Volume 4 — Wendell's New York Reports

<p>Error from the supreme court. In 1813 the plaintiff became the owner of a water lot in the city of Albany, which in 1804 was granted by the commissioners of the land office of this state to one W. Quackenboss, who was the owner of a lot extending from North Market-street to the Hudson River, which water lot was land under water, adjoining Quackenboss’ lot on the shore, and extending the whole width of his lot, which was about 53 feet, east into the river about 250 feet. The grant to Quackenboss was made by virtue of a general act of the legislature, enacted the 24th March, 1801, and reenacted in 1813, (1 Revised Laws of 1813, page 293,) whereby the 'commissioners of the land office were authorized to grant so much of the lands under the waters of navigable rivers as they should deem necessary to promote the commerce of the state, providing however that no such grant should be made to any person whatever other than the proprietor or proprietors of the adjacent lands. The plaintiff filled up the lot covered with water, and constructed a wharf used for the reception and piling of lumber, viz. boards and plank.</p> <p>In 1824 a pier was constructed in the Hudson River, extending from a dock north of the plaintiff’s lot about 1500 feet, called the Arsenal dock, to the foot of Hamilton-street, about 2800 feet south of the plaintiff’s lot, leaving a basin between the pier and the main land, into which the great Western and Northern Canals, after forming a junction, empty. The work was commenced in 1823. In its progress two temporary bridges were erected for the more convenient transportation of earth required for the filling in of the pier, on of which was placed north and the other south of the plaintiff’s wharf; and after the pier was completed, two permanent draw bridges were erected from the shore to the pier, one at the foot of Columbia-street, and the other at the foot of State-street, both south of the plaintiff’s lot. At the south end of the basin is the outlet into the river where a sloop lock is constructed, the gates of which however are not shut, and have never been closed but upon one occasion. , This work was constructed under the authority of an act of the legislature, passed the 5th April, 1823, (Statutes, vol. 6, b. 128,) whereby a number of persons were appointed a board of commissioners, authorized to raise by subscription a sum of money to ,be expended in the construction of a mok or pier in the Hudson River, within the bounds of the city of Albany and opposite to the docks fronting the harbor, so as to comprise a basin extending from the State Arsenal dock to a point opposite to a dock below Hamilton-street, for the accommodation of canal boats, vessels and other ciaft and rafts, of lumber. By the provisions of this act, the commissioners named therein were authorized to adopt all such measures as they might deem necessary and proper for the attainment of the object contemplated by the act, and to appoint from their number three acting commissioners, one of whom was to be designated superintendant, and to make contracts for materials, labor, &c. in the construction of the works. They were required to erect three bridges whenever, in the opinion of the canal commissioners, the public convenience demanded it: two at the termination of streets from the shore to the pier, and the other over the sloop lock, each to be constructed with a draw, so as to admit of the passage of vessels and boats ; and when the mole or pier was finished, the commissioners of the land office were required to grant to the commissioners named in the act, or to the survivors of them as joint tenants, the land under the water of the Hudson River occupied by the mole or pier and sloop lock. The act fixes the wharfage, upon all vessels entering the basin from the river, at double the rate then charged by the owners of the docks encompassed by the pier, one half of which is given to the proprietors of the pier, who are also authorized to charge the same wharfage on vessels lying on the east side of the pier that was then charged by the owners of the docks, viz. singk wharfage. After receiving the grant from the land office, the commissioners appointed by the act were required to divide the pier into lots forty feet in width, and to sell the same at public auction, dividing the proceeds among the subscribers to the fund raised for the construction of the . works. The commissioners were further required to construct a sloop lock at the southern termination of the basin, with the approbation of the canal commissioners, who, on the completion of the same, were directed to charge tolls on canal boats, die. computing thé entire length of the basin in the same manner as if it were part of the canal; and the increase of tolls paid into the treasury of the state in consequence of such extension of the canal, was directed to be paid to the proprietors of the pier to be divided among them. Provision was made for the assessment of damages to lands adjacent to the basin, overflowed with water by reason of the erection of the pier and lock, and the consent of the corporation of Albany was required to be obtained and filed. The only condition annexed to the act was, that if the legislature should within five years make provision by law for the re-payment to the commissioners of the amount' expended in erecting the works, then the grant was to be void; which condition was relinquished or discharged by act of the legislature passed the 20th April, 1825.</p> <p>In May, 1825, the plaintiff brought an action on the case against the defendants, who were the acting commissioners for the construction of the pier, die. His declaration contained five counts ; in the first he stated, that at, die. he was seised in his demesne as of fee of and in a certain wharf adjoining the liver Hudson, and had the free and uninterrupted navigable communication to and from the said wharf unto the river with sloops,' &c., yet the said defendants well knowing, die. but contriving, die. on, die. erected a bridge without a draw across a part of the Hudson and continued the same, whereby, die. In the second count he charges simply the erection of a bridge, whereby, &c. In the third count he charges the erection of a bridge without a draw to a certain mole or pier, whereby, die. In the fourth count he charges the erection of a bridge without a draw, with a lock appurtenant thereto, and also the keeping and continuing the said'bridge together with the pier and lock, whereby, die. In the fifth, count he charges the erection of a lock or gate with a bridge appurtenent thereto, between the wharf of him, the plaintiff, and a dock, called the steam-boat dock, and that the defendants fastened and shut up the said lock or gate, &c. The defendants pleaded, 1. Non cul; 2. As to the keeping and continuing the mole or pier and the lock and gate, with the bridge appurtenant thereto, the same had been constructed and were continued in pursuance of the authority conferred by the act of 1823, authorizing the construction of the basin; that the fee of the soil forming the foundation or base of the mole or pier and lock did at the time of the passage of the act remain vested in the people of the state and that the defendants, in the character and capacity of public servants and in conformity with the provisions of the act, having been duly appointed acting commisioners, had constructed the mole or pier and lock, and continued the same; 3. 'Another plea substantially the same as the second. The plaintiff replied, setting forth the act of 1801, reenacted in 1813, the grant to Quackenboss in 1804, the conveyance to himself in 1813, and the erection of a wharf by him ; that from the 1st October, 1816, up to the time of the grievances, &c. sloops, &c. were entitled to free and unobstructed navigation to and from the said wharf, into, upon and along the river and'to every part of the same, subject only to the payment to the plaintiff of a fair and reasonable wharfage if he thought proper to exact it; but that now the mole or pier encircles or surrounds the wharf on the side of the river, and excludes all communication by sloops, &c. between the wharf and river, except through the sloop-lock, arid diverts the water of the river from flowing to the wharf of the plaintiff in the usual and accustomed way; averring that the mole or pier had been erected contrary to the true intent and meaning of the act of 1801, re-enacted in 1813; and that by means thereof and of the sloop lock with the bridge appurtenant thereto, he, the plaintiff, had sustained damage as in Iris declaration mentioned, in that by means thereof he was prevented and hindred from having a free and unobstructed navigable communication, &c. To this replication the defendants demurred, and the plaintiff joined.</p> <p>The cause came on to trial on the issue of fact, at the Albany circuit in February, 1826, before the Hon. William A. Duer, than one of the circuit judges. The facts herein before stated were shewn. In addition it appeared, that before the erection of the pier the plaintiff’s wharf was used for the piling of lumber, viz. boards and plank, and since its erection the wharf is no longer used for that purpose ; that three fourths of the lumber which now comes to Albany is piled on the pier; that vessels loaded with lumber or hay cannot pass through the lock ; that the plaintiff, before the pier was built, received a rent of from $1,50 to $2 per foot for his wharf; that the pier, sloop-lock and bridges have reduced the annual value of his wharf one half; and that during the year 1824 his wharf was vacant and unoccupied. The plaintiff also produced evidence to shew the agency of the defendants in the erection of the temporary bridges, insisting that at all events he was entitled to recover for the damage sustained by the erection of them.</p> <p>The plaintiff having rested, the judge at the circuit, on the motion of the defendants, ordered the plaintiff to be nonsuited. The plaintiff excepted to the opinion pronounced by the judge, and the cause was heard before the supreme court on the bill of exceptions and on the demurrer to the replication, which court refused to grant a new trial, and gave judgment for the defendants on the demerrer. (See opinion of court, 8 Cowen, 146.) The plaintiff sued out a writ of error.</p>

<p>Error from the supreme court. The action in the supreme court was on a policy of insurance on the cargo of the brig American from Rio Grande to New-York, there to be safely landed. The policy contained the usual memorandum, warranting skins and hides, <fc. free from average unless general. The vessel arrived in safety at the quarantine ground, New-York, in August, 1823, laden with 3605 ox and and cow hides and 27,714 horns. From the invoice, it appeared the hides were purchased in lots, at different prices, and it was not shewn that they were put up or shipped in packages. At the quarantine ground, 2201 hides were put on board a lighter to be carried to Brooklyn, the usual place of deposits for hides. The hold of the vessel was filled with them and the remainder were on deck, rising about a foot above the railing of the vessel. When midway the harbor, between the quarantine ground and Brooklyn, a violent flaw of wind struck the lighter and threw her on her broadside, whereby 797 of the hides slipped from the deck and were lost. The master testified that the lighter was under the control of the health officer at the quarantine; that he had carried hides in the same vessel for many years, having as many and more hides on board and on the deck than he had at the time of the loss, and that he had never met with a loss before. The residue of the hides were safely delivered at Brooklyn. The sum insured was $8000, and premium 1-J-per cent. At the trial of the cause, the plaintiff was non-suited; the plaintiff excepted, and on a motion to the supreme court to set aside the nonsuit, that court refused so to do, and gave judgment for the defendants, upon which occasion the following opinion was pronounced: “The articles insured in this case were what are termed memorandum articles ; a part were totally lost, and the plaintiff has brought his action to recover as for a total loss of such part. The English authorities are in favor of the right of recovery, but this point has already been decided otherwise by the courts in this country, and such decisions remain unshaken. 'We consider the case of Guerlain v. The Columbian Insurance Company, decided in this court, (7 Johns. R. 527,) as an authority in favor of the defendants, and without expressing an opinion as to the soundness of the view which the court took of the subject in that case, we feel bound to follow that decisión as authority until it shall have been reversed, which it is the province of the court of errors and not of this court to do. The defendants must therefore have judgment.” Judgment was entered accordingly, which was brought into this court by writ of error.</p>

Error from the supreme court. Center sued the American Insurance Company on a policy of insurance on the freight of the ship Pallas on a voyage from New-Orleans to Havre. The same company had also insured the ship which was valued at $10,000; the freight was valued at $6000. On the 22d November, 1824, the ship sailed from New-Orleans with a full cargo of cotton on board, the freight of which, if earned, would have amounted to $7627,37.

