-place; I have got a stove and will use that.” Witness understood him he had a stove in the basement. Upon this statement, we agreed to give him the policy, and did give it to him.</p> <p>Mr. Starbuek, the president, was then called by the defendants and gave a more full statement of the conversation at the time alluded to by Garfield. He testified, among other things, that after the plaintiff was informed of the company’s unwillingness to accept the risk, the plaintiff said : “ Suppose I should abandon the fire-place in the basement, wmuld you then take it 1” Witness thereupon consulted with the secretary, and then spoke to the plaintiff, who said he would abandon the fire-place in the basement altogether ; that he would not use it himself nor suffer any other person to use it, but would use a stove which he had. Witness and Mr. Garfield then told the plaintiff if he would do that, they would take the risk, and it was taken accordingly. The building burned up two or three days afterwards. The using of a fire-place in the basement, instead of a stove, was material to the risk.</p> <p>The above testimony of Garfield and Starbuek was objected to by the counsel for the plaintiff in due season ; but the referees were of opinion that it was admissible, and therefore overruled the objection.</p> <p>It appeared from other evidence given, that the plaintiff used the fire-place in the basement, for the purpose of cooking, the next day after the policy was delivered. His affidavit forming a part of the preliminary proofs of loss contained this clause : “ I occupied at the time [of the fire] the basement or lower rooms [of the building] as a cabinet-maker’s shop, for the manufacturing of furniture, and believe, according to the best of my knowledge, that the fire originated in the last mentioned basement rooms, where I was at work late at night varnishing furniture, a fire being on the hearth at the time for that pur pose,” &c.</p> <p>The referees reported in favor of the defendants, and the plaintiff afterwards moved the court below to set aside the report, but the motion was denied. A report of the case in that court, together with the opinion there delivered on denying the motion, will be found in 1 Hill, 510 et seq. After judgment, the plaintiff sued out a writ of error.</p> <p>insisted that the referees er-red in admitting the testimony of Garfield and Starbuck, as to the conversations which passed previous to and at the time of executing the policy. They cited and commented on the following authorities : 1 Phil. Ev. 547, 1th Lond. ed.; Cowen & Hill’s Notes to Phil. Ev. 1384 et seq.; id. 1467 et seq.; Greenl. Ev. 315, 316 ; Stackpole v. Arnold, (11 Mass. Rep. 21;) Atwood v. Cobb, (16 Pick. 231 ;) Swick v. Sears, (1 Hill, 17 ;) Pawson v. Watson, (Doug. 785 ;) Weston v. Ernes, (1 Taunt. 115 ;) Kaines v. Knightly, (Skin. 54;) Vandervoort v. Columbian Ins. Co., (2 Cain. Rep. 155, 161;) Park on Ins. 264, Lond. ed. of 1809 ; Hughes on Ins. 261, Am. ed. of 1833; Livingston & Gilchrist v. The Maryland Ins. Co., (7 Cranch, 536;) 2 Marsh. on Ins. 450, Am. ed. of 1810; 1 Phil. on Ins. 214, 346, 7, 2d ed.; Pawson v. Barnevelt, (Doug. 12, n.;) Jefferson Ins. Co. v. Cotheal, (7 Wend. 80;) 1 Marsh. on Ins. 346, Am. ed. 1810; De Longuemare v. The Tradesmen’s Ins. Co., (2 Hall, 589 ;) 1 Phil. on Ires. 23, 4, 2d ed. ; Higginson v. Dall, (13 Mass. Rep. 96;) Lewis v. Thatcher, (15 id. 431;) 2 Phil. Ev. 36, 7th Lond. ed.; Mumford v. Hallett, (1 John. Rep. 439 ;) Cheriot v. Barker, (2 id. 351;) Parks v. The General Int. Ass. Co., (5 Pick. 34;) Whitney v. Haven, (13 Mass. Rep. 172 ;) Bryant v. The Ocean Ins. Co., (22 Pick. 200 ;) Bayard v. Malcolm, (1 John. Rep. 461;) Boorman v. Johnston, (12 Wend. 573;) Levy and others v. Merrill and others, (4 Greenl. Rep. 180 ;) Catlin v. The Springfield Fire Ins. Co., (1 Sumn. Rep. 434.)</p> <p>cited and commented on Edwards v. Footner, (1 Campb. 530;) and 1 Marsh on Ins. 450, Am. ed., of 1810.</p>

<p>A. sold certain lands to W., who gave hack a bond and mortgage, which thd former assigned to one T.; and afterward, W. re-conveyed to A., taking from him an indemnity against the bond. A. then conveyed the lands to B., covenanting for quiet enjoyment; and B. conveyed them to H. by a quit-claim deed. T. thereupon proceeded to a foreclosure of the mortgage in chancery, and, on the sale, H. became the purchaser. Held, that H. might recover against A. the purchase money paid on the mortgage sale, in an action of assumpsit as for money paid &c. to A.’s use.</p> <p>A verbal promise by a grantor, made contemporaneously with the execution of a deed containing a covenant for quiet enjoyment, that he would pay off an existing incumbrance upon the premises, is merged in the deed, and cannot be enforced. Per Walworth, chancellor.</p> <p>A covenant for quiet enjoyment runs with the land, and passes by a quit-claim deed to a purchaser ftom the grantee. Per Walworth, chancellor.</p> <p>One in possession of land under a deed containing a covenant for quiet enjoyment, has no right to give up the land voluntarily to a stranger claiming by title para, mount, or even to pay off an alleged incumbrance without suit, and then resort to an action upon the Covenant. Per Walworth, chancellor.</p> <p>In the present case, however, the decree of foreclosure, and the sale under it, amounted, in equity, to an eviction; and the money paid by the plaintiff at the sale should be regarded as a payment by coercion of legal process, for the use and benefit of the defendant. Per Walworth, chancellor.</p> <p>Where one standing in the situation of a surety, whether he became so by actual contract or by operation of law, is compelled to pay the debt which his principal in equity and justice ought to have paid, the latter is liable for the amount in an action for money paid &d. to his use. Per Walworth, chancellor.</p>

<p>A sealed instrument, when executed by one acting as attorney, must be executed in the name of the principal, and purport to be sealed with his seal.</p> <p>Accordingly, where a covenant for the sale and purchase of lands was subscribed only with the names of B., H. and O., and commenced thus: “ Articles, &c. made, &c. between T. &c. by S. their attorney, of the first part, and H. and O. of the second part, witnessethand the concluding clause was thus: “ In witness whereof the said B., as attorney of the parties of the first part, and the said parties of the second part, have hereunto set their hands and seals,” Sec. : Held, that the covenant did not purport to have been executed by T. Sec., and that they could not maintain an action Upon it.</p> <p>The case of Magill v. Hinsdale, (6 Com* Rep. 464,) commented on and disapproved. Per Walworth, chancellor.</p> <p>Less strictness is required where the instrument is not under seal; it being sufficient, in such case, if the intent to bind the principal appear in any part of the instrument. Per Walworth, chancellor.</p> <p>No particular form of words is necessary to be observed by the attorney, even in executing a sealed instrument, provided the words used import the requisite facts. Per Walworth, chancellor.</p> <p>Though a deed be executed by an attorney for several principals, it is not necessary to affix a separate seal for each, provided it appear that the seal affixed was intended to be adopted as the seal of all. Semble ; per Walworth, chancellor.</p>

