Volume 5 — Barbour's New York Supreme Court Reports

In Equity. The bill in this cause was filed for the purpose of having-certain promissory notes purporting to be made ny the North American Trust and Banking Company, and payable to the defendants Palmers, Mackillop, Dent & Co., in London, one year after date, set aside and declared void; and to set aside a deed assigning to the defendants Blatchford and Murray, certain securities in trust, to secure the payment of the promissory notes.

In Equity.- This was an appeal by the defendant, from a decree of the former assistant vice chancellor of the first circuit. The case in the court below is reported in 3d Sandford’s Chancery Reports, 313; where the facts are fully stated.

Certiorari, to review and vacate the proceedings of the defendants relative to the construction of a sewer in John-street, in the city of New-York. From the return to the certiorari the following facts appeared. On the 29th of April, 1847, the corporation of New-York passed an ordinance for the building of a sewer in John-street.

Iif Equity. On the 8th of December, 1834, Abraham Finch, of Lexington, in the couqty of Greene, being indebted to the plaintiff in the sum of $330, and to Alexander Merwin in the sum of $69, conveyed to the latter a farm in Lexington, containing 100 acres, of which he was the owner in fee, subject to an annual rent chargeable thereon. At the time of the conveyance the Tenners’ Bank of Catskill held a note against Finch for $100, which Merwin was liable to pay as endorser.

In Equity. The bill in this cause was an ordinary bill of foreclosure.

This was a motion for an injunction. The plaintiff alleged in his complaint, that Isaac Lawrence died on the 12th of July 1841, intestate, and that letters of administration upon his estate were granted by the surrogate of New-York to John L. Lawrence.

This was an action on the case for a nuisance, tried at the Schenectady circuit in October, 1844, before Parker, circuit j udge.

Motion to set aside report of referees. On the 24th of October, 1842, an agreement in writing and under seal was entered into, between the parties to this suit, whereby the defendant agreed to sell to the plaintiff a farm in the town of Ghent, containing 175J acres, at $70 per acre, subject to a deduction of $142,50; a quit-claim deed, with covenants against his own acts, was to be executed by the defendant on the 15th of December following.

In Equity. On the 8th of August, 1838, Gideon Tucker made his will to pass real and personal estate, in which he devised to his widow the use, rent and income of his dwelling house during life or widowhood, and $1500 a year which he charged on his real estate in White and Chappel streets, in the city of New-York.

Motion to set off a judgment-. Previous to September, 1845, and in that year, Palmer sold Harris the wood work of a wagon.

In Equity. The complainant purchased certain effects of the St. Lawrence Bank, at a receiver’s sale, which took place by the order of the chancellor. This was his title to the claim he was endeavoring to enforce by this suit.

This was a petition by Thomas Van Allen and Maria his wife, for the partition of lands situate in the town of Canajoharie, in the county of Montgomery, in which the petitioners, in the right of Mrs. Van Allen, claimed to have an estate of inheritance in one equal undivided third part, under the last will and testament of Rynear R. Van Evera, deceased.

<p>The privilege of a foreign consul to he exempt from the jurisdiction of state tribunals, must be asserted in due time; and may be waived by a plea to the merits.</p> <p>After a defendant has pleaded to the merits, and a verdict has been rendered against him, he cannot avail himself of his privilege as a foreign consul, by affidavit, upon a special motion.</p>

Demurrer to the plea of the defendant. The defendant was indicted in the county of Monroe, for bigamy. He pleaded to the indictment, admitting both marriages, but setting up in his defence a decree of the court of chancery, dissolving the marriage with his first wife, obtained upon a bill filed by her, charging Mm with adultery. The decree was in the usual form.

Motion to set aside report of referees. The action was assumpsit, for labor and services. The plaintiff’s mother married the defendant when the plaintiff was about nine years of age, and the plaintiff then went to live with the defendant, with his mother. He continued to reside there until he was about seventeen, when he left the defendant, and did not return.

