Volume 5 — Cowen's New York Reports

This cause had been submitted to referees (under the statute) who reported for the plaintiff: whereupon the í r defendant’s attorney moved to set the report aside, upon several affidavits made by the defendant before commissioners in the city of Albany; and the motion was heard upon . _ - - -. .. — - - the calendar, and granted several terms ago ; hut the defendant’s attorney omitted to file the affidavits upon which J r the motion was founded.

J. Pierson moved for judgment as in case of nonsuit, for not proceeding to trial, pursuant to notice, at the last Rensselaer Circuit. The plaintiff had stipulated to try at that Circuit.

This cause, which was assumpsit, being noticed for trial at the last Saratoga Circuit, the defendant’s counsel, on an affidavit of Payne, that H. F. L. the attorney for the plain-v 1 , tiff, was a material witness for him in the cause, as he was advised by counsel and verily believed to be true; that he could not safely proceed to trial without his testimony; that he had endeavored to subpoena him, but he had gone a journey as he was informed, to Philadelphia, and that he…

<p>Putting in special bail without process, warrants the plaintiff’s proceeding against the defendant, as if process had been served.</p> <p>And where the capias ad respondendum was returnable on Sunday; yet held, that putting in special bail, tho’ without knowledge of the defect, was a waiver of it.</p> <p>And so, it seems, even if it had been served on Sun. day.</p>

After verdict for the plaintiffs, they respectively obtained thoir discharge under statute of insolvency, after assigning all their property for the benefit of their creditors. The cause being noticed for argument on the part of the plaintiffs, upon a bill of exceptions taken by the defendant at the trial, A It was now moved that all proceedings on the part of th plaintiffs should be stayéd, till security for costs filed.

<p>Where the action for rent is founded on privity of contract, as between the lessor and lessee, it is transitory; otherwise if on privity of estate, as where an assignee is a party.</p>

Haywood sued Miller before a Justice of Columbia; Miller pleaded the general issue, and a special plea. To the latter, there was a demurrer, upon which the justice gave judgment against Haywood, who appealed to the Columbia Common Pleas; but that Court quashed the appeal upon the authority of Peters v. Parsons, (18 John. Rep. 140;) and Breese v. Williams, (20 id. 280.) And now,

In trover, by Ward against Esty, in the Ontario 0. P Howell, First Judge, a counsellor at law of this Court, was v ' 7 not present at the trial, or any part of it; but the verdict f01 the plaintiff, he consented, on a motion afterwards made, that a new trial should be granted, on the merits.

<p>On a motion for a now trial on account of newly discovered evidence, or to set aside the report of referees upon the merits, and other enumerated motions founded upon affidavit, counter affidavits may be read without being previously served on the party moving.</p>

<p>. If the party making a case, do not serve a copy of it upon the opposite party, at least four days before the term at which it is noticed for argument by the opposite party; on an affidavit of this fact, and of service of notice of argument, the relief sought by the case will bo denied.</p>

S. A. Foot, moved to bring on the argument of this cause upon affidavits made for the purpose of a motion to set aside the report of referees upon the merits.

Assumpsit, tried at the Washington Circuit, June 16, 1825. before Duer, Circuit Judge. The plaintiffs, on the trial, produced in evidence, a promissory note, made by the defendant, to Samuel Topliff, or bearer, dated 16th February, 1820, for $44 99, payable six months after date, the execution of which was admitted. The defendant then called Samuel Topliff as a witness, who was objected to by the plaintiffs’ counsel, and rejected oy the Judge.

The bail in this case having become fixed by a return of the ca. sa. in the original cause, of Thomas v. Coffield, a capias ad respondendum was issued to the sheriff of the 1 1 tity and county of New York, against the hail, and served, • returnable the 4th day of August last.

In waste. One Ellis was the grantee in, and had possession of a deed constituting a link in the plaintiff’s deduction of title; and on an affidavit that he withheld the inspection of this deed from the plaintiff, by means whereof he was embarrassed in setting out his title in the declaration, and could not safely try his cause,

The Court of Common Pleas of Warren county quashed an appeal from a Justice’s Court, brought by Eastabrooks against Rockwell, because the penalty of the appeal bond was more than double the amount of the judgment rendered by the Court below. A motion was now made for a mandamus, commanding the Court of Common Pleas to vacate the rule quashing the appeal, and to proceed in the cause.

In partition. It was submitted to the Court, whether the attorney for the plaintiffs should be allowed in taxation of costs upon a judgment against the defendants, a brief, and an attorney and counsel fee on each ordinary motion in the course of the cause; and

Yasq.ues and M’Reever had submitted certain matters n difference to arbitrators, and agreed that the submission should be made a rule of the Court of Common Pleas of the city and county of New York.

The plaintiff unexpectedly failing at the trial to establish by proof the absence from the state of a subscribing witness to the bond on which this suit was brought, so as to let in secondary evidence; on his motion, the Circuit Judge allowed him to withdraw a juror; and the cause went off for the circuit. And, now,

The Court of Common Pleas of Saratoga were moved to set aside the docket, or record of a Justice’s judgment against C. &• A. Thompson, in favor of Newcomb, and the execution thereon issued by the county clerk; upon affidavits, that before the transcript was filed, the judgment had been paid and satisfied by the Thompsons. This motion was denied by the C. P. upon the ground that they had no jurisdiction j x o j j of the matter.