Error from the supreme court. The action in the supreme court was an action of ejectment for the recovery of land in the county of Steuben.

Error from the supreme court. The action in the supreme court was on a policy of insurance, dated the 2d February, 1818, on the cargo of the brig Sphinx, from Alexandria in the district of Columbia to Canton, and at and from thence back to Alexandria.

<p>When an erroneous judgment is recovered, and the amount thereof collected, and such judgment is subsequently reversed for defect of form merely, and restitution and costs of reversal awarded to the defendant in the original judgment, such defendant cannot plead the payment made by him on the erroneous judgment in bar to a second suit for the original cause of action.</p> <p>On reversal in the court for the correction of errors of a judgment of the supreme court, rendered on a judgment removed into that court from the common pleas, such judgment is given as ought to have been given in the supreme court.</p>

<p>Error from the supreme court. Wilder and Hastings sued Fondey and Winne in the supreme court in a qui tam action, to recover the penalty given by the fourth section of the statute of frauds, (1 R. L. 76.) The declaration contained two counts. In the first the defendants were charged with having obtained a judgment against one Stephen Fondey, by fraud and collusion with him, with the intent to delay, hinder and defraud the plaintiffs of their just and lawful action, demand and damages, which on the 23d January, 1824, they put in use, as true and simple, and had Iona fide and upon good consideration. The plaintiffs averred that on the 15th October, 1823, Stephen Fondey was indebted to them for goods sold and delivered; that on the 20th October, 1823, they commenced a suit against him by capias ad respondendum, upon which he was arrested, and that in February, 1824, they obtained a judgment against him for $542, 97 ; and that, at the time of the commencement of the suit .and until the 23d January, 1824, he owned and possessed divers goods and chattels of great value, to wit, of the value of $6000. The judgment of the defendants against Stephen Fondey was averred to have been obtained in October, 1824, for $12,000 debt and $14,44 damages. In the second count, the indebtedness of Stephen Fondey, the commencement of the suit by the plaintiffs, the judgment obtained by them, and the judgment obtained by the defendants, were set forth. It was then averred, that on the 1st November, 1823, the defendants sued out a test. fi. fa. on their judgment, returnable in February then next, which, on the 23d January, 1824, was delivered to the sheriff of Ontario, who was directed to levy $6000 debt and $17,48 costs and who by virtue thereof seized and took the goods and chattels of the defendant therein, of great value, to wit, of the value of $6000, and sold the same at auction; which execution it was alleged was devised and contrived of malice, fraud, &c. between the plaintiffs therein and the defendant, to the end, purpose and intent to delay, hinder and defraud the plaintiffs in this suit (Wilder and Hastings) of their just and lawful action, demand and damages, &c.; and that on the 23d January, 1824, the defendants (Fondey and Winne) willingly and wittingly put in use the said execution as true, &c. The defendants pleaded not guilty.</p> <p>On the trial of the cause, the plaintiffs proved their judgment against Stephen Fondey, and the issuing of a test.fi. fa. thereon, tested in February, and returnable in May, 1824, which was shown to have been delivered to the sheriff of Ontario on the 24th February, 1824, and to have been returned nulla bona. They also shewed the judgment in favor of the defendants against the same defendant, docketed on the 23d November, 1823, which appeared to have been entered on a bond and warrant bearing date the 6th November, 1821; the issuing of the execution thereon and delivery to the sheriff of Ontario on the 23d February, 1824; a levy by virtue thereof on the property of Stephen Fondey; and a sale of the property on the 30th January, 1824. The deputy sheriff who sold the'property testified, that when he levied on the property of Stephen Fondey, he (Fondey) was engaged in mercantile business ; that he took no inventory of the goods in the store, but shut it up and left the key with one Watson, (who he was, or how connected with either of the parties, was not shewn,) from whom or from Stephen Fondey he received the key on the day of sale; that the principal part of yle g00(js 0f Stephen Fondey were bought in by agents of the plaintiffs in the execution, and that the amount of their purchases, viz. $980, was endorsed by them on the execution, and that the residue of the sales amounted to only $32,56.</p> <p>The counsel for the defendants objected to the evidence of the deputy sheriff as insufficient to sustain the action, contending that any evidence in relation to the execution and sale, without proving the judgment upon which it issued to be covinous and fraudulent, was immaterial and unavailing. The circuit judge decided that the plaintiffs could not sustain their action without proving the defendants’ judgment against Stephen Fondey to be feigned, covinous and fraudulent; and that without such proof, the evidence of the deputy sheriff relative to the execution and the sale under it was immaterial and unavaling. The counsel for the plaintiffs then offered (as stated in the bill of exceptions) “ proof relative to the proceedings under the execution; to shew the fraudulent intent of the defendants in entering their judgment against Stephen Fondey.” This being objected to by the defendants was rejected by the judge, to which decisions the plaintiffs excepted ; whereupon the plaintiffs were nonsuited.</p> <p>The supreme court, on application to them, refused to set aside the nonsuit, and gave judgment for the defendants, considering the question raised in the cause as substantially decided by them, when on the application of the defendants they had granted a new trial after a verdict obtained by the plaintiffs. For the opinion of the court delivered upon that occasion, see 6 Co wen, 284. The plaintiff sued out a writ or error.</p>