<p>In Equity. The plaintiff excepted to the answer of the defendants Floyd and Beidleman, and on a reference to a master the exceptions were allowed. On exceptions by the defendants to the master’s report, the decision of the master was reversed, by Justice Shankland, at a special term of this court held by him. And from the decision made at the special term, the plaintiff appealed to the general term of the court. The facts are as follows: The plaintiff filed his bill against Floyd, Davis and Jacob Beidleman, to foreclose a mortgage executed by Floyd to Davis for $4000, and by Davis sold to Morris, the plaintiff, with a guaranty of the payment. The defendants, Floyd and Beidleman, put in a joint answer, setting up the defence of usury, and alleging that Floyd and others, as partners, being pressed for money, applied to the plaintiff for a loan; and that it was then agreed that the bond and mortgage in question should be made by Floyd to Davis, for the purpose of being sold to the plaintiff at a discount of $400, as a usurious premium; and that it was thus made and sold; that Floyd afterwards mortgaged the same premises, with others, to Henry S. Beidleman) for $500, who foreclosed the mortgage in 1843, Under the statute, and bid in the premises, and afterwards sold them to the defendant Jacob Beidleman, subject to the mortgage to the plaintiff. The deed to Jacob Beidleman was not recorded until after the plaintiff had foreclosed under the statute, in 1846. The plaintiff sued Floyd on the bond, in 1845, and obtained judgment thereon for the amount of the penalty of said bond ; but no part thereof had ever been paid, or Collected. The plaintiff excepted to the answer as impertinent in several particulars; and the exceptions having been sustained by the master, the defendant excepted to his report as to the first, fourth, fifth, sixth and seventh exceptions. The seventh exception was to all that portion of the answer which set up the defence of usury, and was founded on the statements in the bill and the admission in the answer that judgment had been obtained on the bond against Floyd, and as to the statute foreclosure on the plaintiff’s mortgage; and the plaintiff insisted that the defendants were estopped from setting up the usury, or any other defence. And it was further claimed that as the deed from Henry S. Beidleman to Jacob Beidleman was taken subject to the plaintiff’s mortgage, Jacob Beidleman could not set up the defence of usury to that mortgage ; and also, that as his deed was not recorded at the time Morris commenced foreclosing his mortgage, that foreclosure was good as against him, although notice was not served upon him as a subsequent alienee of the mortgaged premises. The mortgage to Davis was dated October 18th, 1841, and recorded on the same day. On the 25th of October, 1841, it was assigned to the plaintiff, and was foreclosed under the statute, June 25th, 1846. The mortgage from Floyd to H.- S. Beidleman, was dated 26th March, 1843, and recorded the same day. It was foreclosed under the statute, on the 26th of June, 1843, and affidavits of sale recorded June 27th, 1843. The deed of warranty, subject to the mortgage for $4000 given by Floyd to Davis, was acknowledged on the 12th of August, 1843, and recorded April 9tb, 1846.</p>

In Eütjity. The bill in this cause was filed for the purpose of compelling the specific performance by the defendant of ■ a contract for the purchase of a piece of land belonging to the plaintiff, situate in the town of Bethlehem, Albany county.

<p>It is competent to prove the fact that a judgment which had been recovered against the plaintiff was entered up on a note received from the defendant, without producing the note.</p> <p>Evidence that a person who had negotiated the sale of land to a third person, for the owner, by agreement with the latter was to have a certain portion of the proceeds of a bond and mortgage given for the purchase money, is proper, in a suit between the parties, and is a good foundation for a subsequent promise by the vendor to pay the amount.</p> <p>Where a witness, after testifying to a conversation, is asked, on his cross-examination, what reason he had for remembering the conversation, and gives as a reason, a declaration made by one of the parties, at the time, no objection being made to the question by the opposite party, the counsel asking the question cannot repudiate the testimony after the witness has answered the question.</p> <p>It is not competent for a defendant to prove his own declarations made when the plaintiff was not present, although'they were made to a tbdrd person in a conversation which took place by the plaintiff’s request.</p> <p>Evidence as to the object for which a release was executed cannot be admitted for the purpose of attempting to change the legal effect of the release: but it is proper to prove that it was executed to a witness, on the trial of a cause, with the view of showing at what time it was given, and that it was not the consideration of the assignment in question, so as to take it out of the statute of frauds.</p> <p>Under a count for money had and received a party cannot recover from another a sum of money which it was his duty to collect, but which he had failed to collect, by reason of an error in computation made by his attorney.</p> <p>It is a general rule that the action for money had and received will only lie where money, or its equivalent, has been received by the defendant.</p>