November 8th. After the Court had finished the regular hearing of non-enumerated motions for the term, A. Spencer moved for a mandamus to the first Judge oí the Court of Common Pleas of the city and county of New York, commanding him to vacate certain orders which hi had made on the 1st inst. discharging one Smith upon com mon bail, in certain actions brought against him in that Court by Brown. Notice of the motion had been given for to day.

On dismissing an appeal as irregularly brought, by Davis and Sowle against Waugh, from a justice’s court to the C. P. of Monroe, the parties being in Court, and the motion being opposed, that Court awarded costs of the motion against the appellants; and now,

In ejectment, the judgment being for the plaintiff, and a writ of possession executed, at the last term, the defendant moved for and took a rule for leave to turn the case made in this cause into a special verdict, for the purpose of bringing a writ of error; and the rule was also, that, until the writ of error should he determined, no action for the mesne profits should be brought; and now, oil producing a certified copy of the rule; and on notice of a motion for that…

and O. Titus, against Schermerhorn, the C. P. of Dutchess dismissed the appeal, on the ground that the appeal bond was executed by only one of the appellants, being signed and sealed by him thus; 11 Stephen & Obadiah Titus, (L. S.)” On the Judges’ showing this for cause, A motion was now made for a peremptory mandamus, commanding them to set aside their rule dismissing the appeal; and to proceed upon it.

On appeal to the C. P. of Jefferson county by Holbrook, Fessenden, Adams and Lee, against W. & I. Symonds, the Court quashed the appeal, because the appeal bond was executed by C. Rice, as attorney for Holbrook and Fessenden.

This cause was removed by certiorari to this Court from the C. P. of the city and county of New York, after the plaintiff had declared in the Court below., After the return of the certiorari, on the 23d of August last, the plaintiff entered with the clerk of this Court, a rule to plead to the declaration in the Court below, of which he gave the defendant notice ; and, for want of a plea within the usual time, entered a default.

In covenant, the plaintiff declared, assigning several breaches, to which the defendant pleaded two pleas, tendering an issue to the country, which were not demurred to. Nearly two years after, he entered a rule to amend, and pleaded, under the rule, four additional pleas.

Charles Tayloe was committed to the common jail of the county of Columbia, during the present term, for having slain one Crandall; but the warrant of commit ment did not recite enough to show a proper cause of commitment ; and the Court, at an early day in the present term, granted a habeas corpus ad subjiciendum, returnable before them, with a view to inquire whether the prisoner should be bailed.

Assumpsit on a policy of insurance, tried at the New York circuit, November, 1823, before Edwards, C. Judge, The action was brought to recover as for a total loss on a policy dated July 28th, 1820, underwritten by the defend- , * ants, m favor of the plaintiff, upon one-half of the ship Manchester Packet, on a voyage at and from Havana to Rotterdam, at a premium of 2J- per cent, the sum subscribed to the policy being $2000 ; and one-half the vessel valued by the policy at…

Ejectment, commenced in May, 1822, for a farm in Fishkill, Dutchess county, tried before Betts, C. Judge, at the Dutchess circuit, July 7th, 1823.

Ejectments, to recover an undivided fourth of part of lots 5 and 10, in Golden’s tract, in Croghan’s patent, intha town of Burlington, in Otsego county, tried at the circuit in that county, September, 1823, before Nelson, C. Judge.

Case for seduction, tried at Otsego Circuit, February 12th, 1824, before Nelson, C. Judge.

Ejectment, for land in the town of Halfmoon, Saratoga-county, tried at the Saratoga circuit, July 30th, 1323, ueiore Walworth, C. Judge; when a verdict was taken for the plaintiff, subject to the opinion of this Court, on a case to be made, with liberty to either party to turn ic into a bill of exceptions, or special verdict. A case was accordingly made and argued in October term, 1824, by

On demurrer to the declaration. This was of a plea of breach of covenant; and stated that on the 21st of February, 1814, the defendant, by indenture between him and one Hamden, did grant,- &e. to Harnden in fee, certain lands, (describing them); and that he did covenant, &c. with Harnden, his heirs and assigns, &c. to warrant and defend the premises, The defendant craved oyer of the indenture between Harnden and the plaintiff, which was granted; and the indenture set forth,…

Assumpsit, tried at the Oneida circuit, July, 1823 before Williams, C. Judge. The action was upon a written contract in these words: “ April 15th, 1819. For value received, we promise to pay and deliver to John Spencer, or bearer, three hundred and sixty dollars, or twelve good middling cows, and twelve good calves which come of said cows above mentioned, to be paid and delivered at the dwelling house of said Spencer’s now is in, four years from the date, in Verona.

On error to the Onondaga C. P. The action in the court helo vv was assumpsit, hy Pinney against Gleason, upon several notes, due at different times, in this form : 7 “ For value received, I promise to to pay John Pinney, seventy-nine dollars, fifty cents, on the first day of August, 1822, in salt, at fourteen shillings per barrel, in good boat- . ’ ’ . , _ „ b „ ’ b mg order. Liverpool, June 30th, 1820.