<p>Error from the supreme court. Root sued King and Verplank, editors of the New-York American, a newspaper printed in the city of New-York, for a libel published in that paper. The libel was in the following words :</p> <p>“ Lieutenant Governor Root.—It has been denied, we understand, by the Argus” &c., “in answer to some strictures on the subject in an Albany paper, that on the afternoon of his famous decision of order, Mr. Root was intoxicated ; and the charge is treated as calumnious,” &c.</p> <p>“The facts are shortly these ; We speak only what we saw; and as it is a matter of some public concern, that the presiding officer of our senate should not continue to be what Mr. Root is, we speak without hesitation or reserve.</p> <p>“ The house of assembly having sent to the senate the resolution declaring the expediency of passing, at the then session, an electoral law, it was anticipated that some interesting proceedings would, in consequence, be had in that body. Accordingly, when it met at five o’clock in the afternoon, to which hour it had in the forenoon, previously to the passage of the resolution in the assembly, adjourned, a great concourse of citizens, and of strangers, from all parts of our country, crowded its floor, lobbies and gallery. When the lieutenant governor, at the hour named, advanced through the centre of the apartment towards his chair, there was in his appearance, manner, and walk, something that excited every one’s observation. He reached his station, however, and calling the members to order, informed them that there was a message from the assembly, which the clerk then read. A dead silence ensued. Lieutenant governor Root, holding on to each arm of his chair, looked round with inflamed face, with blood-shot eyes, and half open mouth, and with an expression altogether so stolid and drunken, as in any other situation, and under other circumstances, could not have failed to excite the derision of all present.</p> <p>“ He was evidently expecting some motion previously concerted, probably in order to enable him to pour forth Iris diatribe with which he was laboring; but none such was made, and he, therefore, was compelled to remark, ‘ the chair has no observations to offer, unless some motion be proposed.’ Thereupon, it was moved by Mr. Burt, we believe, at any rate by some one opposed to the faction, that the senate concur in the resolution sent from the assembly.’</p> <p>“ This furnished the spark to the combustibles smouldering in the breast of the lieutenant governor; instantly he essayed to rise, and by the all-important aid of the arms of his chair and his desk in front, he did rise, and stood for a moment, as if in preparation, silent before several hundreds of his fellow citizens, an object, from his appearance and manner, we will venture to say, of loathing and disgust to every unprejuf[iced man among them; unwashed, unshaven, haggard, the tobacco juice trickling from the corners of his mouth to be wiped away by his coat sleeve; with unsteady footing, this second officer of the great state of New-York, commenced his address to the senate. It is known that the presiding officer of this body has no other than a casting vote, and no right at all to speak. He may, however, assign reasons for any decision he makes ; and under this shallow pretext, Mr. Root uttered a long and labored vindication, not only of the course he was about to take in declaring the motion for concurrence out of order, but of the whole course of proceedings of the senate; and then launched forth into a regular phillippic against the governor and assembly, whom he charged with vying with each other in the race of popularity. It was the harangue of an intemperate demagogue, blind with passion and rum. As such it was heard by all impartial men: and our only astonishment was, that the respectable members of the senate could sit still, and permit their presiding officer thus to disgrace himself and them. He should have been called to order, and compelled to sit down. He was doing what he had no more right to do than any grovelling sot from the public kennel. He was out of order in presuming to address the senate at all; but to address them in his then state, and in the terms he did, was outraging all order, decency and forbearance.”</p> <p>The defendants pleaded the general issue, to which they attached a notice in these words, to wit: “ Sir: Take notice, that according to the statute in such case made and provided, the defendants in this case will insist upon and give in evidence in bar of the plaintiff’s action at the trial of this cause, that on the fifth day of August, in the year of our Lord one thousand eight hundred and twenty four, the said plaintiff did not conduct, demean and deport himself as lieutenant governor of the state of New-York, and president of the senate as aforesaid, properly, orderly, decently and soberly. And they will further give in evidence that the said plaintiff, at the time and place aforesaid, was intoxicated and drunk, a disgusting and loathsome object; and that there was something in his air and manner that excited every one’s observation as he advanced towards the chair in the senate chamber. And they will further give in evidence that at the time and place aforosaid the said plaintiff was acting as president of the senate as aforesaid, and that the plaintiff, when acting in that capacity, by the ordinary rules of that body was not qualified to address the senate in the manner that he did; that at the time and place aforesaid the said plaintiff made a harangue very discreditable to the station of president as aforesaid, and that his conduct and appearance on the occasion aforesaid were derogatory to the said station, and such as to create a belief that the said plaintiff was intoxicated. And the said defendants will further give in evidence that during the month of August aforesaid a session of the legislature was held at Albany, to wit, at Delhi, in the county of Delaware; and that at the said session, viz. on the said fifth day of August, a resolution, which had received the sanction of the house of assembly of the state of New-York, was sent to the said senate for its concurrence, and that upon a motion being made in the said senate for its concurrence, the said plaintiff declared the said motion to be out of order, and uttered a violent harangue on that occasion, in which the said plaintiff prostituted the dignity of his station; and that the conduct and appearance of the said plaintiff on the occasion last aforesaid were such as to induce the belief that he the said plaintiff was intoxicated, and were highly disgraceful to himself and to the station of the said plaintiff, and were such as to warrant the charges made against the said plaintiff in the said alleged libel. And they will further give in evidence that the matter charged as libellous in the said supposed libel is true ; and further, that the said supposed libel was published with good motives and for justifiable ends. And they will further give in evidence that the said plaintiff was often drunk and intoxicated when in the discharge of his legislative duties, and that the said plaintiff has been often drunk and intoxicated when acting as president of the senate aforesaid, and that the said plaintiff is an habitual drunkard.”</p> <p>The cause was tried at the Delaware circuit in June, 1826, before the Hon. Samuel R. Betts, then one of the circuit judges. The publication of the alleged libel was admitted, and that it was written by Charles King, one of the defendants. A number of witnesses were examined as well on the part of the defendants as on the part of the plaintiff as to the conduct, condition, manner and appearance of the plaintiff upon the occasion alluded to in the publication. The testimony of these witnesses it is deemed unnecessary to state, as the substance of it is given in the charge of the circuit judge, stated below. On the cross-examination of one of the plaintiff’s witnesses, he was asked as to his inexperience of the general habits of the plaintiff for temperance, which inquiry was objected to, and the judge decided that evidence of the plaintiff’s general habit was inadmissible. Another question put to tins same witness, viz. how often he had seen the plaintiff intoxicated, and to what degree, was also objected to and overruled; to which decisions the defendants excepted.</p> <p>The evidence on both sides being closed, the counsel for the defendants did insist, that the occupation of tho defendants, the plaintiff’s official station, the remarks themselves, and the proof offered in support thereof, made out a sufficient justification of the alleged libel, and showed a good and sufficient motive for them publication; that the current opinion and belief at the time in Albany, and amongst the spectators in the senate, the fifth of August, eighteen hundred and twenty-four, justified the remarks; or that if a verdict should be found for the plaintiff, the malice of the publication was taken away, and only nominal damages could be awarded; that the belief of the defendants in the truth of the charge was proved by the evidence, and did away the presumption of malice; that the general character of the plaintiff for intemperance was such, that no injury was sustained by the publication in question, and only nominal damages should be awarded, and prayed his honor the judge to charge the jury accordingly.</p>

<p>A testamentary paper found in an iron chest among valuable papers of a person deceased without signature, having an attestation clause without witnesses, written by the deceased with his name in the beginning thereof, in a fair hand, engrossed on conveyancing paper, with a seal attached thereto, evincing much deliberation and foresight in its provisions and disposition of both real and personal propertyto a large amount, according to the common law as generally understood and received as well in England as in this country on 19th April, 1775, when the common law was adopted as part of the law of this state, is a good and valid will of the personal estate therein mentioned.</p> <p>According to the modern decisions of the ecclesiastical courts of England, if there be an attestation clause to a paper propounded as a will, and it be unattested by witnesses, such clause raises a presumption against the paper as furnishing proof that a further act was contemplated to be done ; still such presumption is but slight, and may be rebutted by slight cir cumstances.</p> <p>With us, since 1st January, 1830, (when the Revised Statutes went into operation,) a will of personal as well as of real property is of no validity, unless, it be subscribed by the testator at the end of the will, in the pre. sence of at least two attesting witnesses.</p>

Motion to dismiss appeal. On the 18th September, 1827, Thomas R. Hyer exhibited his bill in the court of chaneery against the respondent and others, praying an account of the rents, issues and profits, and of the proceeds of. the sales of certain real estate late of Gerrit Hyer, of the city of New-York, deceased.

Motion to dismiss appeal. In September, 1826, Chapman filed a bill in chancery against the respondents, stating, that Hammersley and himself as trustees for Jessy Ann Dyett, and her husband Joshua Dyett, purchased and became seised in May, 1823, of a certain manufacturing establishment, called the Dutchess Cotton Factory, subject to a certain agreement between the appellant and the respondents.

Error from the supreme court. . Lydia Starr as administratrix of Samuel Starr, deceased, declared against Jacob Houghton in the supreme court in debt.

Motion to vacate decree of affirmance. In May, 1829, a final decree was pronounced in chancery in favor of the respondents here, the defendants below ; the complainants below appealed, and the cause was set down for argument at the session of this court in September last; the court refused to heat it, in consequence of the indisposition of one of the counsel fox the appellants, and when subsequently other counsel were prepared to ax-guc, the court adjourned the further…

<p>A cause will not be heard on writs of error, unless thé bill of exceptions’, if there be one, is entered on the record.</p>

Motion to set aside report of admeasurers of dower, appointed by a surrogate on the petition of a widow to have her dower assigned in the estate of her deceased husband. Various objections were urged to the report; amongst others, that the commissioner before whom two of the admeasurers were sworn, was the attorney of the widow in the proceeding before the surrogate.

At the last term, a rule was granted requiring the defendant to deposit in the clerk’s office of the county of Chenango a certain indenture of lease alleged to be in his possession, to enable the plaintiffs to declare thereon, or to shew cause by the first day of this term why an attachment should not issue. Notice having been duly served, the attachment was now asked for.

<p>Where there is a demurrer in a cause, the party whose pleading is demurred to, may notice the cause for argument for the frivolousness of the demurrer, although the party demurring has omitted to make up and serve the demurrer books. On the cause being moved, the court will not hear the objection that the demurrer books have not been made up and served. The remedy of the party demurring was to have moved the court to strike the cause from the calendar.</p>

Motion that referees sign a case containing a history of a trial before them.

The relator was sued in the Monroe C. P. The declaration contained counts on a promissory note, and for work, labor and services by the plaintiffs as physicians and surgeons, and the common money counts. A bill of particulars was delivered, containing sundry charges for visits, medical attendance and medicine, but did not specify the note declared on. The cause was referred, and the referees received in evidence the note, though objected to by the defendant.

Question of costs. The defendants were sued in an action for false imprisonment in arresting the plaintiff on a warrant issued on a criminal charge. The defendants justified, one as the officer malting the arrest, and the others as aiding and assisting in the same.

A judgment was rendered against the relator in a justice’s court for $1606 damages and $4,88 costs. The relator executed an appeal bond in the penalty of $42,08, reciting the damages and costs as above stated, and delivered the same to the justice, and paid him all the costs he demanded, he refusing, however, to take TVo, the charge for execution included in the bill of $4,88 costs. In making his return to the common pleas the justice stated the costs at only 4,69.

Judge Hayden, a commissioner ex officio, to execute the duties of a judge of this court at chambers refused to endorse his allowance of an appeal from a judgment rendered in a justice’s court, because the affidavit setting forth the proceedings before the justice was not made within ten days after the rendering of the judgment, which was on the 22d January, and the affidavit was not made until the 4th February.

Motion to stay proceedings until costs of a former suit be paid. The plaintiff in the former suit neglected to declare, and judgment of non-pross was entered against him. A casa, was issued for the costs of such judgment, on which the plaintiff was arrested and now remains in custody. The new suit is for the same cause of action.

Privilege of a counsellor of this court and a member of the legislature.

<p>The venue in a cause commenced in the superior court will not be changed in ordinary cases, after a trial had.</p>

<p>A writ of error coram vobis will be quashed, where the names of the parties in the judgment sought to be reversed are not truly stated.</p>

The common pleas of Herkimer dismissed an appeal for a variance between the amount of the judgment rendered and the sum specified in the appeal bond, notwithstanding that the appellant offered to amend the bond and make it conformable to the judgment. The judgment was rendered in November last, and the notice to dismiss the appeal was made and granted in February. A mandamus was asked, directing the common pleas to vacate the rule dismissing the appeal.