This was an action brought by husband and wife, for an assault and battery on the wife, tried at the Columbia circuit, before Justice Cady, in October, 1848. The plaintiffs, some time after their marriage, had joined the society of Shakers, at New Lebanon. The husband abandoned the society, and afterwards, in August, 1847, went back to New Lebanon for the purpose of taking away his wife.

This was an action of covenant, on an agreement of which the following is a copy: “Articles of agreement, made and agreed upon the twenty-fourth day of August, in the year one thousand eight hundred and forty-five, between Robert Y. Grant, of the town of Neversink, and John Johnson, of the town aforesaid, of the second part, witnesseth, that the said party of the first part for the consideration of the sum of nine hundred and fifty dollars, to be paid as follows, to wit, two…

This was a suit brought to recover upon the official bond of Cornelius Schuyler, former sheriff of Rensselaer county. The bond was in the penalty of ten thousand dollars, dated Ja-huary 13, 1840, with the following condition: “Whereas the above bounden Cornelius Schuyler hath been elected to the office of sheriff of the county of Rensselaer, at the general election held therein, on the sixth, seventh, and eighth days of November, 1837.

This was an appeal by the defendants, from the Saratoga county court. The action was assumpsit, and was commenced in that court after the first Monday of July, 1847, and was tried in the term of January, 1848. The parties were inhabitants of the county of Saratoga, and the sum claimed in the plaintiff’s declaration did not exceed $2000. The jury found a verdict for the plaintiff for $208,78.

In Equity. The bill in this cause was filed before the chancellor, on the 24th of October, 1843, to set aside a certain agreement made by the directors of the St. Lawrence Bank with the defendant, one of the stockholders, in December, 1841, by virtue of which the defendant paid up a bond and mortgage given by himself to the said bank for five thousand dollars and surrendered his stock, on receiving five one thousand dollar bonds of the Arkansas stock.

In Equity. This was an appeal, by the defendants, from a decree of the late vice chancellor of the first circuit, declaring ■the invalidity of the last will and testament of the late William W. Gilbert deceased. The case before the vice chancellor, with his decision thereon, is reported in 3 Sandford’s Chancery Reports, 531; where the fg.cts are fully stated.

<p>On the trial of an indictment for a misdemeanor, in exposing the bodies of the defendants, naked and uncovered, to the public view, the intent with which the act was done is a material ingredient in the offence, and is a question of fact, for the consideration of the jury, under all the circumstances of the case.</p> <p>It is for the jury to find whether there has been an intentional, wanton and indecent exposure of the persons of the defendants, at such a time and place, and in such a manner, as to offend against public decency. And a charge which withdraws that question from the consideration of the jury, as a question of fact, is erroneous. '■</p>

The action was debt on a bond or recognizance entered into by Dennis Daly, and P. Duffy as surety, in the penalty of $>500. The suit was against the latter only.

This was an appeal from an order made by one of the justices of this court, at a special term, directing a reference for the appointment of a receiver pendente lite.

This was an action of assumpsit brought against the defendant as a stockholder of the Rossie Galena Company, to recover from him the amount of a judgment against the company, in favor of the plaintiffs, for goods sold and delivered to the company while the defendant was a stockholder.

This was an appeal by Clayton and wife, from a decree of the surrogate of the city and county of New-York, declaring that Mrs. Clayton was not the legitimate child of George Mes-serve deceased.