<p>The clerk in boundNo5produce its books, duces tecum.</p> <p>Where it appeared that a bank bad kept books or memoranda, in whudl the7 en~ tered the time, manner and co™tm°noteT; Md, on a suit against6 an eí d?rser> UP°“ discount, that it was not com-potent for him to show the custom of the bank, under the direction of the cashier, to take ail usurious discount in all cases, from the creation of the bank till after the particular note had been discounted, without first showing that notice had been given to the bank to produce the books and memoranda on the trial, which had not been complied with.</p> <p>The general rule, as to the competency of witnesses, is, that every person not interested in the event of the suit, nor incapacitated by his religious tenets, nor by the conviction >f an infamous crime, is a competent witness. All other circumstances affect his credit only.</p> <p>The maker, or other person, whose name appears upon a promissory note, is, within this rule, a competent witness, to show that it was void in its creation for usury, or other cause.</p>

In assumpsit, the facts were thus: The plaintiff was the owner, and held bills of the defendants, to $1200, which, on the 1st June, 1820, he presented to the defendants’ cashier within banking hours, and demanded payment in specie, which the cashier refused. This suit was for the principal, damages, and interest.

Indebitatus assumpsit, for land bargained and sold by the plaintiff to the defendant. The declaration also con-the usual counts for goods, work, money, and on an insimul computassent.

On demurrer to the defendant’s pleas. The action was case, for overflowing the plaintiff’s land, in consequence of the defendant’s erecting a mill dam across the Otselic Creek or River, at Wi^eh in the county of Cortland.

Ejectment, for lands assigned to the lessor of the plaintiff as dower, pursuant to the statute, (1 R. L. 60, 1, 2,) on her petition to the surrogate of Otsego county, tried at the Otsego Circuit, September, 1824, before Nelson, C. Judge, At the trial, the intermarriage of the lessor of the plain tiff with Samuel Tyler, and his death, about three years before, the trial, being proved by the plaintiff, his counsel then gave in evidence the proceedings before the surrogate; by…

Covenant on indentures of apprenticeship, tried June 16, 1824, at the Ontario Circuit, before Throop, C. Judge.

<p>The admissibility of evidence, if not objected to at the trial cannot be questioned on a motion for a now trial.</p> <p>One in possession, claiming either as heir, or tenant of a mortgagor has not such an adverse possession as will avoid a deed to the mortgagee, or his assignee, upon a foreclosure.</p> <p>In ejectment by the mortgagee, or his assignee,, or a purchaser under a mortgage, expressly conditioned for tho payment of money, evidence that tho mortgage ivas given to indemnify the mortgagee as special bail for the mortgagor, and that no damage had followed his being bail, is inadmissible.</p> <p>So are the admissions of the mortgagee that the mortgage was not a lien, unless it appear that a subsequent mortgagee was misled by the admission</p>

Debt against the defendant, for the escape of one Frederick Lasher, from the jail limits of Onondaga county, where he was confined on a ca. sa. at the suit of the plaintiffs ; ^ied July 11th. 1823, at the Onondaga Circuit, before Ro-CHESTER, C. Judge.

Trespass, assault and battery, tried before Williams, C. Judge, at the Oneida Circuit, on the 24th day of July, 1823, The declaration contained two counts. 'The first charged, that the defendant, on the 24th of May, 1822, with force ’ , , . ’ and arms, &c. made an assamt upon the plamtin, to wit, at Yernon, &c. and then and there, with his hands, fists and feet, and with clubs, stones, whips and sticks, and with the wheels of carriages, gave and struck, the plaintiff a great…

<p>A note paysylvada “’or New York pa-to be current Pemisyivaniaf or the state of New York, is not a promisthe" payment of _ money statute, (I ^ L. 151.)</p>

In a writ of right; the count began thus : “ Richard M. Malcom, 5 messuages, After a special imparlance.(a) the defendant pleaded in abatement to the writ, that neither the brothers and sisters surviving, nor William M. were named in the writ, nor SUed together with the demandant, . . General demurrer and jomder.(b)

GifVi'RAL indebitatus assumpsit, for work, &c. money, &c. ami on an account stated, tried at the Seneca Circuit, 3 Septenrber 22d, 1S23; before Throop, 0. Judge. On the trial the plaintiff proved that his agent called on tlie defendant concerning certain land sold and conveyed by the defendant to the plaintiff, and for which the consideration money had been paid by the plaintiff. An action 1 1 J . . of ejectment had been brought against the plaintiff for this land.

On demurrer to the replication. The pleadings were . , 1 thus: declaration on a bond, made at the town of Constable, in the county of Franklin.

Ejectment for part of lot No. 93, in the township of Junius, tried at the Seneca circuit, March 6 th, 1824, before Throop, C. Judge. On the trial, the plaintiff proved by H. W. Dobbin, that he, the witness, was in possession of the premises in question from 1805 to 1808, claiming possession of the whole of lot 93. He then gave in evidence a conveyance in fee, by deed poll, of lot 93, from Dobbin to the lessors of the plaintiff, for the consideration of $50.