<p>Where, in the conveyance of a lot situated in the city of Rochester, it was described as a mill lot, beginning &c., and running “ eastwardly to the Genesee river; thence northwardly along the shore of said river to Buffalo-street,” &c.: Held, that no part of the bed of the river passed under the conveyance, but that the grantee took only to lowwater-marlr.</p> <p>Bockeb, senator, dissented, holding that the words “ to the Genesee river” extended the grantee’s right usque filum aqua; and that the words “ along the shore’! &c., should be construed as meaning, along the centre of the river in the general direction of the shore.</p> <p>Semble, the case of The Commissioners of the Canal Fund v. Kempshall, (26 Wend. 404,) has settled that, in this state, as in England, a grant of land bounded generally on a navigable freshwater river, extends the right of the grantee to the centre or thread of the river. Per Walworth, chancellor ; sed quare, per Bradish, president.</p> <p>Otherwise, however, if the bank, shore or margin oí the river be designated as the boundary, or the line be described as running along the bank &c. Per Walworth, chancellor. .</p> <p>The like rule applies to grants of land bounded on highways, party-walls, Sec. Per Walworth, chancellor, and Bradish, president.</p> <p>It makes no difference, in the application of the rule, whether the grant relate to a city-lot, or to a larger tract of land in the country. Per Bockee, senator.</p> <p>A river in which the tide does not ebb and flow has no shores, in the technical sense of that term; but, when applied to such river, it means those portions of the banks which touch the margin or edges of the stream at low water. Per Walworth, chancellor, and Bradish, president.</p> <p>A boundary upon the shore is liable to variation from alluvial increment, the attrition of the waters, &c. Per Walworth, chancellor.</p> <p>The bed of a private river cannot pass as incident or appurtenant to a grant. Per Bradish, president.</p>

<p>The clause of the constitution of this state, (Art. 7, § 9,) requiring the assent of two-thirds of the members elected to each branch of the legislature to the passage of every bill creating, Continuing', altering or renewing any body politic or corporate, extends to all corporations properly so called, whether they be pubs lie or private.</p> <p>The act of May 14th, 1840, (Sess. Laws of 1840, p. 257,) excluding aldermen of the city of New-York from the right of sitting as judges of the court of general sessions, is one for altering the charter of that city; and, not having received the assent of two-thirds of the members elected to each branch of the legislature,, it is void.</p> <p>For the purpose of ascertaining whether an act was passed as a majority hill merely, or by a vote of two-thirds, courts may look beyond the printed statute book to the certificate upon the original engrossed bill on file with the secretary of state. Per Walworth, chancellor, and Paige and Franklin, senators.</p> <p>The certificate of the secretary of state endorsed upon the bill pursuant to l R. S. 157, § 11, is not evidence that it was passed by a vote of two-thirds; at all events, it is not conclusive. Per Walworth, chancellor.</p> <p>If the bill be no't certified by the presiding officers of the two houses respectively, in the mode pointed out by 1 R. S. 156, § 3, it must be deemed, prima facie at least, to have been passed by a vote of less than two-thirds. Semble ; per Walworth, chancellor, and Paige and Franklin, senators.</p> <p>The journals kept by the two houses of the legislature may be resorted to in ascertaining whether an act was passed by a vote of two-thirds. Semble; per Paige and Franklin, senators.</p> <p>Towns and counties were not colorations in any sense, when the constitution was adopted; nor are they more than quasi corporations even now. Per Paige, senator.</p> <p>Forced and doubtful interpretations of the language of the constitution, as contra. distinguished from its more natural and popular import, are not to be encouraged or upheld. Per Paige, Scott and Roger, senators.</p> <p>The clause in the constitution (Art. 4, § 7,) requiring judicial officers to he appointed by the governor and senate, does not affect the right previously vested in the aldermen of the city of New-York to sit as judges of the court of general sessions. Per Walworth, chancellor, and Scott, senator</p>

<p>On error from the supreme court, where Luqueer and others, now defendants in error, sued Prosser and others in assumpsit, and recovered judgment. The facts are sufficiently stated in the following opinion of the chancellor. See also 1 Hill, 256 et seq., where the case is reported in the court below.</p>

<p>On error front the supreme court. The action in that court was assumpsit by Nellis against Clark on a promissory note for $300, dated October 13th, 1828, and payable to William T. Curtis or bearer, four years from date, with interest. The defence mainly relied on was, that the consideration of the note was illegal. The cause was first tried in 1836, before Demo, C. Judge, and a verdict rendered for the plaintiff; which was afterwards set aside and a new trial granted by the court below. (See a report of the case in 20 Wend. 24 to 41.) On a second trial before Gridley, C. Judge, at the Oneida circuit, in April, 1840, • the following facts were proved : In March, 1828, John Buttolph sold fifty-six acres of land to the defendant, in consideration of $1200, a part of which was paid in cash, and the balance ($700) secured by bond and mortgage. The sale was made with intent to defraud the creditors of Buttolph, and particularly to prevent the collection of a judgment which he expected would be soon rendered against him in an action of slander, then pending in favor of one Otis. The object of the sale was known to the defendant at the time. In May following, Otis recovered judgment, and the fifty-six acres were levied on and sold to one Bruce, by-virtue of an execution issued thereon. In October of the same year, Buttolph entered into a negotiation with Curtis (the payee of the note in question) for the purchase of a house and lot in Morrisville, proposing to assign the defendant’s bond and mortgage in part payment of the purchase money. After several interviews, the negotiation resulted in a contract of sale by Curtis, in which he agreed to receive the defendant’s notes for an amount equal to what was due on the bond and mortgage, and to execute a deed to Buttolph on receiving the balance of the purchase money ($200) at a future day. The bond and mortgage were accordingly given up and cancelled on the defendant’s giving to Curtis two notes, one for $300, (the note in question,) and the other for $400. Curtis had no knowledge of the consideration for which the bond and mortgage were given. In January, 1829, Buttolph was discharged under the insolvent act, and assigned all his property &c. to one Beecher. In November, 1830, Bruce recovered possession of the fifty-six acres, in an action of ejectment against the defendant, on the ground that the conveyance to him by Buttolph was fraudulent in respect to creditors. A few days after this, by an arrangement between Buttolph and Curtis, the contract between them was cancelled ; Buttolph insisting that the notes ought to be delivered up to the defendant, as he had lost the land for vrhich they were given. The notes had, however, been previously delivered to Beecher, on his demanding them as assignee of Buttolph. In 1831, Beecher transférred the notes to Bruce, one of Buttolph’s creditors ; and they were afterwards transferred to Nellis the plaintiff. There was evidence tending to show that Bruce, as well as the' plaintiff, was cognizant of the consideration of the notes, and the circumstances under which they were given, at the time of the transfers to them respectively.</p> <p>The circuit judge charged the jury that, in his opinion, the defendant was entitled to a verdict, if the plaintiff had notice before the transfer of the notes to him, of the consideration for which they were given and of the facts and circumstances in relation to them ; and that, whether he had such notice, was a question of fact for the jury. The plaintiff’s counsel excepted to the charge; and the jury rendered a verdict for the defendant. The plaintiff moved for a new trial, which was denied by the supreme court at the January term, 1841, and judgment rendered for the defendant; whereupon the plaintiff sued out a .writ of error.</p>