This was an action of assumpsit, tried at the New-York circuit in March, 1848, before Justice Edwards. The plaintiff declared upon two drafts or warrants, one for $2661,27, dated May 1 Oth, 1847, and one for $300, dated May 11th, 1847. The first was in the words and figures following: “New-York, May, 10, 1847. No. 2557. $2661,27. To the Treasurer of the city of New-York, at the Bank of the state of New-York.

In Equity. These causes came before this court on appeal from a decree of the late vice chancellor of the first circuit, made upon an original… Held: then that he may have the benefit of a deed of appointment executed by her under the date of the 19th of November, 1841, purporting to give him one-half of the net income of the whole estate, real and personal, during his natural life: and the bill calls upon the two brothers of his wife, either to yield the possession of the…

This was an action of debt brought against the defendant, as sheriff of the county of Cayuga, for the escape of one Norris King, from the custody of said sheriff, while under arrest by virtue of a writ of ca. sa. in the hands of the sheriff, in favor of the plaintiff, against said King.

In Eciuity.x The object of the bill in this cause was to revive a decree obtained in the court of chancery, in the year 1840, by the American Life Insurance and Trust Company against Abraham Varick and others, in a foreclosure suit, and to have execution for the deficiency remaining due and uncollected, upon a sale of the premises under the decree.

The action was trover, brought in a justice’s court by Bort against Smith, for a quantity of grain. On the trial before the justice the plaintiff proved by Jonas Rice that the defendant occupied a farm in the town of Danube, which farm was occupied by the plaintiff in 1845.

Norton sued Moulton, Lewis and Carter, in the court below, in an action of trespass for taking a quantity of grain, hay, a span of horses, a cow and other property, and carrying away and converting the same.

In Equity. This was a bill for a discovery in aid of the prosecution of a suit at law commenced by Bailey against Dean for slander of title, libels, malicious prosecution, &c. The bill set forth a great number of usurious transactions between Bailey and Dean, extending over a period of nearly twenty years.

Motion by the plaintiff to set aside the report of a referee. The action was debt on an agreement under seal, brought in this court to recover money paid by the plaintiff to the defendant. The declaration was in the ordinary form in debt on the contract, adding the money counts.

This was an appeal,, by John Sholl, from a decree of the surrogate of the county of Herkimer.- The petition of appeal alleged that Christian Sholl, late of the- town of Danube, Herkimer county, made and executed in due form of law, his last will and testament, on the 4th of February, 1845, and died soon afterwards, leaving the same in force.

This was an action of assumpsit. The declaration contained the common money counts, and counts on an insimul computassent, and also counts for lands sold, and for the unexpired term of a lease sold to the defendant. There was a bill of particulars-, in which the plaintiff claimed the sum of $240, specified as the consideration of a conveyance of lands executed by the defendant to the plaintiff, on the 28th of Nov. 1846. Plea the general issue, with a notice of payment.

This was an action of ejectment, brought by the plaintiff to recover her dower in certain lands in the county of Herkimer. The cause was tried at the Herkimer circuit in October, 1848, before Justice Gridley, without a jury.

Motion by the defendants, to set aside a report of referees' in favor of the plaintiff for $ 150. The action was trespass on the case; plea the general issue. The facts are sufficiently set forth in the opinion of the court.

Ejectment for a farm, situated in the county of Otsego, tried at the circuit in that county in July, 1848, before Justice Morehouse.

Demurrer to pleas. The action was debt on a criminal recognizance. The facts set forth in the pleadings, and the questions of law raised by the demurrer, appear from the opinion of the court.

Trover, brought by Wm. 0. Pierrepont and others, executors of H, B. Pierrepont, deceased, to recover the value of a quantity of lumber alleged to have been taken and converted by the defendant. The cause was tried at the OswegO'circuit, in June, 1845, before Gridlev, circuit judge. The plaintiffs’ declaration was in the usual form, for a trover and conversion; and the defendant pleaded the general issue.