<p>Ejectment, for part of lot No. 79, in the township of Virgil, and county of Cortland, tried at the circuit in that county, September 22d, 1832, before Rochester, C. Judge.</p> <p>On the trial, the plaintiff gave in evidence a mortgage from one Hopkins to Barclay, one of the lessors of the plaintiff, of the premises in question, dated July 20th, 1815; which was proved and registered on the same day. This mortgage was conditioned for the payment of 450 bushels of rye, and 4 barrels of pork, according to the condition of a bond hearing the same date. He then gave in evidence an assignment, endorsed upon the bond, from Barclay to one Rice dated the 28th of August, 1815, reciting that Rice had become bail to the sheriff for Barclay, at the suit of one Johnson, and stating that in consideration of Rice’s undertaking as bail, he did thereby assign, &c. all his right, &c. in the bond to Rice, upon the condition, that if he should pay Johnson’s demand with costs, so as to indemnify Rice, then the assignment to be void; otherwise to be of force, so far as to indemnify Rice.</p> <p>It was admitted that Rice gave Hopkins notice of this assignment, within three days after it was executed.</p> <p>The plaintiff then offered in evidence an assignment endorsed on the bond from Rice to Bayard, one of the lessors of the plaintiff, dated the 12th February, 1817; and declaring that in consideration of Bayard’s indemnity to Rice, against his obligation as bail, he did thereby assign, foe. his right, &c. in the bond, to Bayard. The introduction of this assignment, as evidence, was objected to, but it was admitted; and the plaintiff then proved an assignment of both mortgage and bond from Barclay to Bayard, dated May 23d, 1817, duly proved, and registered by the clerk of Cortland county, June 28th, 1817.</p> <p>The defendant then gave in evidence a written power of attorney dated November 8th, 1815 ; by which Barclay appointed one Cole his attorney, to ask, demand, sue for and recover all that was due or owing to him from Hopkins, and Parnham, Shevalier, Coburn and Abby; and to receive all sum or sums of money, due to him from Shevalier, Coburn and Abby; and to release and discharge the same; and to do all things, touching the premises, as himself could do, were he personally present at the doing of the same.</p> <p>The defendant then offered in evidence a receipt given by Cole to Hopkins, dated October 28th, 1816, of 450 bushels of rye and 4 barrels of pork ; and expressed to be the sum in full to satisfy the mortgage.</p> <p>The plaintiff objected to this receipt as evidence, on the ground that the assignment to Rice, and notice to Hopkins operated as a revocation of Cole’s authority; and that the payment was not in good faith ; and the Court sustained the objection.</p> <p>The defendant then gave in evidence a regular discharge of the mortgage, dated April 10th, 1817, signed and sealed by Cole in Barclay’s name, attested by two witnesses, ac- - knowledged and registered in the Cortland clerk’s office sufficient in form to discharge the mortgage according tc the statute, &c.</p> <p>It was admitted that the defendant was in possession as the tenant of one Messenger; and a deed in fee, of the premises in question, from Hopkins to Messenger, dated December 10th, 1818, duly proved and recorded, was given in evidence.</p> <p>It was also admitted, that, at the time of the several as signments, the mortgage was in possession of Cole, and was by him delivered to Hopkins, when the discharge was executed ; and by the latter delivered to Messenger, when he received his deed.</p> <p>Verdict for the plaintiff, subject to the opinion of the Sm preme Court.</p>

Ejectment for part of lot No. 94, in the town of Trnxton, (late Fabius) in the county of Cortland, tried at the 7 x * J 7 Cortland circuit, the 29th and 30tli of June, 1824. before Walworth, C. Judge. A verdict was found for the defendant; and a motion was now made for a new trial, on grounds which are sufficiently stated in the opinion of the Court.

Debt to recover the penalty giveh by the 14th section of the act concerning distresses, rents, and the renewal of leases, (1 R. L. 437, 8,) for wilfully and knowingly aiding, or assisting the tenant, in the fraudulent conveying and carrying away goods and chattels, and in keeping and detaining them, off and from certain premises, demised by the plaintiff to one Ambrose. The cause was tried at the Monroe circuit, September 27th, 1824, before Rochester, C. Judge.

Assumpsit, tried at the Delaware circuit; September 2d, 1823, before Nelson, C. Judge.

Ejectment, for part of farm No 14, and a part of Del-aware river adjoining it, in lot No. 41, in the Hardenburgh Pateut) fried at the Delaware circuit, June 7, 1824, before WALWORTH, C. Judge. On the trial, the plaintiff deduced a title by a lease in dated January 1, 1793, from one Desbroses to Ingersol, who assigned the lease to Levi Palmer, November 4th, 1801.