<p>On error from the supreme court, where Curtis sued Hubbard for an. alleged assault and battery. The court below ren-' dered judgment in favor of the defendant, and the plaintiff brought error. For a report of the case in that court, together with the opinion there delivered, see 1 Hill 336 et seq.</p>

<p>On error from the supreme court. The action was brought by Safford, against Wyckoff as president of the Farmers’ Bank of Seneca county, apd one Dodge, to recover the amount of a bill of exchange drawn by the bank in favor of Dodge, and, endorsed by him. The cause was tried twice ; once in December, 1839, and again in October, 184J. On the first trial, a verdict was rendered in favqr of the plaintiff; but the supreme court afterwards set this aside, and granted a new trial. For the facts of the case as proved upon the first trial, and the opinion delivered in the supreme court on granting the new trial, see 1 Hill, 11 et seq. Intermediate the first and second trial, the action was severed as to the defendants, and proceeded after-wards against Wyckoff alone. The facts proved upon the second trial, however, so far as the material question in the case is concerned, were not essentially different from those which the plaintiff gave in evidence at the first, and the circuit judge ordered a nonsuit. At the May term of the supreme court, 1842, the plaintiff moved for a new trial upon a bill of exceptions, but the motion was denied, and judgment rendered in favor of the defendant; whereupon the plaintiff sued out a writ of error.</p>

<p>On error from the supreme court, where Ryerss, Baxter and others, now defendants in error, brought ejectment against Wheeler, the plaintiff in error, and recovered judgment. The facts of the case, together with the opinion of the supreme court, are reported in 25 Wend. 437 et seq.</p>

On error from the supreme court. For a report of the case in the court below, see 24 Wend. 360 to 363. The cause was argued here by

<p>A court of equity will not relieve against a deed of lands on the sole ground that it was given while the complainant was in possession, claiming adversely to the grantor; but will leave the former to his remedy at law. Per Cowen, J.</p> <p>The statute declaring void a deed of lands held adversely to the grantor, was meant for the protection of the claimant; and he may renounce the benefit of it. Per Cowen, J.</p> <p>Where the claimant, on being sued in ejectment, gives a cognovit, his subsequent possession cannot be regarded as adverse to the plaintiff; and hence, if the latter, intermediate the cognovit and the entry of judgment, convey to a third person, the conveyance will be upheld as valid, though executed while the claimant was still in possession.</p>

<p>Appeal from the court of chancery. In May, 1840, Anderson filed his bill against Rapelye, before the vice-chancellor of the first circuit, for the purpose of setting aside an assignment by the complainant to the defendant of a bond and mortgage executed by John Anderson, and also to have delivered up and cancelled a bond given by the complainant and A. A. Remsen guarantying the payment of the bond and mortgage. The facts of the case, as they appeared upon the pleadings and proofs taken in the cause, were substantially as follows : .The complainant held a bond and mortgage against John Anderson for $3000, dated December 8th, 1836, due one year from date, with interest at the rate of seven per cent, per annum, payable half yearly. In June, 1837, the complainant, being in want of money, applied to the defendant to purchase the bond and mortgage, which he agreed to do at a discount of $400 in addition to the interest then due thereon, provided the complainant would give a bond signed by himself and his father-in-law (A. A. Remsen) -guarantying the payment thereof. These terms were agreed to, and a bond was accordingly given in the penalty of $6000, conditioned that, if the mortgagor paid to the defendant the sum of $3000 and interest on the day the mortgage fell due, the bond should be void ; otherwise to remain in full force. The assignment was under seal, and contained a covenant that $3000 was then due and owing on the bond and mortgage. No more than $2600 was in fact paid by the defendant, though the assignment stated the consideration to be $3000. The complainant claimed to be entitled to the relief asked on the ground that the transaction was usurious ; but the assistant vice-chancellor of the first circuit, before whom the cause was originally heard, held otherwise, and dismissed the bill. On appeal to the chancellor, this decision was reversed and a decree made declaring the assignment, and the bond executed simultaneously therewith, inoperative and void, and ordering the same to be delivered up to the complainant and cancelled ; whereupon the defendant appealed to this court. For the opinions delivered by the assistant vice-chancellor, and by the chancellor, see 9 Paige, 484 <e£ seq?</p>

<p>Appeal from chancery, where the respondents were complainants, and the appellant and others were defendants. For the leading facts of the case, together with the opinions of the chancellor and vice-chancellor, see 9 Paige, 52 et seq.} and 3 Echo. Ch. Rep. 20, et seq. The will of John Dover being important to a proper understanding of the principal question, a more full statement of it than that contained in 9 Paige, is here given. After making certain provisions for the wife of Dover, which were declared to be in lieu of dower, the will proceeded as follows : “ Item.—I give and bequeath unto my daughter Anna, (wife of Stephen Stevens,) during the term of her natural life, the rents, issues and profits of one equal undivided third part of all the rest, residue and remainder of my estate, both real and personal, to be paid to her in half-yearly payments &c. ; and after the decease of my said daughter, I do give, deviso and bequeath the said one equal undivided third part of all the said rest, residue and remainder of my estate, both real and personal &c., unto the lawful issue of my said daughter Anna, their heirs, executors, administrators and assigns forever, equally to be divided among them, share and share alike. Item.— I do give and bequeath unto my daughter Christianna (wife of John Wyckoff) during the term of her natural life, the rents, issues and profits of one other equal undivided third part of all the said rest, residue and .remainder of my estate, both real and personal, to be paid to her in half-yearly payments &c.; and after her decease, I do give, devise and bequeath the said last mentioned one equal undivided third part of all the said rest, residue and remainder of my estate, both real and personal, unto the lawful issue of my said daughter Christianna, their heirs, executors, administrators and assigns forever, equally to be divided among them, share and share alike. Item.—I do give, devise and bequeath unto my grandsons William Hertell and John D. Hertell, and to their heirs, executors, administrators and assigns forever, as tenants in common, the remaining one equal undivided third part of all the rest, residue and remainder of my estate, both real and personal, equally to be divided between them, share and share alike, and to be paid to them as they shall respectively attain the age of twenty-one years, the income thereof during their minorities to be applied by my executors, at their discretion, towards the support, maintenance ancf education of my said grandsons. Item. — For the more easy and equal division of my estate, I do hereby fully authorize and empower my executors hereinafter named, whenever they shall think it expedient, to sell and dispose of all or any part of my real estate, for the most moneys that can be gotten for the same, either at private or public sale, and in due form of law to sign, seal, execute and deliver good and sufficient deeds of conveyance for the same to the purchaser or purchasers thereof, his, her or their heirs and assigns forever, in fee simple. Item.—It is my will that all the rest of my personal estate shall be put out at interest by my executors, upon sufficient land security, and kept at interest until the same must be paid as above directed; and lastly, I do nominate,” &c.—concluding with the usual clause appointing executors. The case was argued here by</p>