<p>To a declaration in assumpsit the defendant pleaded that under proceedings in bankruptcy, instituted by the plaintiff, a decree had been obtained by which all the plaintiff's property, including the promise in the declaration mentioned, was vested in T. B., the assignee appointed by the court. The plaintiff replied that after the said decree, T. B., the assignee, for a valuable consideration, paid to him by the plaintiff, duly sold, transferred, and assigned to the plaintiff all the right, title, and interest of the assignee td the promises, &c. in the declaration mentioned; Held, that the replication was not bad, for want of an averment that the sale and transfer by the assignee to the plaintiff were made in pursuance of an order of tlie cowrt} and that a general averment of the sale and transfer was good oú general demurrer;</p> <p>A pleading which sets up two good defences and is therefore double, and which omits to state the time and place when and where the several acts set up in the pleading took place, is bad on demurrer.</p>

The action was trespass, originally commenced before a justice of the peace, but was discontinued there, in consequence of the defendants’ pleading not guilty, and giving notice of title to the land in question. The cause was thereupon removed to the common pleas, and the plaintiff declared in trespass quare clausum fregit, for breaking and entering a certain close and dwelling house of the plaintiff situate in the town of La Fayette.

Demurrer to the plaintiff’s declaration. The action was debt, brought by the plaintiff as late sheriff of Oswego county, upon a bond given to the plaintiff by the defendant Richardson and the other defendants as his sureties, upon Richardson’s being appointed by the plaintiff deputy sheriff.

Motion to set aside report of a referee. The action was assumpsit, brought by the plaintiff as administrator of John Bucklin, jun. deceased, against the defendant as executor of John Bucklin, senior, deceased.

In Eq.uity. The plaintiffs filed their bill in this suit on the 6th of Sept. 1845, to obtain payment from the estate and devisees of Henry Deifendorf, the father of the defendants, for money paid by Henry Elwood as surety for Henry Deifendorf.

Assumpsit for money had and received. The cause \yas. tried before Dayton, C. J., at the Monroe circuit, Sept. 28, 1844. The suit was commenced on the 19th day of June, 1843.

In Equity. The bill in this cause was filed on the 28th of April, 1840, by John Proseus, who was then alive, to compel a conveyance by the defendant of the east half of the north half of lot number three in second range of lots in township number fourteen in the first range of towns in the county of Wayne, the whole lot number three containing about three hundred and twenty-four acres.

In Equity. This cause was heard on bill and answer. The bill was an ordinary creditor’s bill, in the usual form. The bill called for a discovery of the defendant’s property, upon oath.

This was an action of debt, on an administrator’s bond, given by one Nancy Newkirk as administratrix, Sec. and by the defendant and one James Greenman, as her sureties. The bond was in the usual form, required by the revised statutes.

This cause was tried before Justice Willard, at the Sara-toga circuit, in August, 1848. The suit was brought upon two joint promissory notes for $50 each, dated November, 10,1843, given by the defendants Green, Alonzo Hyde, James E. Spier and John Ellsworth, to the plaintiff, payable, the one, one year after date to the plaintiff or bearer; and the other two years after date, to the plaintiff or bearer. Green and Hyde signed the notes as sureties for the other drawers.

This was a motion on the part of the plaintiff to set aside the report of a referee made in favor of the defendant Corey. The suit was commenced in 1844, by a declaration containing the money counts alone, on a joint note given by Abraham Shuler and Francis Newkirk to Henry Randall or bearer, dated December 17, 1836, payable two years after date, and endorsed by Martin J. Borst, David P. Corey, and Timothy Livingston.

^ This was an action for false imprisonment, against the defendant, for directing the plaintiff’s arrest on a criminal warrant; The cause was tried at the Warren circuit in August, 1848, before Justice Parker. On the 21st of February, 1848, the defendant made a complaint to one Hart, a justice of the town of Watervliet in the county of Albany, that a criminal offence had been committed by the plaintiff. Such complaint was reduced to writing and verified by the defendant.