Ejectment for land in Brooklyn, Kings county, tried at the circuit in that county, May 30th, 1822, before Wood-WORTH, J. The lessors of the plaintiff, Elizabeth, wife of T. Hunt, an¿ garah Colwell, are the grand daughters of Aert Middagh, by Margaretta, one of his daughters, and claimed under the will of their grandfather Middagh, dated January 7th, 1777, by which he devised certain land, including the premises in question, to his “ two daughters, Margaretta and Magdalena,…

<p>On demurrer to the rejoinder. The declaration was in debt on a judgment of this court in January term, 1820, for $103 930.</p> <p>Plea, that on the 18th of September, 1820, the plaintiff by an instrument in writing, sealed, and set forth by the plea, in hcec-verba, acknowledged to have been fully satisfied for all claims or demands he had against the defendant, by virtue of the judgment, and consented on his, (the plaintiff’s) part, that the sheriff should discharge the defendant from imprisonment.</p> <p>Replication, as to parcel of the judgment, viz. as to $189 84, and $353 50—$543 34; that after the judgment was recovered, and before this suit was commenced, viz. on the 1st day of February, 1820, the plaintiff assigned the $189 84 to Samuel Lush, whereof the defendant, on the same day, had notice; and that Lush, on the 6th Febru ary, 1820, before this suit was commenced, assigned that portion of the judgment to Jonathan Roberts ; and further, that on the 1st day of February, 1820, and before this suit was commenced, the plaintiff assigned to Elias Kane, $353 50, other parcel of the judgment, whereof the defendant, on the same day had notice ; and that Kane, before this suit was commenced, viz. on the 7th day of February, 1822, assigned the $353 50 to Jonathan Roberts ; and the whole $543 34, part of the judgment, being thus vested in Roberts, that he (Roberts,) before this suit was commenced, to wit, on the 25th day of August, 1822, assigned the $54334, to Jonathan E. Robinson: And that this suit ivas commenced, and is prosecuted for his benefit. Nr notice to the defendant of the assignment to Roberts oi Robinson Avas averred; and as to the residue, not assigned, the plaintiff entered a nolle prosequi.</p> <p>Rejoinder, that Jonathan Roberts, before the exhibiting of the bill of the plaintiff in this behalf, to wit, on the 7th day of February, 1822, Avas indebted to the defendant in $3000, for the Avork, <fcc. for goods, &c. and for money, &c. (to the usual effect of a general notice of set off,) and that the defendant Aims Avilling to set off so much of the debt due to him, as should amount to the sum claimed hv he plaintiff, in behalf of the assignee.</p> <p>General demurrer and joinder.</p>

<p>Ejectment for land in Halfmoon, in the county of Saratoga, tried at the circuit in that county, June 9th, 1824, , ° ' T ™ T , hefore Nelson, G. Judge.</p> <p>On the trial, it appeared that the defendant, and those under whom he claimed, had possessed the land for 30 or 40 years, but no adverse possession was made out; and the main question was, whether certain testimony, which will be found stated at large in the opinion of the court, was admissible to establish the pedigree of the lessors of the plaintiff. Certain parts of the evidence were objected to as inadmissible, by the defendant’s counsel. They were, however, received by the Judge; but on hearing the whole of the testimony which the plaintiff produced, he directed a nonsuit, on the ground that William Appel, from whom the plaintiff claimed to derive title, was not sufficiently identified with the one of the same name in the patent under which they claimed. The case at bar, therefore, involved the two questions, whether the testimony was competent to show pedigree ; and also whether there was sufficient to go to the Jury upon the identity of the patentee.</p> <p>The whole is so fully stated by the court, that it need not be farther noticed here.</p>

<p>On error from the Albany Common Pleas. The action was trover, originally brought by the defendant against the plaintiffs in Error, for the sloop or boat William, in a Jus- * ' 1 tice’s court of the county of Albany. A verdict being for the plaintiff in that court, the defendants there brought and prosecuted an appeal to the Albany Common Pleas, pursuant to the former act, (sess. 41, ch. 94, s. 17, 18, 19,) anc the cause coming on to be tried there, Orin Fuller, was of fered as a witness on the part of Patterson, the appellee. The appellants objected to his introduction, on the ground that he was interested in the event of the suit; and proposed to establish his interest by the testimony of John 0. Cole, who was not sworn before the Justice’s Court. His introduction as a witness being objected to, on this ground, he Avas excluded by the C. P. who gave as an additional reason that it did not appear by the Justice’s return. That Fuller Avas objected to as being interested in the Justice’s Court. The counsel of the appellants excepted to this decision.</p> <p>Fuller being SAvorn, stated that he purchased the boat as agent for the appellee ; and swore to various facts tending to shoAV that it belonged to him; as that he bought it Avith the appellee’s property, being in trade on commission for the appellee, Avith a sign importing a commission store. Among other things, hoAvever, he acknoxvledged in a course of cross-examination, that he Avas a Avitness in a cause betAveen other parties, in which the property of the same boat was in question; on which occasion he swore that the boat Avas his OAvn property, and. afterwards told the same story to Meigs; xvhen, in truth, at each time, he knexv (as he said) it belonged to the appellee. This' Avitness Avas supported as to a fexxr collateral facts by the testimony of Valentine W. Rathbone; but not upon the main question, as to Avhom the boat belonged.</p> <p>The additional facts necessary to an understanding of the points decided both here and in the court below, Avill he found stated in the opinion of tire court.</p> <p>The C. P. denied a motion to nonsuit the appellee; and charged the jury .that Fuller Avas a competent Avitness, Avhose testimony should go to the jury, Avho might giArc that weight to it Avhich they thought it deserved; that his testimony axuls in some measure supported by that of Valentine W. Rathbone, and therefore entitled to that additional Aveight; and that if the jury believed the testimony of Orin Fuller, that is, that he was actually trading upon commission under the said plaintiff, and was trading with the funds of the said plaiitiff, and that the boat in question was purchased by the sai d Orin Fuller, for the said plaintiff, and with the money or goods of the said plaintiff, then they ought to find a verdict for the said plaintiff, for the value of the said boat, but if they believed, from the testimony before them, that the said Orin Fuller was not trading upon commission under the said plaintiff, nor with his funds, but was trading with his own funds, and had bought the said boat with his own money or goods; and had put up his sign, and held out to the world that he was trading as a commission merchant, merely to defraud his creditors, they ought to find a verdict for the defendant.”</p> <p>• To this charge the appellants’ counsel excepted; and the jury found for the appellee, $50 damages; and the appellants brought error to this court.</p>