<p>Appeal from an order of the vice-chancellor of the first circuit. In the course of examining witnesses in this cause before Mr. Cooper, an examiner, at Buffalo, in January, 1841, an original list or memorandum belonging to the complainants below—now the appellants—was produced and- used by them in taking the testimony of S. Daniels, one of their witnesses ; and a copy of it was marked by the examiner as exhibit “ A.” On a subsequent examination at New-York, in March following, the original list was again produced by the complainants, and several witnesses interrogated by the defendants in respect to it; but upon their proposing to examine one Williamson, who made the list, and expressing a desire that he might see it, the complainants’ counsel refused, and withdrew the same. The defendants thereupon moved the vice-chancellor, after due notice to the other party, for an order compelling the production of the original. The complainants’ counsel who attended the examination at Buffalo,'stated, in an affidavit made by him, that he declared, at the time of producing the paper, he did not intend to make the original an exhibit in the cause, but to retain it under his control as a paper belonging to his clients; and that, therefore, a copy only was marked by and left with the examiner, instead of the original. The complainants’ counsel who attended the examination in New-York, stated, in another affidavit, that the paper was produced before the examiner there, out of mere courtesy to the defendants’ counsel, and not as an exhibit. The genuineness of the paper was not disputed, nor was its materiality denied ; but the complainants insisted before the vice-chancellor that it was still under their control, and that the defendants could not be permitted to use it except as matter of favor. The vice-chancellor held otherwise, however, and made an order that the complainants produce the original upon the further examination ; that the defendants be permitted to show the same to their witnesses, and examine in regard thereto, &c. From that order the complainants appealed directly to this court, the chancellor being interested.</p>

<p>Appeal from chancery, where Griswold (the respondent)’ was complainant, and Jackson (the appellant) and Caroline' Dunham, were defendants. The last named defendant having failed to redeem the stock in the Williamsburgh Ferry Company pursuant to the chancellor’s decree in Dunham v. Jackson, (see 6 Wend. 22—25,) the appellant, Jackson, commenced a suit at law against the respondent to recover the amount of money for which that and other stock was pledged, such stock having become entirely valueless. The respondent thereupon filed his bill in this cause, before the vice-chancellor of the first circuit,to restrain the prosecution of the suit at law, and to have the value of the stock, as it stood in March, 1827, applied in ex-tinguishment of his indebtedness. It appeared upon the pleadings and proofs, that, in November, 1826, the respondent borrowed of the appellant $200, and, in February following, borrowed the additional sum of $500. The respondent was also indebted to the appellant on other demands-for money denty in the sum of about $600.- For the purpose of securing the payment of the' whole amount of this-indebtedness, the respondent pledged to' the appellant fifty-one' shares of stock in the Williamsburgh Ferry Company.- Eleven* of these shares were pledged at the time of the $200 loan, and the remainder on making the loan of $500. The stock belonged to Caroline Dunham, for whom the respondent acted as general agent, and for whose benefit the loan of $500 was made; the respondent giving his due-bills in different sums for that amount. The bill alleged that, in March, 1827, the respondent tendered to the appellant the full amount of all the money loaned to him by the appellant, and demanded a re-transfer of the stock, which the appellant refused. The appellant, in his answer, denied the tender, and insisted, among other things, that the decree in the case of Dunham v. Jackson' was a bar to the relief sought by the respondent. The testimony of the principal witness (Mr. Tracy) showed that a valid tender was made, as charged in the bill, within the principle of the cases cited and approved by Marcy, J. in Dunham v. Jackson, (6 Wend. 33, 34.) Such other facts of the case as .are deemed material will be found sufficiently stated in the opinion of Cowen, J. For a more detailed statement, together with the opinion of the vice-chancellor, see 2 Edw. Ch. Rep. 461 et seq. On appeal from the decree of the vice-chancellor, the following opinion was delivered by</p>

Proceedings were instituted before a supreme court commissioner on the application of Shaw, against Whitney, a non-resident debtor, and trustees appointed under the statute. (1 R. S. 764 et seq., 2d ed.) In his application, Shaw claimed that Whitney was indebted to him in the sum of $2500.

D. Burwell, for the defendants, moved for a commission to examine witnesses residing out of the state, with a stay of proceedings until its return. The action was debt on bond, and the affidavit on which the motion was founded stated that the defendants had “ a good and substantial defence to the bond,” See.

Motion to set aside default for want of a plea. The suit was upon a promissory note, a copy of which was served with the declaration, together with a notice that the note was the only cause of action on which the plaintiffs relied.

<p>Where' a motion was made to change the venue from New-York to Livingston county, upon an affidavit of one hundred and sixteen witnesses, and it appeared from the opposing papers that the suit was for a conspiracy in obtaining goods by false pretences—that one of the defendants had declared he wanted the witnesses to prove the good character of his co-defendant—and that the plaintiff had fifteen witnesses residing in Néw-York, where the transaction occurred for which the suit was brought: Held, that the motion was evidently an attempted fraud upon the practice of the court, and should therefore be denied, with costs.</p>

Replevin. The writ was for detaining one canal boat and its furniture, two sorrel horses, two brown horses and two sets of double harness, the goods and chattels of the plaintiff. The coroner, by direction of the plaintiff, seized only .the canal boat and the two sorrel horses ; and the summons served upon the defendant mentioned no other property than that so actually seized.

Costs. The action was for a libel upon Briggs, imputing to him various instances of misconduct, and, among others, malpractice as physician and surgeon for the Auburn State Prison, in the case of one Van Eck, a prisoner. The declaration contained five counts, the third of which related exclusively to the charge of mal-praetice. Most of the remaining counts related to that charge also, but connected it with others, sufficient in themselves to sustain the action.

0. Allen moved to change the venue in this cause on ati affidavit of the defendant that the witnesses were each and every of them material &c., and that without the testimony of each and every of them he could not safely proceed to the trial. objected that the affidavit was insufficient in not stating that the defendant could not safely proceed to the trial of this cause. But,

Taxation of costs. In July, 1842, Van Hovenburgh sued Case in this court, on a demand arising upon contract amounting to upwards of fifty dollars. After the commencement of the suit, proceedings were instituted against the defendant before the recorder of Schenectady, under the “ act to abolish imprisonment for debt” &c..; (Sess. Laws of 31, p. 396, § 3 to 10 ;) and, after a hearing before that officer, the complaint was dismissed.