Motion to set aside the report of a referee. The action was assumpsit.

This was a complaint filed by the plaintiff, who is the wife of the defendant, against her husband, to protect what she claims to be her rights in relation to her real estate, and to re-, strain the defendant from interfering with the same.

In Equity. Demurrer to bill of complaint; and motion to dissolve injunction founded on the bill alone.

The action before the justice was for the recovery of the money due on a promissory note made by Andrew Cole, payable to the order of Benjamin Dole, and endorsed by him. Dole being served with process, appeared before the. justice and pleaded the general issue.

This was a motion by the defendants to set aside the report of a referee. The defendants were parties doing business at Williamsville in Erie county, and the plaintiff a merchant doing business in Buffalo. The defendants were the holders of a promissory note payable to them or bearer, one year after date, for $358,61, made by Benjamin Troule, and dated “ Bertie, Feb. 17, 1845.” The note was not, by its terms, payable at any particular place.

Debt on recognizance. The'declaration alleged that heretofore, to wit, on, &c. at, &c. one Matthew Kirby was brought before John O. Cole, a justice of the peace and police justice of the city of Albany, charged on the oath of the defendant John Millis, and others, with having assaulted and beaten the said John Millis with a deadly weapon with intent to kill him the said John Millis.

Replevin, tried at the Greene circuit, in April, 1848, before Harris, justice. The goods replevied were taken by the defendant from the possession of one Peter Dutcher, by virtue of an execution against him in favor of Daniel C. Scudder.

In Equity. On the 27th day of September, 1843, the plaintiffs recovered against the defendant as endorser of a note for $200, made by one Ellis, a judgjnent for $259,60. They had, on the 30th of March previous, recovered a judgment against Ellis for $843,68, upon other demands against him, including also the note endorsed by the defendant. A part of the judgment against Ellis was paid by his assignees.

<p>B. B. on the 2d of January, 1833, being the owner of a farm of about 130 acres, conveyed the same with the exception of two acres, to his son J. R. B. The consideration expressed in the deed was $300; and the grant was declared to be subject to the support and maintenance of the grantor and his wife during their lives. On the same day J. R. B. executed to L. a deed of the farm, similar in all respects to the deed executed by R. B. On a bill by R. B, praying that J. R. B. and L. might be decreed to release the farm to the plaintiff, and that the conveyances might be declared fraudulent and void, &c., it appeared from the proofs that at the time of the execution of the deed from the plaintiff to J. R. B. the latter had for several years exercised almost unlimited control over the former, and had acted as his general agent, and transacted most of his business ; that the plaintiff had become old and feeble, and in the management of his affairs depended on the aid and counsel of his son, who had thereby acquired great and controlling influence over him ; that J. R. B. proposed to the plaintiff that he should convey all his property to himself and L. his brother-in-law, reserving to R. B. and his wife a support; that to induce him to comply with their proposal, J. R. B, and L. referred to his present weakness and infirmities—told him that he had become old and foolish—alluded to the evidence of his imbecility in the fact of his having signed papers which he ought not to have signed, and advised him to place his property in the hands of L. as a trustee, and thereby secure a support for himself and his wife. In consequence of which representations R, B. executed the deed, and J. R. B. and L. became vested with the title to his entire estate, worth from 4 to $6000 over and above the incumbrances, without having paid any consideration whatever, or incurred any liability, beyond a personal covenant to support the grantor and his wife for life.</p> <p>Held that R. B, was induced to execute the conveyance by means of an undue influence exercised over his free will by J. R. B. and L.; and that the case was within the principle and policy which govern courts of equity in avoiding deeds obtained under such circumstances.</p> <p>Held also, that the relation of both child and confidential agent which J. R. B. sustained to the grantor brought the case within the equitable rule that he who bargains in a matter of advantage, with a person placing confidence in him, is bound to show that a reasonable use has been made of that confidence.</p> <p>Held fwther, that L. was not in a situation to claim protection as a bona fide purchaser; it being sufficient that he received his conveyance infected with the undue influence and imposition of his grantor. That the obligation of restitution followed it into his hands, though he might not be guilty of actual fraud himself. And held that the general rule that in cases of fraud the whole transaction will be undone, and all the parties replaced in their former situation, would not allow him to avail himself of Iris own innocence, to protect the property against the person who had been deprived of it by fraud or imposition.</p> <p>Where a bill is filed to set aside a conveyance, on the ground of undue influence if the facts alleged in the bill are sufficient to justify the inference of undue influence, and the proofs sustain the allegations, relief will not be denied because the plaintiff, in stating his cdse, has averred that the transaction of which he complains occurred through mistake, or misapprehension, or by fraud and deceit</p> <p>L. went to R. B., whose son, J. R. B. was in prison under an indictment for perjury, and informed him that he came at the request of his son, and that W would unite with him, L., in becoming bail for J. R. B. if R. B. would give L. a warranty deed of his farm; assuring him that the deed was only for the appearance of J. R. B. at court, and would be given up if he stood his trial. R B. accordingly executed an absolute deed to L., with that understanding. Nr such deed having, in fact, been required by W., and the pretence of its being necessary, to procure bail for J. R. B. being false; Held, on a bill filed by R B. to set aside such deed on the ground of fraud, that the same was improperly obtained, and should be declared void, as between the grantor and grantee.</p> <p>In order to defend a title on the ground of a bona fide purchase, it must be shown that the purchase was made for a valuable consideration, and without notice of any prior equity.</p> <p>When a person, other than the vendor, is in possession of land, the purchaser has constructive notice of the rights of the possessor, and takes the land subject to all his equitable claims.</p> <p>The possession of such third person is sufficient to put the purchaser upon inquiry as to the extent of his rights. And those claiming under the title of such purchaser cannot defend on the ground that he was a bona fide purchaser without notice.</p>