<p>Where a judgment of reversal on a writ error obtained by default, is set aside on payment of costs, no other than the costs of the term and of the subsequent proceedings can be charged,</p>

Trial by record. The declaration was in debt on recognizance of bail, setting forth a judgment against the principal for #98,90. The defendant pleaded nul tiel record as to the judgment. The record produced was for #98,96. The defendant insisted upon the variance.

Motion to change venue from Rensselaer to Schenectady, the defendant having 12 witnesses residing in Schenectady. The plaintiffs having 14 witnesses in Albany, and stipulate to pay all necessary expences of the defendant’s witnesses in attending the Rensselaer circuit.

Order to stay waste. An order to restrain the committing of waste was applied for in this case, the plaintiff having commenced an ejectment for the recovery of about a third of a lot of land containing about 1700 acres, principally valuable on account of its timber. The defendants are in possession, claiming the lot as their own, and are cutting and carrying away the timber. Notice of the application was not given to the defendants.

Security for costs. This cause was referred to referrees at the last August term. In January, on an affidavit that the plaintiff since the commencement of the suit had obtained a discharge from his debts as an insolvent debtor, an order was obtained that the plaintiff file security for costs in ten days, or shew cause in twenty ; which order was made absolute in March, and the proceedings of the plaintiff stayed. The defendant now moved for judgment as in case of nonsuit.

In March, 1829, a judgment was obtained against the relator before a justice for #50 damages and #5 costs. He appealed, and on the trial of the cause in the common pleas in February last, the plaintiff recovered a verdict for #32,10 damages. The appellant entered a rule for costs, which were taxed at #44,65, and a judgment was entered in his favor for the balance. The common pleas vacated the rule for costs entered by the appellant and gave costs to the appellee.

Writ of right. This suit was commenced previous to the first of January last. At the January term an imparlance was granted to the tenant until the first day of this term, when he appeared and pleaded, vouching to warranty the heirs of his grantor, and praying a summons ad warrantizandum returnable at the next term. A question was submitted, whether the plea could be received.

Double replication. To a plea of set off the plaintiff replied, 1. Nil debet; 2. The statute of limitations, alleging the second plea to he interposed by ham of the court first had and obtained. On an affidavit that no rule had been received allowing a double replication, the defendant moved that one of the replications be stricken out. The plaintiff shewed it was important to his rights that he should be allowed to retain both replications.

A certiorari was issued out of and under the seal of the court of common pleas of Onondaga county to remove into that court a judgment against the relator, rendered by a justice of the peace of that county. On the return of the certiorari, the common pleas quashed it on the ground that it ought to have issued from this court, A mandamus was now asked for to vacate the rule quash-In the certiorari.

Motion to quash certiorari. A complaint in writing, duly verified, was made to a judge of the Herkimer county courts, for a forcible entry and detainer. The judge issued a precept to summon a jury to enquire as to the complaint made, and notice of the proceeding was given to the parties complained of.

<p>It seems, that after 12 days demand of oyer by a plaintiff of a release pleaded by the defendant, he may treat the plea as a nullity, and enter the defendant’s default.</p>

A writ of right was sued out of and returnable in the New-York common pleas on the third Monday of January last, the writ having issued a few days previous to the first day of January. On the fourth day of the court, the demandant moved that the tenant be called; the presiding judge refused to have him called, deciding that the common pleas had not jurisdiction of a writ of right. A mandamus was now asked for, directing the C. P. to proceed in the cause.

<p>Where judgments rendered by this court have been reversed in the court of errors with costs, and venires de novo awarded, the proceedings of the plaintiff will be stayed until the payment of the costs in error.</p>

Motion to set aside .proceedings. The defendant was served with a capias returnable in August term, 1818. He retained an attorney to defend, who gave notice of appearance in a suit coupling with the plaintiffs, in this cause four other persons as plaintiffs, which notice was disregarded by the plaintiffs' attorney, and a judgment entered by default on the 9th May, 1820, for $418,33. In September last, the defendant was served with a scire facias -to revive the judgment.

The relator was the defendant in an action of replevin, and put in plea of non cepit only. On the trial of the cause, the plaintiff was nonsuited, and the defendant entered a judgment of retorno habendo; which on motion, the Niagara common pleas struck from the record. A mandamus was now asked for to restore that judgment.

Tuts was an action of assumpsit against the defendant as endorser of a promissory note, for $247,10, due the 4th September, 1827, tried at the Rensselaer circuit in 1828. The defence set up was forgery by the maker in endorsing the name of the defendant on the note.

Demurrer to plea. The declaration is in debt on a bond bearing date 1st December, 1828, conditioned for the faithful performance of the duties of the office of collector of the town of Batavia, by L. Holden, one of the obligors ; the other being his surety.

This case was tried at the Orleans circuit in November, 1829, before the Hon. Addison Gardner, one of the circuit judges. The trial occupied ten days. The defendant was indicad as a conspirator in the abduction of William Morgan. The indictment contained six counts, but three of which, viz. the second, third and fifth counts were relied upon at the trial.

This was an action of assumpsit, tried at the the Seneca circuit in June, 1827, before the Hon. E. T. Throop, then one of the circuit judges. The declaration contained the usual money counts, and a count on an insimul computassent. In 1810 the defendant sold 107 acres of land, part of a lot in the military tract, to the plaintiff, for the consideration of $655, and executed to him a warranty deed. He sold the remainder of the lot to other persons.

This was an action of ejectment, tried at the Herkimer circuit in September, 1828, before the Hon. Nathan Williams, one of the circuit judges. The lessor of the plaintiff claims to recover an undivided one eighteenth of the low lands of lot No. 14 in the German Flatts patent, being an equal undivided third part of certain premises allotted to his brother Johannes on a partition, amongst six of the children of George Adam Bowman, the father of the lessor of the plaintiff.

This was an action of assumpsit, tried at at the Ulster circuit in November, 1828, before the Hon. Ogden Edwards, one of the circuit judges. In November, 1825, the plaintiff entered into a contract with the defendants to construct a part of their canal, designated as section No. 12, at stipulated prices for the several pjnds 0f workffo be done, and engaged to complete the same by the 1st October, 1826.

This was an action of trover, tried at the Albany circuit in February, 1829,' before the Hon. William A. Duer, then one of the circuit judges.

This was an action of ejectment, • tried at the Schenectady circuit in January, 1828, before the Hon. William A. Duer, then one of the circuit judges. Christopher Peek, the father of the defendant, was the owner of a farm in the town of Rotterdam.

<p>The statute of champerty and maintenance cannot be alleged in bar of a recovery on a bond executed by a> step-son of one lessor of the plaintiff in an action of ejectment, to another to indemnify him against the costs of such suit, where it apperas that the obligee refused to permit his name to be used without such indemnity.</p> <p>A bond and warrant of attorney given by such obligee for the amount of the costs of such suit, on the same being demanded of him under the consent rule, after a judgment against the nominal plaintiff, is not.evidence ofpayment entitling him to sustain an action on the covenant of indemnity.</p>

<p>This was an action, of covenant for rent reserved in a lease, tried at the Otsego circuit in September, 1828, before the Hon. Samuel Nelson, one of the circuit judges.</p> <p>On the 4th February, 1789, Stephen Lush, the testator, executed a lease to Edward M’Donald in perpetuity of certain premises, described as “ all that certain lot of land distinguished and known by the name of lot number two, in the division of a tract of land situate, lying and being in the county of Montgomery, (now Otsego,) adjoinging a patent called Springfield; beginning at the south-east corner of a tract of land granted to John M’Niel, and running thence easj- ^he said patent of Springfield twenty-six chains, and extending fronn the said east line northward the whole breadth of the said tract of land, of which said lot is a parcel, so as to include 100 acres, which said last mentioned tract of land was granted to John Lansing, junior the rent reserved was 18| bushels of good merchantable wheat, to be delivered annually on the first day of February in each year at such place in Albany as the lessor, his heirs or assigns should appoint. The declaration claimed 8 years rent, amounting to the sum of $175, as due on the 1st March, 1825. The defendant pleaded not est factum, payment, denying the assignment of the lease to him, and that only part of the premises, to wit, 80 acres, ever came to his possession.</p> <p>The lease was proved by evidence of the hand writing of the witnesses, one of whom was dead and the other resided in Upper Canada. The defendant’s counsel insisted that the signatures of the lessor and lessee should also be proved, which the judge ruled to be unnecessary. It was then shewn that in 1814 the defendant claimed to be the assignee of the lease. A witness proved the value of wheat in Albany in the years 1822, 23, 24 and 25, derived by him from the books of large dealers in wheat in that place, he knowing nothing of the price of wheat from his own knowledge, and stated the rent for those years, according to the prices thus ascertained, at $85,21. The plaintiff claimed interest on this amount; the judge reserved the question and the plaintiff rested.</p> <p>The defendant objected to the sufficiency of the proof as to the value of the wheat, and insisted, 1. That the seisin of the testator at the execution of the lease having been averred, it ought to be proved; 2. That it was incumbent on the plaintiff to shew an appointment of a place in the city of Albany for the delivery of the wheat, and notice thereof to the defendant; and 3. That the plaintiff having alleged that the defendant, by virtue of an assignment, had entered into and possessed the premises, was bound to prove the fact ; which objections were overruled by the judge. The defendant, after producing receipts for rent from 1816 to 1821 inclusive, and also a receipt of 1822 for 15 bushels and 35 lbs. of wheat on account of rent, offered to prove that the premises described in the lease covered lot number four of the tract mentioned in the lease, and not lot number two, which was offered 7 . to be shewn by evidence, that the tract described in the lease consisted of only four lots, the northernmost lot being designated number one, the next number two, the third number three, and the southernmost lot number four, and that the lot in the possession of the defendant is number two; that the lessor never had title to number four; that it never had been in the possession of McDonald, the lessee, or of the defendant, and that it was in fact holden under an adverse and paramount title, and had been so held for 25 years. This evidence was objected to and overruled. The defendant then offered to prove that lot number two as in his possession contained only 80 acres; that the location made by the lessee, and transmitted to him by assignment, contained only that quantity, and that it could not be extended without encroaching upon the adjoining tracts, and insisted that if he established such facts he was entitled to a pro rata abatement of rent, and that the excess paid by him in former years should now be allowed him in payment of the rent demanded. The judge decided that such evidence was inadmissible. The defendant then insisted that the jury in assessing the damages should be governed by the value of the wheat on the premises ; this point also was decided against him, and a verdict rendered for the plaintiff for $64,99, the balance due after deducting the payment of 1822, subject to the opinion of this court; the interest to be added if the plaintiff was entitled to recover interest.</p>