<p>Redemption of lands. Previous to the 26th of September, 1840, three judgments were obtained in this court in favor of Wood and others, plaintiffs, against Ramsdell, defendant, which judgments were docketed and became liens on the defendant’s land in Genesee county. On the day above mentioned, Rams-dell conveyed the said land to Pringle & Moore, and, on the 9th of January thereafter, it was sold by the sheriff under executions issued upon the said judgments, to the plaintiffs therein. On the first of April following, Pringle & Moore sold a part of the land to Rose; and, on the 6th of January, 1842, Mallory obtained a judgment against Rose and Ramsdell before a justice of the peace, and procured the same to be docketed on the next day after its rendition. By virtue of this judgment, Mallory claimed to redeem the land from the sale under the execution, and, on the 9th of April, 1842, paid to the sheriff the amount for which it had been sold, with interest. The sheriff thereupon executed a deed to Mallory, as a redeeming creditor, and refused, after the expiration of fifteen months from the day of sale, to execute a deed to the plaintiffs in the execution. This motion was therefore made in their behalf for a mandamus to compel the sheriff to execute and deliver such deed.</p> <p>The judgment under which a creditor may redeem must possess two qualities, viz. 1. It should be a lien on the land; and 2. It should be against the execution debtor. (2 R. S. 371, § 51.) Mallory’s judgment had neither of these requisites. Ramsdell was a defendant in it, but it was not a lien on the land as against him, for he had conveyed to Pringle and Wood before the judgment was obtained. And although as against Rose the judgment was a lien on that part of the land which had been previously conveyed to him, yet he was not the individual against whom the execution issued under which the sale took place. Mallory was not, therefore, in a position which would enable him to redeem as a creditor of either Ramsdell or Rose,</p>

Redemption of lands. On the 30th of December, 1840, two lots of land belonging to W. & M. R. Prince were sold by the sheriff of Queens county on six writs of jd. fa.. The lots were sold separately, and were both bid off by Peck and two others.

Double costs. Dockstader, a constable, having taken certain goods in execution, Sammons brought replevin for them in the Montgomery C. P., and recovered judgment.

Re-taxation of costs. The suit was commenced after the act of May 14th, 1840 (Sess. L. ’40, p. 327) went into efféct, and the plaintiff obtained a report of referees in his favor.

moved for a reference on an affidavit sufficient in all respects except that it was sworn to by the attorney, and furnished no reason why it was not made by the party. Whereupon,

Motion to set aside inquest and subsequent proceedings. Mills sued Wells, N. P. Lee and W. M. Lee on a promissory note. Wells and N. P. Lee pleaded non-assumpsit, and the latter gave notice of his discharge as a bankrupt since the making of the note. W. M. Lee suffered default to be entered against him for want of a plea.

Amendment. The plaintiff filed and served a copy of his replication on the 11th of October last, with notice to rejoin. The defendant rejoined on the 21st of November. Nearly two months after, the plaintiff filed and served an amended replication as of course, with notice to rejoin.

<p>Judgment on award. The parties signed and sealed a general submission of their differences to three arbitrators, who made an award in favor of Hughes. Upon this, judgment was immediately perfected in vacation, (a rule of course being entered,) pursuant to the following stipulation contained in the instrument of submission : “ It is hereby mutually agreed that, in case the said award is not paid or fulfilled according to the terms of this agreement, by the person who shall be bound to pay or perform the said award, a judgment in the supreme court of judicature of the people of the state of New York, for the above penalty of $200, shall be forthwith. entered up; and that an execution holding the body of the defendant, in case he has not personal property sufficient to satisfy said award, shall be forthwith issued on said judgment.”</p> <p>moved to set aside the award and subsequent proceedings on affidavits detailing the above facts, and others, tending, as he urged, to impeach the proceedings of the arbitrators. He insisted, especially, that no judgment could be entered except on motion, pursuant to the provisions of 2 R. S. 447, 448, § 9, 14, 2d ed. He cited Anonymous, (5 Wend. 102;) Anonymous, (6 id. 520 ;) Wells v. Lain, (15 id. 99, 103 ;) Farrington v. Hamblin, (12 id. 212 ;) Emmett v. Hoyt, (17 id. 410.)</p> <p>insisted that the affidavits failed to impeach the award on the merits; and to this</p>

<p>If an order of a judge or commissioner be revoked by him, a subsequent application to another commissioner, in reference to the same matter, and in the same stage of the proceedings, is irregular; for a revocation is in effect the same thing as an original refusal.</p> <p>The order of a judge or commissioner cannot be treated as á nullity on the mere ground of its having been improperly or even fraudulently obtained; the remedy of the party in such case being by appeal, motion to supersede, application to revoke &c.</p> <p>After notice of hearing before referees had been given by the plaintiff, the defendant obtained an order staying proceedings till a motion for a commission could be made to a circuit judge; the motion being noticed for a day subsequent to that appointed for the hearing. The order was afterwards revoked, on the plaintiff’s application, and notice thereof given to the defendant’s attorney, who thereupon applied to a commissioner residing in another county, and obtained an or der staying proceedings for the purpose of moving the court to set aside the order of revocation. The plaintiff’s attorney treated the commissioner’s order as a nullity, proceeded to a hearing of the cause, and obtained a report in his favor. Held, on the defendant’s motion to set aside the report, that though the order of the commissioner was irregular, the plaintiff had no right to treat it as a nullity; and the motion was therefore granted, but without costs.</p>

The relators, who were physicians, had, at the request of an overseer of the poor of the town of Little Falls, in Herkimer county, rendered professional services to several paupers, some of whom were entitled to temporary relief pursuant to orders obtained for that purpose under 1 R. S. 633, § 46, 2d ed. The distinction between town and county poor did not, at the time, exist in Herkimer.

Set-off of judgments. In the first entitled cause the plaintiff obtained judgment for $1562,75 on the 2d of July, 1838. In the other cause, judgment was rendered for the defendant on the report of a referee for $1235,49 on the 7th of November, 1842.

Motion to set aside inquest. The action was against Chase, Tracy, McClary and Bigelow, and was commenced by declaration containing the common money counts. A notice was attached to the declaration stating that the suit was instituted to recover the amount due on a promissory note made by Chase and endorsed by the other defendants. Chase and Tracy pleaded the general issue, and Bigelow suffered judgment by default.

A. Humbert, deceased, the administration of whose estate belonged to the relator. Sometime before Humbert’s death, he was arrested in the city of New-York, and held to bail in the sum of $4000 in an action of trover commenced in the superior court of that city. One Boker became his bail and Humbert left with him a note of $2000 as security.

Staying proceedings till the plaintiff attend as a witness. In debt on bond, the defendant interposed and verified by affidavit a plea of usury, giving notice to the plaintiff’s attorney that he should require his (the plaintiff’s) attendance as a witness at the circuit in New-York in March 1841, where the venue was laid. The plaintiff not attending in pursuance of the notice, the judge put off the cause.