Ejectment for land in Hebron, Washington county, bried at the circuit in that county, July 14th, 1823, before WALWORTH, 0. Judge. premises in question had formerly belonged to one Quackenbush; and on the 14tli of April, 1821, they were so^ 011 aagainst Q,uackenbush, upon ajudgmentdocketed in 1806, to Law, the defendant. The lessor of the plaintiff redeemed upon junior judgments against duackenbush; and took a sheriffs deed of conveyance, July 13th, 1822.

Assumpsit, for meat, drink, &c., found and provided, and work and labor, in and about the nursing &c., of Catharine m • , . . ..y,. _ . _ _ _ Trovinger, the plaintin 7s daughter, and James M/Burney, and Susan M’Burney, infant children of Catharine, at the defendant’s request, and on his promise to pay, &c. tried at the Steuben circuit, October 1st, 1823, before Nelson, C. Judge: when a verdict was found for the plaintiff. ’ r „ „ . , . , . . „ The facts are sufficiently…

The defendant was indicted for maliciously, wickedly and wilfully killing a cow, the goods and chattels of J°hn Dibble; and found guilty at the general sessions in Delaware county. The cause was brought to this court .... ... by certiorari, with a view to obtain their opinion, whether t^le 03®®nce charged be indictable,

Trespass for mesne profits ; tried at the Schoharie circuit, Oct. 26th, 1824, before Duer, C. Judge. On the trial, the plaintiffs produced the exemplification of a record of a judgment of nonsuit, for not confessing lease, entry and ouster, in an action of ejectment, for land in Bienhelm, Schoharie county, in which they were named as lessors, against the defendant.

<p>After the seunder thAabscondmg debt-L. i57,) no creditor can be received to prove his debt.</p> <p>credito^to6 a dividend, he been such at the time of the lirst publication of the pro(ier^the ™ct, pursuant to the second</p>

In trover for a pair of horses. The declaration contained three counts. The first, alleged the trover and conversion in the testator’s life time; the second alleged the trover in the plaintiff’s life time, and the conversion after his death; and the third, both trover and conversion after his death.

On motion for a reference, in behalf of the defendant, it appeared that the cause, being at issue, had been noticed for trial by the plaintiff’s attorney, for the 29th of November last; but on the 26th, the defendant’s attorney served him with an order to stay proceedings, made with a view to this motion. The court agreed that the motion must be granted; but one question was, if it should not be on payment of the costs of the plaintiff, in preparing for trial.

Ejectment, tried before Throop, C. Judge, Decemoer 13th, 1824, at the Oswego circuit. The lessor of the plaintiff claimed title to the premises in question, as the assignee of the purchaser, at a sheriff’s sale of those premises; and gave in evidence, the sheriff’s deed, reciting the sale in December, 1822, at public vendue, to J. H. ; and a sealed assignment of his right to receive a deed, to the lessor of the plaintiff.

Qn demurrer to the declaration. This was in covenant on articles of agreement under seal, dated March 21st, 1820, between the defendant. and the testator; whereby the defendant covenanted to pay the testator $416, with interest, &c. in four equal annual payments, the first instalment to be pgj¿ on or before the first day of January, 1825, &c. as the consideration of a lot of land.

Smith was committed on this warrant: “ Police Office, city of Albany. The gaoler will receive, and safely keep for farther examination, George W. Smith, who is charge1 having been engaged in, or accessory to a robbery of the United States mail. March 14, 1826. J. O. Cole, Jastice of the peace.” The warrant was not sealed. March 16th. The prisoneivbeing brought up by habeas corpus. J. V. N. Yates moved, that he be discharged.