<p>In slander, where the plaintiff in his declaration after setting forth the words spoken, avers that the defendant by means of the words, insinuated, and meant to be understood as charging the plaintiff with the crime imputed, and that the defendant was so understood by the hearers; whether or not such was the intention of the defendant, is a question of fact to be determined by the jury upon the evidence adduced in support of the averment-</p> <p>A defendant who couches his slander in ambiguous terms, in the hope of blasting the reputation of his neighbour without incurring legal responsibility, is not entitled to an indulgent construction of his words either from the court or the jury.</p> <p>The understanding and opinions of witnesses are not received in evidence, except in matters of science and a few special cases resting upon peculiar circumstances. It is the business of witnesses to state facts, and it is the province of the jury, under the direction of the court, to draw the necessary inferences or conclusions,</p>

This was an action of ejectment, tried at the Onondaga circuit in February, 1828, before the Hon. Enos T. Throop, one of the circuit judges. It was shewn on the trial that one Wells entered into the possession of forty acres of land in the month of March, 1824, as a tenant of the lessor of the plaintiff for one year, to work the same on shares. He held over.

<p>Where an endorser resided in one town within two and a half miles of a post office, and carried on business in another town where there was a Iso a post office at the distance of four and a half miles from his residence and he received letters and kept a postage account at the latter office, it was held that notice of protest of a note might be sent to either plac</p> <p>It is not indispensable that notice should be sent to the office nearest to the residence of the party, nor even to the town in which he resides ; it is sufficient if it be sent to the office to which ho usually resorts for his let' ters.</p> <p>A mistake in the name of the post office to which a notice of protest is directed does not render the notice inoperative, where it appears that the post office is as well known by one name as the other; a notice directed to Geddesburgh when it should have been Geddes, was accoi - dingly holden good.</p>

This was an action on the case for a false return, tried at the Chenango circuit in December, 1828, before the Hon. Samuel Nelson, one of the circuit judges. The defendant, as sheriff of the county of Chenango, returned upon a fieri facias issued upon a judgment in favor of the plaintiff against one Pliny Nichols, upon which he was directed to levy #479,60, that he had caused to be made #18, and as to the residue nulla hona.

This was an action for a libel, tried at the Onedia circuit in October, 1828, before the Hon. Nathan Williams, one of the circuit judges.

This was an action of assumpsit, tried at the New-York circuit in December, 1828, before the Hon. Ogden Edwards, one of the circuit judges.

This was an action of ejectment brought for the recovery of about one acre of land, tried at the Livingston circuit in October, 1828, before the Hon. John Birdsall, than one of the circuit judges. The plaintiff shewed title to the premises in question under a sheriff’s sale by virtue of an execution against one Ezekial Fox, who was in possession of the premises for 12 or 13 years previous and up to the spring of 1827, claiming to be the owner.

<p>The place of payment of a note payable in salt or other portable article, is the residence of the creditor, where the time of payment is fixed by the contract, but the place not designated.</p> <p>Covenants are independent where there is a covenant to convey by a day certain on the one part, and such day precedes the time of payment the consideration of the act to be performed stipulated in the convenant on the other side ; and in such case, in an action by the party covenanting, it is not necessary to aver performance on his part.</p> <p>Where, in a contract for the payment of a sum of money in salt, the party contracting to make the payment agreed to pack the salt in barrels in the usual way of packing salt, and the contract specified that the barrels were to be furnished and delivered at the place of manufacture by the party to whom the payment was to be made ; it was held, that to entitle a party to sustain his action for the non-delivery of the salt, he was bound to aver that he had furnished the barrels, or had waived the per formance of that part of the contract by which the manufacturer was bound to pack the salt in barrels.</p>

<p>A release of the equity of redemption obtained by a mortgagee, is a satisfaction of the mortgage and also of the bond accompanying it as collateral security, if the property when the release is obtained is equal in value to the debt for which it was mortgaged. If it be of less value than the debt, it is payment pro tatito.</p> <p>A foreclosure of mortgaged premises without sale, does not operate as an extinguishment of the debt, unless the mortgaged promises are of sufficient value to pay the debt.</p> <p>A plea that the plaintiff in an action of debt on a bond, executed as a collat. eral security to a mortgage, had become possessed of ther equity of redemption by purchase, fwas held bad for the want of an averment that the value of the mortgaged premises, when the equity of redemption was conveyed to the plaintiffr was equal to the amount due on the bond.</p> <p>So a second plea which alleged that 2 years after the plaintiff became pos. sessed of the equity of redemption, he sold the mortgaged premises for a sum far exceeding the debt, was also adjudged bad for the want of the same averment, or another that the property was of the same value when the equity of redemption was conveyed to the plaintiff as when he subsequently sold it.</p>

Demurrer to declaration. The declaration is in debt. After commencing by demanding $600 of debt on recognizance, it is stated that on 26th January, 1827, the defendant came before A. H. Esq. first judge of the Montgomery county common pleas and entered into a recognizance in the usual form in the the sum of $600, conditioned for the personal appearance of one J. E. V. W. at the then next court of oyer and terminer, &c. to be held in and for the said county, and that he…

This was an action of assumpsit, tried at the New-York circuit in December, 1827, before the Hon, Ogden Edwards, one of the circuit judges. The plaintiff claimed the one fourth of certain monies received by the defendant on the compromise of certain actions of ejectment, prosecuted by the defendant as the attorney of the plaintiff and others; of which claim the defendant had due notice.

This was an action of assumpsit tried at the Albany circuit in September, 1829, before the Hon. William A. Duer, then one of the circuit judges. The suit was against the defendant as the endorser of a promissory note. The plaintiffs were nonsuited on the ground of the insufficiency of the notice of protest.

Liability of infant. In this case a motion was made to set aside a report of referees. The action was brought to recover for the maintenance of the defendant whilst an infant, for the period of near three and a half years, and for necessaries furnished him during that time. The defendant pleaded the general issue and infancy: the plaintiff replied that his demand was for necessaries furnished, upon which issue was taken. The cause was heard before referees.

Error from Monroe common pleas. Spencer and Salisbury declared in the C. P. in debt, on a bastardy bond bearing date the 28th June, 1827, executed by Armine and his surety to them, as “ Overseers of the poor of the town of Clarkson, in the county of Monroe, in trust for the inhabitants of the said town,” conditioned to indemnify and save harmless as well the plaintiffs, overseers of the poor of the town of Clarkson, and their successors for the time being, as also all and…

Error from the New-York common pleas. Green declared in the common pleas against Waldron and Gomez on a promissory note, and also on the common money counts. The defendants suffered a default, and the damages of the plaintiff were assessed by the clerk, no nolle prosequi being entered on the common counts. For this cause a writ of error was sued out by the defendants below.

This was an action of assumpsit, tried at the Madison circuit in September, 1828, before the Hon. Nathan Williams, one of the circuit judges. The declaration contained two counts. The first was on a promissory note, payable to H. B. or bearer, transferred to the plaintiff.

Demurrer to replications. The plaintiff declared in covenant on an instrument in writing in the following words: “ Know all men by these presents, that whereas Stephen Symonds has this day been elected constable of the village of Rochester for the year ensuing; now therefore, we the said Stephen Symonds constable, Nathan Lyman, Harvey Gil-man and Samuel Smith, do jointly and severally agree to pay to each and every person such sym or sums of money as the said constable shall…

Error from the Saratoga common pleas. ’ Viele sued Moore in 1826, before a Justice of the peace, and declared on a promissory note made by the defendant, bearing date in November, 1815, for the sum of $25, payable on the 1st day of June then next, to David Blood, junior, or bearer. The defendant pleaded the general issue, the statute of limitations, and an insolvent discharge, discharging him from all his debts, granted in May, 1817.

This was an action of replevin, tried at the Rensselaer circuit in July, 1828, before the Hon. William A. Duer, then one of the circuit judges. The declaration was in the usual form for taking goods and chattels of the plaintiffs.

Error from the Niagara common pleas. Springsteen sued Saunders and two others, assessors of the town of Lewiston, in a justice’s court, in an action of trespass on the case, for assessing certain lands and subjecting the same to a tax in the town of Lewiston, whereas it was alleged the same were not taxable in that town, but in an adjoining town, viz. Cambria, where the plaintiff lived.