The plaintiff recovered judgment in a justice’s court against McDonald, who appealed to the common pleas. The appeal bond was executed by McDonald as principal and by Green and Miles as sureties. Afterwards, this suit was commenced against all the obligors in the bond, the plaintiff declaring in debt for $300, and averring the rendition of a judgment in his favor, on the appeal, of $207,69.

sheriff of the city and county of New-York. The motion was founded on affidavits stating that a judgment in trespass had been recovered against Hart, for the seizure (by his deputy) of the relator’s goods under a fi. fa. j that the judgment had not been satisfied, and that, on the trial of the cause, Hart attempted to justify the seizure as sheriff.

Bankbupt act. On the 28th of July, 1842, the plaintiff instituted proceedings against the defendant, before the recorder of the city of Albany, to obtain satisfaction of a judgment in the manner prescribed by the non-imprisonment act. (Sess, Laws of 1837, p. 396, §3 et seq.) An execution had been previously issued and returned unsatisfied.

<p>This court will not interfere by mandamus to compel a ministerial officer to disobey an injunction, unless it appear to be plainly void for want of jurisdiction.</p> <p>Accordingly, where a judge, acting under the non-imprisonment act, (Sess. Laws of ’31, p. 396, § 3 et seq.,) made out a warrant to commit the defendant pursuant to the 9th section, but, being afterwards served with an injmiction from the district court of the United States restraining further proceedings in the matter, refused to deliver the warrant tobe executed; held, that this court would not compel the delivery by mandamus, no want of jurisdiction in respect to the injunction appearing.</p> <p>The court will not enquire, in such case, whether the injunction was issued improvidently.</p> <p>Semble, that an injunction to restrain the execution of a sentence for crime may be treated as a nullity. Per Cowen, J.</p> <p>The proceeding contemplated by the 3d section of the non-imprisonment act is of a civil and not a criminal nature. Per Cower, J.</p> <p>A mandamus is a prerogative writ which this court may issue or withhold in its discretion. Per Cower, J.</p>

<p>Evidence of a parol agreement is in general inadmissible to qualify a sealed in. strument, or to show a defeasance different from that which the instrument itself expresses. Per Cowen, J.</p> <p>The practice in this state of receiving parol evidence that an absolute deed was in. tended as a mortgage, ought not to extended. Per Cowen, J.</p> <p>Where a defendant moved to set aside a judgment entered up on bond and warrant of attorney, on the ground'that the latter were given in consideration of a promise by the plaintiff to make certain advances of money thereafter, which he had wholly failed to do; held, that the promise being a sufficient consideration to uphold the judgment, the defendant’s remedy was by action for a breach of it, and the motion was therefore denied.</p> <p>Even had the arrangement as to the advance of money been in the nature of a defea sanee, yet, resting in parol merely, it could not have been set up as a ground for interfering with the judgment. Per Cowen, J.</p>

Assault and battery. A verdict having been rendered in this case against one of the defendants, and in favor of the other, the latter perfected judgment against the plaintiff for costs, including the costs of the judgment, and the other defendant made a bill of exceptions. moved to set aside the judgment, on the ground that the cause was still pending and undetermined, and that but one judgment record could be made and filed in the same cause. cited Hallock v. Powell, (2…

<p>Redemption of lands sold on execution. On the 4th of December, 1841, the sheriff of Erie sold certain lands in Buffalo on two judgments against Elisha C. Hickcox, one in favor of Samuel Stevens, and the other in favor of James Brisbane; and Brisbane became the purchaser at $1950. On the 23d of February, 1843, Samuel H. Addington, having three judgments against Hickcox amounting to about $4800, redeemed and became the purchaser of'the land, by presenting the necessary papers and paying to the sheriff the amount of Brisbane’s bid with interest, amounting to $2116,50. There was a judgment against Hickcox in favor of the City Bank of Buffalo which was older than either of those on which Addington redeemed; and, on the 1st of March, 1843, George Newell, receiver of the City Bank, redeemed from the sale by presenting" the necessary papers and paying to the sheriff the amount of Brisbane’s bid with interest—$2120,63. On the third day of the same month, Addington again went to the sheriff for the purpose of redeeming from Newell, and paid to the sheriff the amount claimed to be due ón the judgment in favor of the City Bank, being $1642. Previous to paying the money, Adding-ton had filed a bill against Newell in the court of chancery, alleging that the bank judgment had been satisfied, and obtained an injunction forbidding the sheriff to pay over to Newell the money which Addington might'pay to redeem, until the further order of the court of chancery. Addington first paid the money to the sheriff and took his receipt for the same, and immediately thereafter served the injunction on the sheriff, forbidding his paying over the money to Newell. The sheriff, being of opinion that Addington "had properly redeemed, executed a deed to him on the sixth of March, Newell had previously given notice to the sheriff and to Addington that he should claim the deed, on the ground that Addington had not redeemed.</p> <p>commanding him to execute a deed to Newell as receiver. They insisted that, in consequence of the service of the injunction, there was no redemption by Addington. It was like a conditional or qualified tender, or offering money with one hand, and then snatching it away with the other.</p>

After this suit was commenced, the defendants made application for discharge under the bankrupt act, and both of them were decreed and declared bankrupts by the district court of the U. S., but neither had yet obtained his certificate of discharge.

Road district number 83 in the town of Warwick, Orange county, was formed- from parts of road districts number 37 and 64. At a meeting of the commissioners of highways of the town in March, 1840, held for the purpose of deciding upon applications to alter the districts, they made an order that district number 83 be discontinued.

Witnesses’ fees. On taxation of costs for the New-York 'circuit, the plaintiff made affidavit that the following persons were subpoenaed as witnesses, “ and probably travelled the distance, and actually attended as witnesses the number of days as hereinafter stated, viz.: S. Wolcott &c. [naming nine individuals ;] that two of said witnesses reside two hundred and thirty miles from court, and attended court twenty days each ; that one of said witnesses resides two hundred and…

in this case, upon papers which were sworn to have been served on a deputy of one of the clerks of the supreme court (naming the deputy and clerk) in the clerk’s office; whereupon objected that the proof of service was insufficient, it not appearing that the clerk was absent. But

<p>The appointment of trustees in a proceeding against an absconding or concealed debtor, under 2 R. S. p. 2 et seq., does not preclude him from raising the ques. tion whether the affidavits upon which the attachment issued were sufficient to give the officer jurisdiction.</p> <p>Nor will the debtor be precluded even though he have previously applied for and had a hearing in the common pleas, pursuant to 2 R. S. p. 9, § 43.</p> <p>The case of Hubbell v. Ames (15 Wend. 372) explained; and the reporter’s abstract of it corrected.</p> <p>In order to confer jurisdiction, the affidavits of the two witnesses required by 2 R„ S. p. 3, § 5 must state the facts and circumstances to establish the grounds of the application; mere information and belief will not answer. Per Bron. son, J.</p> <p>If, however, facts and circumstances be stated tending to establish the grounds of the application and fairly calling on the officer for an exercise of his judgment upon the weight of the evidence; though he err in his estimate of it, the proceed, mg will not be void for lack of jurisdiction.</p>

Landlord and sheriff. Jacob L. Lane leaded a brick store in Troy to Henry A. Benton for one year from May 1, 1842, at the annual rent of $500, payable quarterly. On the 1st of August, 1842, Benton sold his goods to the defendant Robinson, who entered and occupied the store. Other persons occupied parts of the building, but upon what terms did not appear.