This suit was commenced by writ of nuisance, and the de-fendants were summoned to answer wherefore they kept up and' continued a certain dam, to the nuisance of the freehold of the plaintiff.

The defendant Russell, on the 2d of January, 1847, was initiated as a member of Eagle Tent No. 174 of the Independent Order of Rechabites, .in De Ruyter. The initiation fee was five dollars, one of which was paid as proposition money, before his election, and the remaining four, though required by the law to be paid before the ceremony, was not. By the constitution of the order, every member is to contribute to the funds of his tent not less than one dollar per quarter.

<p>Where there is a conflict of evidence, upon a trial in a justice’s court, the verdict of the jury, so far as questions of fact are concerned, is conclusive, and cannot be reviewed, on writ of error, however much the verdict may be' against the weight of evidence.</p> <p>And where the facts which the evidence upon one side tends to establish would entitle the party to a judgment, if found in his favor, the judgment is conclusive, however clearly the jury may have found against the weight of the evidence.</p> <p>Purchasing liquor, at an inn, is sufficient to constitute the purchaser a guest.</p> <p>If a person, after becoming a guest at an inn, goes away for a brief period, leaving his property, intending to return, he is to be considered as still continuing a guest; and if his property is lost during his absence, the inn-keeper is liable.</p> <p>It is not necessary that goods should be placed in the special keeping of an innkeeper in order to make him liable in case of loss. If the owner is a guest, and his goods are within the inn, that is sufficient to charge the inn-keeper.</p>

Ejectment, tried at the Saratoga circuit, in June, 1848, before Justice Hand, when a verdict was taken for the plaintiff, subject to the opinion of the court, on a case. The facts appearing in evidence, and the points raised upon the trial, are sufficiently detailed in the opinion of the court.