Smith having been committed to gaol in Columbia, for not performing an order of filiation and maintenance, for a weekly sum of money made pursuant to 1 R. L. 306, sect. 1; and being afterwards discharged under the act to abolish imprisonment for debt, <fcc. (sess. 42, ch. 101;) and the sheriff refusing to set him at liberty, on the production of, the discharge,

The defendant having been surrendered, in discharge of his bail, to the sheriff of New York, on the 29th of October ; on the 7th March, the Recorder of New-York made an order upon the plaintiff, to show cause on the 11th, why a supersedeas should not issue upon the statute, (1 R. L. 353, s. 12.) On showing cause it appeared that a ca. sa. had been delivered to the sheriff, on the 4th of March, returnable that day; but the defendant was not actually arrested upon it; and the…

E. Griffin, for the defendant, moved for judgment of non pros, for not delivering a bill of particulars pursuant to an order. The declaration contained one special count with the general counts; and the order was founded upon, ■ and related to the latter. After this motion was noticed the plaintiff furnished a bill, but did not pay the costs. J. Steele opposed the application, insisting that the plaintiff could not he non prossed as to a part of the counts.

In partition, the notice of presenting the petition and moving for the appointment of commissioners, was October term last, at the City-Hall of the city of New-York, v instead of the Capitol in the city of Albany. A rule having been taken upon that notice,

I. Seelye moved to consolidate these causes, on an affidavit of the partner of the attorney for the tenants, that he was well acquainted with the titles of hoth parties, &c. that he was informed and believed, and had good reason to believe, that the lessors had caused these action#to be brought on the same grounds, and the same title which they set up in Jackson ex dem.

This cause having been submitted to the jury at the last Otsego circuit, they retired under the sworn charge of the constable. It being late in the evening when they retired, they had liberty from the court (by consent of parties,) to seal their verdict and disperse, rendering it the next morning.

At their last August term, the general sessions of Wash-ington county made an order on Hunt, (among others) pur suant to the statute, (1 R. L. 286, sect. 21,) to maintain W. g. and E. his wife, paupers, on the ground that Hunt’s fa-ther married the daughter of the paupers; and that Hunt was the son of that marriage, ° D. Russell, moved for a mandamus, commanding the ses sions to vacate their order.

P. of St. , . . J ° .. , „ Lawrence, the justice's return stated a judgment before him jn cause 0f Weed v. White, of $4 25 for the defen7 ^ dant; but the repeal bond recited a judgment in a cause between the same parties, of $5 00 for the defendant. The trial coming on, the common pleas refused, for the above reason (and another which it is not material to notice) to proceed in the trial, and quashed the appeal.

In debt for an escape, the plaintiff was nonsuited at the circuit, (March, 1824) and a case was made with a view to set the nonsuit aside, which was now on the calendar. After May term last, the plaintiff died ; and C. H. Ruggles, now moved for a rule that the cause should be stricken off, and that the defendant have judgment for costs.

The Court of Common Pleas of Onondaga made a rule quashing an appeal; because the penalty of the appeal bond was only double the amount of the damages recovered before the justice ; but not in double the damages and costs. J R. Lawrence moved for a mandamus commanding them to vacate the rule; and proceed in the appeal.

A road being laid out through the improved land of the relator, his damages were appraised by commissioners according to the 16th section of the act to regulate highways. (2 R. L. 275,) at $750.

Caldwell fled irom his creditors in Paisley, Scotland, to the city of New-York. Being pursued hither by Crawford, one of his Scotch creditors, he concealed himself: and an attachment was taken out against him under the act for relief against absconding and absent debtors. (1 ft. L. 157.)

<p>ta^hSofdVfurnishing the court with an abstract of the facts on a non •enumerated motion, where the papers are prolix ; and the facts numerous and complicated.</p>

<p>Tho issuing of an execution before the 10 years after docketing a judgment have expired, and a sale under it after the ten years, will not extend tho lien of tho judgment as against subsequent judgment creditors, &c.</p>

In partition, under the act for the partition of lands, passed April 12th, 1813, (1 R. L. 507.) The proceeding was for partition of a farm in Schodack, Rensselaer county, of which the plaintiffs claimed to be seised in fee as tenants in common, each of one ninth part. The petition was presented to this Court August 9th, 1823; and was served on the v defendant about 3 months before.

Ejectment for doxver admeasured and set off to the lessor of the plaintiff pursuant to the statute, &c., (1R L. 60,) by the Court of Common Pleas of the county of Columbia; tried at the circuit in that comity in 1824, before Duer, C. J 1 } Judge. ■ The plaintiff, after giving in evidence, the proceedings of the Court of Common Pleas, admeasurers, &c., by which dower was set off to her, as the widow of Frederick Sitzer, of a farm situated in Ghent, Columbia county, in the…

Assumpsit, oil an inland bill of exchange, by the plaintiffs, as endorsees, against the defendant, as drawer, tried at the New York circuit, January 18th, 1825, before Edwards C. Judge. The hill was dated at New York, June 17th, 1823, and drawn on one Bourne, Bristol, Rhode Island, for $400, at four months, by the defendant, payable to his own order ; and by him endorsed to the plaintiffs. It was duly accepted and left at the Freeman’s Bank, Bristol, for collection.

On error from the Dutchess Common Pleas. The action in the court below was case by Fancher and Dean, overseers of Patterson against Grant and Hurd, late overseers of Paw- . lings.