Mandamus. Dolson & Keyes commenced a suit in this court against Lodowick, the relator, for a demand due upon contract, and afterwards applied to John Brush, a supreme court commissioner, for a warrant to arrest Lodowick pursuant to the non-imprisonment act, (iS'tat. 1831, p. 396,) alleging that he had property or rights in action which he fraudulently concealed; or had assigned, removed or disposed of his property with intent to defraud his creditors ; (§ 4, sub. 2, 3 ;) and…

<p>Where a junior creditor complied with the requisites for redeeming from the purchaser b.y reimbursing the amount of the bid, &c., and, on the same day, a senior creditor who had previously become assignee of the original certificate of sale, presented to the sheriff the proper evidence of that fact and of his right AS creditor; held, that he was entitled to the sheriff’s deed without paying any money.</p> <p>The affidavit of a redeeming creditor as to the amount due on his judgment, though made five days before presenting the papers to the sheriff, is sufficient.</p> <p>Where such creditor is an assignee of the judgment in virtue of which he seeks to redeem, though the statute in terms requires him to present to the sheriff a copy of his assignment &c., (2 R. S. 373, § 6, subd. 2,) it is sufficient if the original be presented. Semble.</p> <p>An acknówledgmeñl of the Assignment, certified by an officer authorized to take acknowledgments of deeds, is not a sufficient verification of it for the pur., pose of redeeming.</p> <p>Where a copy of an assignment was verified by affidavit as follows : “ This de. ponent is the assignee and owner, according to the annexed copy of the transfer thereof by &c., [naming the assignor,] in good.faith, of the said judgmentheld, a sufficient verification, though unskilfully drawn.</p>

<p>Where, for the purpose of redeeming land sold on execution, a judgment creditor paid to the sheriff certain foreign coin, which was received by him at its current value without objection, but which turned out to be legally worth a few cents less; yet held, a valid payment.</p> <p>So, where the payment was made partly in current foreign coin which was not a legal tender.</p> <p>Judgments and decrees entered after the act of 1840 (Sees. L. 40, p. 327) took effect, though recovered in suits commenced before that time, are not liens on real estate unless docketed in the counties where the lands are situated.</p> <p>That part of the act relating to the fees of counsellors, attorneys &c., does not apply to suits commenced before the act went into effect. Per Bronson, J.</p>

<p>Scire facias to revive a judgment for $873,58, which the plaintiffs recovered in this court against John Cronkhite and Henry Springsteen on the 2d day of May, 1835. Ranney and Grove were summoned as terre-tenants of certain lands, and they pleaded, second, that the plaintiffs ought not to have execution &c., because they say, that, on the 21st of October, 1835, the plaintiffs issued a fieri facias on the judgment to the sheriff of Niagara, by virtue of which writ the sheriff on the same day, the damages, costs and charges aforesaid on the goods and chattels, lands and tenements of Cronkhite and Springsteen, caused' to be levied; and this they are ready to verify See. The plaintiffs replied, and the terre-tenants demurred to the replication.</p> <p>Vies, fourth, & fieri facias issued as in the 2d plea, and that afterwards, to wit, on the 18th of April, 1836, the sheriff returned the said writ offi. fa., endorsed by the said sheriff satisfied, to the clerk of this court at Geneva, where the same was duly filed, and the said clerk entered in the docket of the said judgment the satisfaction of the same ; and afterwards and before the issuing of the scire facias, to wit, on the first of May, 1838,. the sajd Wells, Ranney and Henry Grove made a Iona fide purchase, and became possessed in fee simple, and for a valuable consideration by them in good faith paid therefor, of the lands and tenements in the scire facias mentioned whereof they were returned tenants. Yerification.</p> <p>Replication to said fourth plea, that after the making of the said return to the fi. fa., to wit, on the 8th of August, 1838, the said supreme court, by a certain order made in the original action, ordered and granted to the sheriff leave to strike out his return of satisfied endorsed on the fi. fa. then on file, or to alter or amend his said return, or to file a new return to said writ; and under and in pursuance of the order and leave so granted, the sheriff afterwards, to wit, on the 12th of October 1838, did strike out his return of satisfied on the fi. fa., and did make return thereto that the said writ oifi.fa. was returned by him unsatisfied by the order and direction of the plaintiffs. Verification. Demurrer and joinder.</p>

<p>On error from the Oneida C. P. Gruman sued Cary in a justice’s court for the breach of a warranty of soundness on the sale of a horse ; and, after a trial before the justice, he rendered judgment in favor of Gruman, from which Cary appealed to the common pleas. The price paid for the horse was $90, and the breach complained of was a disease in the horse’s eyes. On the trial in the common pleas, after Gruman, the plaintiff, had given evidence tending to prove the warranty and the disease, the defendant, in the course of cross-examining one of the plaintiff’s witnesses, enquired what the horse would have been worth at the time of the sale, if he had been sound ; declaring that one object of the question was, to show the amount of the plaintiff’s damages, if entitled to any, under the following rule, which he contended to be the true one, viz. ££ that the proper measure of damages was the difference between the real value of the horse if sound, and his real value with the defect complained of.” The court, though they received the answer for another purpose, overruled it for the purpose proposed as above, holding the true measure of damages to be, the difference between the price paid, and the value with the defects. The trial proceeded accordingly ; and the jury were charged to govern themselves by this rule.</p> <p>The defendant below took exceptions to the decision and charge ; and, the verdict and judgment being for the plaintiff below, the defendant brought error to this court on the above and other grounds.</p>