<p>Where a plaintiff, in an action in a justice’s court, claimed, in his declaration, damages to the amount of “ one hundred dollars and over,” but took judgment for less than $100 ; Held, that there was no error : the words “ and over ” being void for uncertainty.</p>

This was a certiorari issued under thé act to abolish imprisonment for debt, and to punish fraud ulént debtors, passed April 26,1831, to reverse an order made by T. J. Marvin, Esq. then first judge of Saratoga county courts, committing the plaintiff in error to jail, for fraudulently concealing property. The proceedings were instituted under the said act on the 28th of June, 1847.

In Equity. The bill in this cause stated that on the 4th day of April, 1837, the plaintiff and Charles A. Baker, Theodore Wood and Gardner Lawrence made their promissory note for $2000, payable one year from date with interest, to Daniel J. Shaw, the defendant, or bearer, and on the 24th of the same month delivered the same to the payee; the plaintiff signing the same “ as security” for the other makers.

<p>Where a demised building is destroyed by fire, between the execution of the lease and the commencement of the term, and before the lessee has taken possession of the premises, he is not liable to pay rent.</p> <p>Until the term commences and possession is given of the demised premises, a lease is an executory contract on the part of the lessor, for a breach of which he may be prosecuted, in the same manner as upon any other executory con•tract. And it is the same on the part of the lessee. Per Johnson, P. J.</p> <p>Previous to the commencement of the term, the rights of the parties to a lease rest in mere contract. Per Johnson, P. J.</p> <p>The surrender of the possession, by the lessor, to the lessee, is a condition precedent to the right of the former to demand, or the obligation of-the latter to pay, rent.</p> <p>And the rule is the same whether the lessor refuses or is unable, to give possession.</p>

Error from the Orleans common pleas. The suit was originally commenced before a justice of the peace. The declaration before the justice was in case. Secor, the plaintiff in the justice’s court, declared against Prosser and others (the plaintiffs in error) as assessors, for assessing him as a taxable inhabitant of the town of Kendall in the county of Monroe, in the year 1844.

In Equity. This case came before the court upon pleadings and proofs, in pursuance of an order made at special term directing the hearing to be had at general term. The facts, so far as are necessary to be stated in order to understand the opinion of the court, were substantially as follows: On the 9th day of December, 1837, the defendant Charles H. Carroll wrote to the president of the Farmers’ Loan and Trust Company as follows, viz.: “ New-York, Dec. 9 th, 1837.

Motion by the defendant fov a new trial, on a bill of exceptions. This was an action on the case, for the seduction of Mary Ann Campbell, the adopted daughter and servant of the plaintiff, and was tried at the Erie circuit in October, 1848.

<p>Where a lease contains a covenant on the part of the lessees to surrender up the possession of the premises, at the expiration of the lease, in the same condition they are in at the date of the lease, natural wear and tear excepted, but there is no covenant to repair or rebuild; and the buildings are destroyed by fire during the continuance of the term, the tenants are not bound to put up new •, buildings in the place of those destroyed.</p> <p>But where fixtures attached to, and constituting a part of the demised premises, are severed by the fire, and are subsequently carried away by the lessees and not returned, they do not thereby lose their identity, but are fairly within the agreement to surrender at the end of the term; and the lessor may recover their value, in an action upon the lease.</p>

This was an appeal from a judgment of the recorder’s court of the city of Buffalo. The action was brought by the plaintiff as administrator of James E. McKnight deceased, against the defendant as endorser of a promissory note of which the following is a copy: “ $150. Buffalo, 30th April, 1847. Sixty days after date, I promise to pay to the order of Samuel Lewis, one hundred and fifty dollars, value received, at O. Lee &. Go’s Bank. (Signed) Anderson Deckie.

Demurrer to pleas. The defendants, by deed dated August 28, 1841, containing the usual covenants of warranty and for quiet enjoyment, conveyed to the plaintiff a piece- of land in Gainesville, Wyoming county. On the lst day of March, 1843, the plaintiff was evicted by title derived under a mortgage, which was an incumbrance on the land at the time of the conveyance. And the action was. brought on the covenant in the deed, to recover the damages for the eviction.