<p>Where A. was applied to to lend his name as a maker to a negotiable note for the benefit of B,, upon being told that B. could procure C. and D. to sign a note with him for the amount wanted, and A. accordingly signed such note, after the same had been signed by B., C. and D., and when the same fell due was compelled to pay the note, it was held, in an action brought by A, against the three others to recover the money thus paid, that the same could not be maintained ; that C, and D. were co-sureties with A., and were liable only for their aliquot proportion of the money paid, to be recovered in a separate action against each.</p> <p>An indemnity given to A., under the circumstances of this case, by a third person, would have been no bar, to a recovery upon the implied promise had the defendants all been principals.</p> <p>On a venire lam quam, a plaintiff cannot regularly be nonsuited, although the evidence against the defendant who appears, is not sufficient to entitle the plaintiff to recover.</p>

This was an action of ejectment, tried at the Jefferson circuit in December, 1828, before the Hon. Nathan Williams, one of the circuit judges. The lessor of the plaintiff claimed to recover the premises in question under a deed from an administrator, in pursuanee of a sale by virtue of a surrogate’s order, directing the real estate of the intestate tobe sold for the payment of his debts.

<p>Where A. was bound by bond to pay B. during her life an annuity of $1000, and at the time of the decease of B, the sum due upon the bond was $4000, it was held, that A. was not entitled to recover an unsettled demand of $ 1500 against the estate of B. notwithstanding that the bond had been cancelled in pursuance of a direction in the will of B, that it should be so cancelled en the payment by A. of $ 1600 ; the testamentary provisions in relation to the bond being considered not as a legacy but a? a proposition of a settle, ment of all claims and demands between A. and B. ; and it was holden that A. was not entitled to recover even for demands arising after the making of the will.</p> <p>Parol proof of the intention of the testator may in such cases be resorted to, not to give a construction to the language of the will, but to prove. circumstances whereon to found inferences or presumptions.</p> <p>A legacy given by a debtor to his creditor will not be deemed a satisfaction of a pre-existing debt, unless it appears to have been the intention of the testator that it should so operate.</p>

This was an action of debt, tried at the Chenango circuit in February, 1828, before the Hon. Samuel Nelson, one of the circuit judges. The suit was brought on a bond given by the defendant Birdsall as treasurer of the county of Chenango, conditioned f°r the faithful discharge of the duties of his office. The bond bore date on 29th October, 1812, and was executed by the defendant Birdsall with sureties. Various breaches were assigned.

This was an action of ejectment, tried at the Yates circuit in February, 1829, before the Hon. Daniel Mosely, one of the circuit judges. The plaintiff shewed title to the premises by the production of a sheriff’s deed under a sale on a judgment obtained by the lessor of the plaintiff against Frederick Probasco and Aurelia his wife, docketed 7th September, 1826. The judgment was on a promissory note given by the wife of Probasco whilst sole for the sum of $412,36.

<p>A wife may act as the agent of her husband ; and a subsequent acknowledgment or ratification of her acts by the husband is evidence of and equivalent to an original authority.</p>

This was an action of debt, tried at the Monroe circuit. The plaintiff declared on a bond in the penal sum of $10,-000, and bearing date the 12th April, 1827, reciting that the defendant had sold to the plaintiff a lot in the village of Clark-son, and his business as a physician and surgeon, for the sum of $1000, and conditioned that the defendant would not locate himself and practice as a physician or surgeon in the said village, nor within six miles thereof, for the space…

This was an action of debt, tried at the Albany circuit in February, 1829, before the Hon. William A. Duer, then one of the circuit judges.

This was an action of ejectment tried at the Erie circuit in September, 1828, before the Hon. John Birdsall,. then one of the circuit judges. Samuel Anderson was the owner of a lot of land of 146 acres in the town of Clarence.

<p>Error from the Washington common pleas. This was an action of assumpsit for goods sold and delivered. On the trial, the plaintiff, a stove dealer, produced an account of sundry items alleged to have .been sold to the defendant, and which was proved by his clerk to be a true extract from his books of account. On the extract was a charge for a patent cooking stove, the delivery of which was proved by the clerk, and that the defendant was told that the price was $40 cash, or $45 if sold on a credit of six months. Besides the delivery of the patent cooking stove, he proved the delivery of stove pipe, a dumb stove, wire &c. appendages to the stove, and of sundry other articles charged in the books and that the defendant was in the habit of dealing at plaintiff’s shop on a credit, and had work done there occasionally that a part of the entries were made by the plaintiff and a part by the witness ; that the plaintiff always charged interest on bis accounts after ninety days, which custom he believed was generally known and that he had been present at settlements by the plaintiff with different individuals and never heard any complaint as to the correctness of plaintiff’s books. The books of account were then received in evidence • although their admission was objected to by the defendant ; from the books it appeared, that the plaintiff’s account amounted to $74,26, and it was proved that the interest on the same amounted to $11,80. Besides the above, two witnesses testified that the defendant had admitted the correctness of all the items charged in the plaintiff’s account, except the stove pipe, dumb stove, and wire appendages to the stove. The defendant objected to the plaintiff's right to re-voter interest, which objection was overruled. The plaintiff rested.</p> <p>The defendant then, in pursuance of a notice attached to his plea, offered to prove that the plaintiff warranted the stove to draw and carry smoke well and to cook well, and that the stove did not draw and carry smoke well; that after every possible experiment made, it was found it would not draw ; that the bottom plate was warped, and that the plates did not fit together; that the defendant took the stove to the plaintiff and offered to return it, but that the plaintiff refused to receive it back. It was not pretended that there was any fraud in the sale, but the defendant insisted that he was entitled to give this evidence as a set off of damages for the breach of the plaintiff’s contract of warranty, and to reduce the amount of the plaintiff’s recovery. The evidence was objected to by the plaintiff, and rejected by the court on the ground that unliquidated damages for a breach of a warranty cannot be set off in an action of assumpsit; and that where there has been an absolute, unconditional sale of an article for a stipulated price, and no fraud shewn, although there be a warranty, a breach of such warranty cannot be given in evidence to reduce the stipulated price of the article; that had fraud existed, the defendant would have had a right to have shewn it, either wholly to defeat the plaintiff’s right to recover for the article sold, or to reduce the amount of his recovery to the value of the article sold; but as no fraud was shewn, the contract of sale stood unimpeached, and there was a sufficient consideration to support it. To this decision the defendant excepted. Sundry items of set off were proved on the part of the defendant, and the court charged the jury, that the plaintiff was entitled to recover the amount of his account, including the stove at $45 and the interest to be computed from the expiration of the credit, after deducting the amount of the defendant’s account proved. The jury found for the plaintiff, with $65,61 damages, on which verdict a judgment was entered.</p>

Demurrer to declaration in covenant for rent, containing two counts.

This was an action of debt to recover a penalty of 11000 for an alleged contravention of the act prohibiting the cai lying on of banking business by individuals and incorporated companies, unless specially authorised by law, tried at the Erie circuit in April, 1828, before the Hon. John Birdsall, then one of the circuit judges.

This was an action on a promissory note made in New-Hampshire whilst both parties were inhabitants of that state. The note fell due in December, 1820. On the 7th September, 1821, the defendant obtained a discharge in this state jfrom his debts as an insolvent debtor, under the act of 1813, he as well as the plaintiff having become inhabitants herej and pleaded the discharge in bar of the action. On demurrer, the plea was overruled.

Demurrer to declaration. On the 3d March 1828, the parties entered into an agreement under seal, whereby the defendant, for and in consideration of $80, to be paid in manner after mentioned, “ granted, demised, let, leased, and to farm let” unto the plaintiffs three lots in the village of Syracuse, to hold from 15th March, 1828, but specifying no term.

Eekoe from the New-York common pleas. Allen took a lease of Pell of a house in the city of New-York for one year from 1st of May, 1825, at a rent of $200, to be paid quarterly ; the rent of the first quárter not to commence until the 15th of May, in consideration that the house might not be quite finished.

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

This was an action of false imprisonment, tried at the Seneca circuit in June, 1829, before the-Hon. Daniel Mosely, one of the circuit jugdes. The imprisonment complained of was an arrest on a justice’s execution, which it was alleged had been illegally renewed.

<p>Where a bill of sale was made by a tavern keeper of all his household furniture, &c„ and on the same day the vendee executed a lease of the same property to a brother of the vendor, who at the time resided with the vendor as a hired man, and the vendor and the lessee continued to reside together, and the business of tavern keeping was continued, it was held, that the judge ought to have instructed the jury that if they believed the lease was real, and bona fide intended to put the lessee in possession of the property,and that he actually took possession of the same, and conducted the public house in which they were, then the sale of the vendee was valid, and he was entitled to recover damages against a sheriff who took the same, by virtue of an execution against the vendor; but that if they believed that the lease was colourable, and that it was intended by the parties that the vendor should continue in the possession and enjoyment of the property, then the whole transaction was void, and the defendant was entitled to a verdict.</p> <p>A new trial may be asked for on a case made, on the ground of the misdirection of the judge, although no exception is taken to the charge of the judge on the trial. (See note.)</p>

Error from thé Monroe common pleas. The declaration in the court below was in debt on an apeal bond executed by Springer and two sureties to Beach, bearing date the 2d October, 1826, reciting a judgment obtained by Beach before a justice of the peace against Springer on the 2d October, 1826, for $44,52 damages and costs, and conditioned for the prosecution of an appeal made by Springer with all due dilligence, and in case judgment should be rendered against Springer in the…

Error from the Monroe common pleas. Skinner sued Sheldon in a justice’s court, and declared in one count in trover for the conversion of fifty hogs, and in another count in case on bailment, by which the plaintiff let the defendant have fifty hogs to fatten on shares; that the defendant turned the hogs into the highway and they were lost. The defendant^) leaded, 1. Not guilty, and 2.