<p>Action on the case against the defendant for neglecting bis duty as superintendent of repairs on the Erie canal, in consequence of which the plaintiffs sustained an injury. The first count alleged that the defendant, on the 29th of April, 1842, was, and ever since has been, a superintendent of repairs of the Erie canal, having section number one of the canal committed to his charge; and as such superintendent of repairs it was his duty to keep said section of the canal in good repair, and to remove therefrom all obstructions to the convenient and safe navigation thereof, so that boats and vessels usually navigating the canal might safely and conveniently, and without damage, pass upon and navigate the section. That the plaintiffs were the owners of the canal boat named Angelica, used in navigating the canal for the transportation of goods &c. That a certain other canal boat was, on the said 29th of April, sunk in the waters of the canal in the section thereof under the defendant’s charge, to wit, at Watervliet, in such a position and in such a manner as to obstruct the • navigation of the canal, and render the navigation unsafe and dangerous, of all which the defendant had notice ; and thereupon it became and was the duty of the defendant, as such superintendent, to remove the sunken boat. Yet the defendant, not regarding his duty &c., did not remove the sunken boat, but negligently and carelessly, and contrary to his duty in that behalf, suffered the boat to remain and continue sunk in the canal from the said 29th of April until the 15th of May in the year aforesaid, obstructing and rendering dangerous the navigation &c. By reason whereof the plaintiffs’ boat Angelica, on the 6th of May in the year aforesaid, the boat being then laden with goods, wares &c., of great value, in navigating and passing along the canal at the place aforesaid, ran against and upon 'the sunken boat and was thereby greatly damaged, as were also the goods with which the plaintiffs’ boat was laden, and the plaintiffs’ boat and goods were sunk in the waters of the canal. By reason whereof &c. The second count was substantially like the first.</p> <p>The defendant demurred to the declaration, assigning the following causes : 1. It is not alleged that the defendant was directed by the canal commissioners, or either of them, to make repairs on his section, or to remove the sunken boat; 2. It is not alleged that the defendant had any moneys in his hands for the purpose of making repairs or removing obstructions; 3. It is not alleged that the plaintiffs’ loss was occasioned by the malicious or wilful neglect of the defendant; 4. The defendant, being an agent of the state, is not personally liable to the plaintiffs ; and 5. The defendant being a sub-officer and bound to act under the direction of the canal commissioners, or one of them, he is not liable to the plaintiffs in this action. The plaintiffs joined in demurrer.</p>

<p>4 mere jus precarium, or right resting in courtesy—e. g. an anticipated donatioii from government—is not assignable. Per Cowen, J.</p> <p>Jj. and W., having contracted with the canal commissioners to construct certain bridges on the Chenango canal by the 15th of October, 1836, and having commenced the work, agreed with M. that he should go on and complete it at his own expense, and be entitled to receive from the canal commissioners the com. pensation provided for in the original contract. The work was accordingly completed by M., and he received his pay. Afterwards, an award was made in favor of 11. and W. on account of the original contract, pursuant to an act passed in April, 1836, providing for extra allowances to contractors on the Chenango canal, (Sess. L. ’36, jp. 201,) and one half the sum awarded was paid over to L. Held, in an action against him by M. to recover the money thus received, that the latter had no right to it. Nelson, Ch. J. dissented.</p> <p>Even in the case of a chose in possession, a sale carries no more than the legal right which the vendor had at the time. Per Cowen, J. ts.</p>

<p>In order to maintain an action on a covenant of warranty or for quiet enjoyment in a deed of lands, a lawful eviction in some form must be shown.</p> <p>The eviction, however, heed not be by process of law ; but it is enough that, on a valid claim being made by a third person under title paramount, the plaintiff voluntarily yielded up the possession.</p> <p>Where the plaintiff thus surrenders possession without a legal contest, he assumes the burden of proving that the person entering had title paramount.</p> <p>As a general rule, the consideration clause in a deed of lands is open to explanation by parol proof.</p> <p>But in an action on a covenant of warranty brought by one to whom the grantee in the deed had conveyed ; held, that the grantor was not at liberty to show the consideration paid for the land to be less than the sum expressed in the deed. Otherwise, however, had the action been between the immediate parties to the deed. Semble, per Nelson, Ch. J., and Cowen, J.; Bronson, J. contra. .</p>

<p>Assumpsit, tried at the Montgomery circuit on the 14th of May, 1840, before Willard, C. Judge. The action was by Herrick against Warnick and Borst, on the following note: .</p> <p>“ Port Jackson, Nov. 9th, 1835.</p> <p>Four months after date, for value rec’d, we or either of us ' promise to pay to Palmer Rowland or bearer, eight hundred and fifty dollars, with interest. Martin I. Borst.</p> <p>George Warnick.”</p> <p>The defendants pleaded the general issue, and gave notice of special matter. On the trial, the defence relied on was this: The note was given for money lent by Rowland, the payee, to Borst, and Warnick signed it merely as Borst’s surety. In the fall of 1837, Warnick called on Rowland, who was still the holder and owner of the note, and requested him to collect it; adding, that he (Warnick) could not consent to stand any longer as surety upon it. Rowland made no effort to collect the note, and, on the 12th of September, 1839, he transferred it to Herrick, the plaintiff. Shortly after the transfer, and previous to the commencement of this suit, Borst assigned all his property for the benefit of creditors.</p> <p>There was 'no doubt that Borst, when he made this assignment, was utterly insolvent. The question was, whether he had become insolvent before Warnick requested Rowland to prosecute the note. On this point much evidence was adduced by the respective parties, tending to show the amount Borst owed in 1837, the state of his property, the value of it, &c.</p> <p>The circuit judge charged the jury that, if Borst was insolvent when the request to prosecute was made in 1837, then the defence had failed ; but if he was solvent at that time, and had since become insolvent, the plaintiff could not recover. The judge further charged that, “ the term solvent, in law, meant that a man was able to pay all his debts from his own means, or that his property was in such a situation that all his debts might be collected out of it by legal process.” The defendants’ counsel excepted, and requested the judge to charge that, should the jury find Borst to have been in such a situation, when the notice to prosecute was given, that the note might and would, ,in all probability, have been collected by due course of law out of his property, Warnick was not liable. The judge refused so to charge, and the defendants’ counsel again excepted. Verdict in favor of the plaintiff for $814,95— the balance due upon the note. ■ The defendants now moved for a new trial on a bill of exceptions.</p> <p>insisted that the circuit judge erred in charging the jury as he did, and in refusing to charge as requested. He cited and commented on King v. Baldwin, (17 John. Rep. 384;) Pain v. Packard, (13 id. 174 ;) The People v. Jansen, (7 id. 332 ;) Ruggles v. Holden, (3 Wend. 216 5) Peel v. Tutlock, (1 Bos. & Pull. 419 ;) Speiglemyer v. Crawford, (6 Paige, 254, 260 ;) Fulton v. Matthews, (15 John. Rep. 433, 4;) The Manchester Iron Man. Co. v. Sweeting, (10 Wend. 162 ;) Huffman v. Hulbert, (13 id. 377, 8 ;) Thelusson v. Smith, (2 Wheat. 396 ;) United States v. Hooe, (3 Crunch, 73, 91;) Prince v. Bartlett, (8 id. 431.)</p> <p>reviewed the cases referred to by the defendants’ counsel, and cited the following additional authorities: Shone v. Lucas, (3 Dowl, & Ryl. 218 ;) Baley v. Schofield, (1 Maule & Sel. 338;) Warner v. Beardsley, (8 Wend. 194;) 2 Stark. Ev. 777, note (1), 6th Am. ed., and the cases there cited; The People v. Russell, (4 Wend. 570 ;) Ingr. on Insolv. 9, last ed.</p>