This was an action of slander, tried 'at the Rensselaer circuit in June, 1828, before the Hon. William A. Duer, then one of the circuit judges. The words charged to have been spoken by the defendant were spoken whilst the plaintiff was testifying as a witness at an arbitration.

Demurrer to declaration. The declaration, after stating, by way of inducement, that the plaintiff used and exercised the trade and business of a manufacturer of patent lever watches, called S. J. Tobias & Co’s patent lever watches, and that the defendant was a dealer in patent lever watches manufactured by M. J. Tobias and Robert Roskell, and by other persons, averred that the defendant intending to defame and slander the plaintiff, and to injure and prejudice him in the use…

This was an action of ejectment, tried at the Oneida circuit in October, 1827, before the Hon. Nathan Williams, one of the circuit judges.

Demurrer to declaration. Thomas, as administrator of the' estate of I. Hagerman, deceased, sued the defendants as the devisees of G. B. Van Ness, deceased.

<p>Justices of the peace may commit the mother of a bastard child to prison for refusing to discover the putative father.</p> <p>A warrant under which a false imprisonment takes place, produced on the trial by a plaintiff, is evidence of the facts contained in it, until gain-sayed by proof on his part,</p> <p>A misnomer in the warrant of the person arrested, subjects the actors to an action for false imprisonment.</p>

This was an action of ejectment, tried at the Madison cir-. cuit in April, 1828, before the Hon. Nathan Williams, one of the circuit judges.

This was an action of assumpsit, tried at the Montgomery circuit in November, 1828, before the Hon. Esek Cowen, one of the circuit judges. The declaration contained the common money counts.

Error from the Albany mayor’s court. Stevens sued the Cuylers as the endorsers of a promissory note, made by one Squire, for $200, bearing date 1st April, 1828, and payable in ninety days. On the third day of July payment was demanded at the lodgings of the drawer in Troy, and at his dwelling house in Greenbush, where his family resided, and refused.

Error from the Sullivan common pleas. This cause came up to the Sullivan common pleas on an appeal from a justice’s judgment, rendered in favor of Stewart against Borland and Clark, in an action of trespass for taking and selling a horse, waggon and harness. On the trial in the common pleas, the plaintiff, Stewart, proved his declaration.

Demurrer to plea. The declaration was on a bond, bearing date 18th July, 1814, conditioned that Bussell, one of the defendants, should truly and faithfully perform the office and duty of a commissioner of loans for the county of Franklin, agreeable to an act of the legislature, passed April 11, 1808.. The suit was commenced in February term, 1827, and two breaches were assigned; 1.

Demurrer to declaration. The declaration contained a count on a promissory note for $1600 payable to P. Walrad, junior, or Robert Bowman, stated to have been made for value received. There was also a count for money lent, had and received, &c. To the first count the defendants demurred, and the second pleaded the general issue. The plaintiffs joined in demurrer.

Demurrer to replication. The declaration contained two counts for an assault, battery and false imprisonment. The defendant pleaded a special justification to each count, alleging the existence of a debt due and owing by the plaintiff to the defendant, the due issuing of a warrant by a justice 0p tpe peace for the collection of the same, and the arrest of the present plaintiff by virtue of the same; which was alleged to be the same assault and imprisonment complained of.

This action was tried at the Rensselaer circuit in November, 1828, when the plaintiffs obtained a verdict for $564,86 on a due bill for $300 made by the testator, payable to Mrs. Guyot, bearing date 17th September, 1816. The testator died in 1827.

This was an action of assumpsit, tried at the Rensselaer circuit in November, 1828, before the Hon. William A. Duer, then one of the circuit judges. Ladue was the owner of a sloop navigating the Hudson river, and M’Connelly in 1824, sailed her as master on the terms that M’Connelly should victual and man the sloop, and that the profits should be equally divided between them.

This was an action of ejectment, tried at the Oswego circuit in June, 1828, before the Hon. Nathan Williams, one of the circuits judges. The plaintiff claimed to recover the premises in question tinder a sheriff’s deed by virtue of a judgment and execution and sale thereon.

<p>In an-action for a malicious prosecution, the recovery in a court of compe. tent jurisdiction in favor of the plaintiff in the suit complained of as ma. licious, is not conclusive evidence of probable cause. It seems that the allegation that the plaintiff in such suit, with a knowledge that he had no cause of action and that the defendant had a full defence, caused the defendant to be detained as a prisoner until judgment could be obtained against him, for the purpose of preventing a defence and hindering him from procuring the nrossary evidence to substantiate his defence, would countervail the effect the admission of such recover} ; at all events, evidence of the want of probable cause rebuts the inference of the existence of probable cause arising from the fact of a recovery in the suit complained of as malicious.</p> <p>The rule requiring the plaintiff to shew that the suit complained of as malicious was decided in his favor, is complied with by shewing a judgment in his favor in the common pleas, on an appeal from a justice’s judgment, although such latter judgment was in favor of his adversary.</p> <p>Evidence of the proof adduced, on the trial of the suit complained of as malicious, is inadmissible for the purpose of shewing probable cause, where the defendant himself was not the witness ; the party is bound to produce the witnesses, and is not permitted to prove what they testified to.</p> <p>A nisiprius roll and postea, which ought regularly to have been produced at the circuit to admit proof of what transpired on the trial of a former cause, may be brought into court in bank, and will be received on the argument of a case made at the trial.</p>

<p>Certiorari to the recorder of New-York to send up the petition of the insolvent for a discharge under the act to abolish imprisonment for debt, and the proceedings thereon, with all things touching the same. The recorder returned that on the 17th June, 1828, the insolvent presented his petition, with the usual accompanying papers, amongst which was an affidavit that the insolvent was “ an inhabitant, actually residing within the city and county of New-York ; ” upon which he made an order for the creditors to shew cause why a discharge should not be granted. On the day of shewing cause, the insolvent was examined on the part of the creditors, and testified that he was a native of England ; that he came to New-York in 1821, commenced the business of a commission merchant, and continued in the same until the fall of 1827, when he became embarrassed and unable to pay his debts, and determined to leave this country for England, where his creditors resided. In the spring of 1828, he accordingly went to England, talcing with him his books of account, it being uncertain whether he would return or not. After remaining in England about three weeks, he left there for New-York, and arrived on the 12th day of May, 1828 intending to proceed to Canada to reside ; where he had hopes of receiving consignments of goods from England. He purposed to have gone to Canada in July, 1828; his arrangments as to going there, however, were of such a character that he could consistently have gone into business elsewere, had a favorable opening presented. He left his books of account in England, and on his arrival in May, possessed no funds and engaged in no business. He took board at Brooklyn, waiting until he should be advised of the arrival of the expected goods in Canada. In the beginning of June, he was arrested for debt in Brooklyn, and gave bail; he then came to New-York, where another writ was served upon him; he was again bailed, and remained and boarded in New-York until he presented his petition. Upon these facts appearing, the counsel for the creditors objected to the insolvent’s being discharged, on the ground that he was not an inhabitant of New-York. The recorder decided that the insolvent had not changed his residence in New-York by going to England, and that at the time of presenting the petition he could not be considered as having a' residence, within the meaning of the act, in any place other than New-York, and thereupon, after assignment) granted a discharge.</p>

<p>Compensation for the part performance of a contract by a defendant cannot be set-off against the damages of the plaintiff occasioned by the non-performance of the residue : and it was accordingly holden, where one party agreed to saw by a given time 300,000 feet of boards at a stipulated price per 1000 feet, and failed to saw the whole quantity, that though he had sawed 144,000 feet, which had been received by the other party, that a compensation for the quantity sawed could not be set-off against the claim for damages for the omission to saw the residue.</p>

This was an action of assumpsit, tried at The Madison circuit in September, 1828, before the Hon. Nathan Williams, one of the circuit judges. Osgood and three others were the endorsers of a bill of exchange, drawn by Gilbert F. Jones on a banking company in London, for ¿2000 sterling, dated in January, 1824, payable thirty days after sight, which was purchased by the plaintiffs and negotiated by them.

This was an action of trover, tried at the Albany circuit in August, 1827, before the Hon. William A. Duer, then one of the circuit judges. The defendant was the owner and master of a canal boat employed in the transportation of merchandize. The plaintiff purchased dry goods at three stores in the city of Albany» which were put up in jfive boxes, and sent to the boat owned by the defendant.

Demurrer to declaration. The declaration states, that) on, &c. at, &c. the plaintiffs took and detained certain timber of E. Colburnand J. Burray ; that Colburn and Burray made their plaint to the sheriff of Seneca, out of the county court of the said sheriff, of the taking and detaining the same and prayed the sheriff that the timber might be forthwith replevied and delivered to them; that thereupon the sheriff, according to the form of the statute in such case made and…

<p>Where the heir, previous to the death of his ancestor, conveys by deed all his interest in the estate of his ancestor, and there is a judgment against L the heir previous to the eonveyance^on which, afterthe descent of the pro. erty, a sale is had, the purchaser at such sale, and not the grantee under the conveyance, takes the land.</p> <p>Although a covenant of warranty would bar by way of estoppel the heir and his issue from setting up title to the estate, such estoppel does not affect the purchaser under a judgment entered previous to the conveyance creating the estoppel.</p>

Error from the WasMngton common pleas This cause was brought into the common pleas by an appeal from a justice’s judgment rendered in favor of Gale against Wilson, Gale, in March, 1824 commenced his suit against Wilson, and declared in debt for the amount of an execution in his favor against one Munson, which had been put into the hands of Wilson, .as a constable, for collection, and which Wilson had neglected to return according to the provisions of the statute.

This was an action of assumpsit on the common counts^ tried at thé Orleans circuit in November, 1828, before the Hon. Samuel Nelson, one of the circuit judges.

The husband of the widow died seised of 440 acres of land, of which 125 acres were assigned to her by the admeasurers appointed on her petition by the surrogate of Wayne county.

<p>This was an action of ejectment, tried at the Saratoga circuit in May, 1828, before the Hon. Nathan Williams, one of the circuit judges.</p> <p>Anthony Van Schaick, by his last will and testament bearing date 17th August, 1781, devised all his real estate to his wife Christina for life, with remainder to his daughter Anna) the wife of John G. Van Schaick, in fee. On the 28th February, 1784, Christina Van Schaick, John G. Van Schaick and Anna his wife, demised lots Nos. 71 and 99 in the Half-moon or Van Schaick’s patent to the defendant for the term of 67 years, reserving an annual rent of £9. The defendant entered into possession of the premises, and remained in possession at the commencement of this suit in May, 1827. Christina Van Schaick died about 17 years before the trial, and Anna Van Schaick about 11 years before the trial, leaving her husband John G. Van Schaick living. A few days previous to the commencement of this suit, one of the heirs of Anna Van Schaick demanded of the defendant payment of the rent due upon the lease executed to him. The defendant admitted that he held such lease, but refused to pay any rent, stating that he had warranty deeds from Mr. Ludlow and others for the land. This suit was then commenced for the recovery of the demised premises. The lessors of the plaintiff were John G. Van Schaick and the children of his marriage with Anna Van Schaick. On this evidence, the plaintiff rested.</p> <p>On the part of the defendant, it was shewn that difficulties having arisen as to the boundaries of the Halfmoon patent and the patent of Kayaderosseras, which adjoined it, an agreement was entered into by the proprietors of those patents on 21st November, 1792, to apply to the legislature of the state for the appointment of commissioners to determine the boun^ary ^nes between those patents, which agreement was signed, amongst others, by Christina Van Schaick, and the petition was presented. On the 31st January, 1793, a similar agreement was entered into between the proprietors of the patents of Halfmoon, Kayaderosseras and Shannondhoi or Clifton Park; this, however, was not signed by Christina Van Schaick, nor by any other under whom the lessors of the plaintiff claimed, On 11th March, 1793, an act was passed by the legislature appointing commissioners in pursuance of the prayer of the petitioners. On the 25th February, 1794, a majority of the commissioners made and filed their determination in the premises, establishing the boundary lines as designated on a map of the Kayaderosseras patent subscribed by three commissioners of the names of Yates, Glen and Palmer, and by a surveyor of the name of Webb. The defendant then proved that the premises in question laid within the Kayaderosseras patent according to the lines thus established, and produced in evidence four deeds of distinct portions' of the premises in question from sundry persons claiming under the Kayaderosseras patent to him (the defendant,) conveying the premises in fee, with covenants of warranty. Those deeds bore date in 1798, 1800, 1802 and 1811. The defendant also proved that on the 15th January, 1814, several of the lessors of the plaintiff, (John G. Van Rchaick, however, not being one of them,) joined in a conveyance of a part of a lot in the Halfmoon patent, which extended across and beyond the established line of the Kayaderosseras patent, and bounded the same on such line, and that on the 11th January, 1817, the same parties joined in another conveyance of another lot, bounding it in like manner.</p> <p>On the part of the plaintiff an act of the legislature passed 7th April, 1795, was read in evidence, declaring that the title of no person whomsoever claiming lands in either of the above patents, and who did not unite in the application to the legislature for the passage of the act of the 11th March, 1793, should be bound or any ways affected by the determination of the commissioners made in pursuance of such act. A witness for the plaintiff also proved that he held land on the Kayaderosseras side of the line established by the commissioners, under purchase from the lessors of the plaintiff; and it was shewn that for the last forty years John G. Yan Schaick was incapable of transacting business in consequence of mental derangement.</p> <p>The judge charged the jury that the lease produced was prima facie evidence of title in the lessors, and that the defendant having accepted a lease was not permitted by law to deny the title of his landlords ; that from the evidence adduced, it was their province to say whether or not the lessors had released their title to the premises in question. He recapitulated the testimony, and expressed his opinion that the evidence was too slight to warrant the presumption of a release, but submitted the question to their consideration. The defendant excepted to the charge of the judge, and the jury found a verdict for the plaintiff; which was now moved to be set aside.</p>

This was an action for false imprisonment. The defendant, as a constable, committee the plaintiff to jail on a justice’s execution for $41,79,. where he remained five days.

<p>It is no departure in pleading for a defendant, after pleading liberum teñementUMi to rejoin to a replication setting forth a demise, that in the demise was contained a reservation to do the acts complained of as,trespasses.</p> <p>A rejoinder, however, of a reservation in a lease, to examine demised premises, and to make such repairs and alterations as should be deemed necessary, is no answer to a charge for prostrating a fence, leaving the premises exposed to the intrusion of cattle, and converting the fence to the use of the defendant.</p>

This was an action of trespass, tried at the Albany circuit in September, 1827, before the Hon. William A. Dueej then one of the circuit judges. The trespass complained of was the entering upon the lands of the plaintiff with waggons and carts, and taking and carrying away large quantities of Cobble stones.

Motion to set aside report of referees. The declaration was on a promissory note, dated April 28th, 1818, for $1900, drawn by the defendant, payable six months after date to C. C. B. and endorsed by him, and also on the money counts.

This was an action of assumpsit tried at the Brie circuit in April, 1828, before the Hon. John Birdsall, then one of the circuit judges.

<p>This was an action of slander tried at the Orange circuit in April, 1829, before the Hon. James Emott, one of the circuit judges.</p> <p>The words charged in the declaration to have been spoken were the following : “ He is a thief and I can prove it—he stole a sheep from Solomon Colliding and I can prove it by his (plaintiff’s) boys—I wonder how you can vote for him, he is a thief—he is a robber of hen-roosts and I can prove it* The defendant pleaded the general issue.</p> <p>On the trial of the cause, it was proved that at the general election in November, 1828, the plaintiff was a candidate for the office of a justice of the peace, and that the defendant attempted to prevent his election. To one elector he observed that he was surprised that he supported the plaintiff for the office of a justice of the peace, asking, “Will you supportaman who has stolen sheep and hens? he has stolen Solomon Conkling’s sheep or lamb and Donaldson’s hensadding that he could prove what he said by John Archer’s boy. To another elector he said that he would not vote for the plaintiff or any other man who was guilty of robbing hen-roosts and stealing sheep. It was observed by some one that there might be a mistake. The defendant said no; he stole Solomon Conklin’s sheep, and he could prove it by John Archer. The plaintiff lost his election. After the polls closed, the defendant repeatedly renewed the charges, and upbraided the electors for voting for the plaintiff. On the part of the defendant, it was shewn that the defendant uniformly said, when he charged the plaintiff with those crimes, that Archer told him so.</p> <p>The defendant went into proof of the general character of fhe plaintiff; on which subject there was a contrariety of evidence. From the testimony of the defendant’s witnesses, it appeared that of late as much „was not said against the plaintiff’s character as formerly. It was also proved that the plaintiff, after the election, threatened revenge against the defendant ; saying that he would follow him as long as he had a shilling, and that he would be a thorn in his side as long as he lived.</p> <p>The defendant offered to prove that Archer had told him what he had charged the plaintiff with; that from general report in the town of Monroe, (the residence of the plaintiff,) it was suspected that the plaintiff had stolen a sheep of Solomon Conkling; that it was common report in that town, and had been for ten or fifteen years past, that the plaintiff had stolen sheep and hens; and that ten or twelve years before the trial, the general report in the town was, that the plaintiff had been concerned in a petit larceny; which evidence was refused to be received by the judge.</p> <p>The .judge charged the jury that the character sustained by the plaintiff in former years was not to be regarded by them; that if they were satisfied that it was good at the time of the speaking of the words, they ought to disregard the evidence shewing that it was bad a number of years since; that the allegation of the defendant that Archer had told him that the plaintiff was guilty of the offences charged, made nothing in favor of the defendant, either in justification or mitigation, but was rather cause for aggravating damages, as the defendant, by publishing the charges, had endorsed the slander of Archer. He further told them, that if they believed that the plaintiff intended to persecute the defendant, such determination ought to go in mitigation of damages; and added, that although he thought it the duty of the plaintiff to prosecute this suit, he did not consider it a case for heavy damages. The jury found a verdict for the plaintiff with $325 damages, which was now moved to be set aside.</p>

This was an action of replevin, tried at the NewrYork circuit in October, 1829; before the Hon. William A. Dueb, then one of the circuit judges.

Demurrer to pleas. The declaration is in case for flowing the lands of the plaintiffs by means of the erection of a dam in the Seneca river.

This, was an action of ejectment, tried at the Onondaga circuit in September, 1828, before the Hon. Enos T. Throop, then one of the circuit judges, for the recovery of part of lot No. 65, Cicero.

This was an action of assumpsit, tried at the Herkimer circuit in March, 1829, before the Hon. Nathan Williams, one of the circuit judges. The action was commenced in October term, 1826, and was brought to recover monies collected by the defendant as sheriff of Herkimer on an execution.

Error from the Oneida common pleas. Williams sued Cummings in a justice’s court, and declared on a contract bearing date 12th May, 1824, by which Cummings acknowledged to have received of Williams a two year old heifer and calf, and agreed, within four years, to return the same heifer, and she to be with calf, and also another heifer three years old, also to be with calf; Williams only incurring the risk of the heifer, received by Cummings, being killed by lightning.