Ejectment for 450 acres of lot No. 77, Tully, (nowPre^e) Cortland county, tried at the Cortland circuit, Septemher, 1824, before Rochester, C. Judge. At the trial, the Attorney General produced a patent to one John Tool, for 500 acres in lot 77, in Tully, dated 13th September, 1790, which passed the secretary’s office, A.U§ust 29th, 1791.

Trover, for certain copper stills, or kettles, steam tubs, coolers, and a worm, tried at the Montgomery circuit, July 23d, 1823, before Walworth, C. Judge. On the trial, these facts were proved: One Gilman, a distiller, had mortgaged the articles in question to the plaintiff to secure a sum of money; and default having been made in the payment, the plaintiff caused them to be removed into his possession.

Case agreed and submitted. During the years 1815, 1816 and 1817, the county of New-York became indebted to the people of the state, in the amount of $>165,466 75 for balances of state taxes, which were laid upon the county, during those years. These balances the county treasurer neglected to pay.

On demurrer to the defendant’s avowries. The action was replevin for two bay mares and a colt, commenced by . v 1 J plamt m the Common Pleas of Washington county ; and removed into this court by certiorari.

Ejectment for a lot of land in the Halfmoon patent, in the county of Saratoga, tried at the circuit in that county, December 29th, 1823, before Walworth, C. Judge, At the trial, the plaintiff deduced a regular title under the Halfmoon patent, to Andreas Ten Eyck, who received a conveyance of the premises in question, September 25th, 1767, and died in October, 1802 ; having devised them to lessors of the plaintiff. The patent of Halfmoon was proved.

Slander. The declaration alleged a contract of marriage between the plaintiff and Parkman Baker ; and that the defendant, to prSvbntfthe intended marriage, in a conversation with Parkman Baker, declared that he had had carnal intercourse with the plaintiff; by reason whereof Parkman Baker refused to marry her. The cause was tried at the Cayuga circuit, 1824, before Ti-iroop, C. Judge.

On certiorari to the general sessions of Albany. Two justices made an order, October 19th, 1822, removing Patience York, a free woman of color, and her children, from Knox to Guilderland, (Albany county,) on which the paupers were delivered, October 21,1822. Guilderland, on the 14th of December, 1821, gave notice of an appeal to the sessions, at their next term commencing the 2d Tuesday of March, 1823.

On demurrer to the defendant’s plea. ■ The action was assumpsit for goods sold to, and work and labor, care and diligence done, performed, and bestowed by the plaintiff, and his servants,-horses and carnages, in and about the busjIiesg 0f the defendant’s testatrix, in her life time, Sec. with 1 the money counts, The defendant pleaded several pleas; .the third of which was, that the plaintiff, in the life time of the defendant’s testatrix; to wit, August 6th, 1806, made a…

These actions were ejectment, for land, in the eighth ward of the city of New York; tried at the New York circuit, March 25th, 1825, before Betts, C. Judge. Verdicts were taken for the plaintiff, upon the third count of the declaration in each cause; which was on the demise of Rachael Arden only.

Assumpsit, tried at the Rensselaer circuit, November, 1824, before Duer, 0. Judge. Verdict for the plaintiff, subject to the opinion of the Court, on a case, which is fully stated in their opinion.

On demurrer to the plaintiff’s replication. The declaration was in debt on bond; to which the defendant pleaded, that the bond was executed concurrently with, and as collateral security to a mortgage; that the mortgage was foreclosed in chancery; and the mortgaged premises sold, whereby the debt, was satisfied and the plaintiff replied that the premises did not sell for sufficient to satisfy the bond and mortgage ; and showed that more than $4000 were unpaid by the sale or…

Ejectment, for land in Willsborough, Essex county; tried at the circuit in that county, June 30th, 1824, before Nelson, C. Judge. On the trial, it was admitted that one James Ross conveyed certain lands granted to him by a patent, including the premises in question, to John Goodrich and William Wilson, who made partition ; Goodrich taking the west, and Wilson the east half, which east half contained the premises in question.

Dower, of land in Argyle, Washington county; tried at the Washington, circuit, January 5th, 1824, before Walworth, C. Judge. At the trial, the demandant deduced a title to her husband, Archibald Gillis, in his life time, by a sheriff’s sale and conveyance in fee, to him, under executions on judgments docketed December 20th, 1816, against Brown, the tenant; and rested.

On error from the Washington C. P. Gibbs sued Bussell in a justice’s court, for the price of a mare sold and delivered by Gibbs, as sheriff of Washington comity, on an execution, to Bussell, who bid off and received the mare.

Ejectment, to recover possession of 50 acres of land, being a part of lot number 26, in the township of Locke, as escheated land.

Assumpsit, for non-delivery of hops, tried at the Rensseiaer circuib November 17th, 1824, before Duek, C. Judge. ^ l*16 trial, it appeared that the defendant, by a note in writing, dated August 22d, 1823, contracted to deliver to ^Ie plaintiíf> at his brewery, between the 1st day of October and the 1st day of December, 1823, 80001bs. of hops ; the plaintiff having the liberty of extending the quantity to HXOOOlbs.; in such case reasonable notice to be given; and . , the…

On demurrer to one of the plaintiff’s pleas to the defendant’s avowry. The action was replevin for certain household furniture, alleged to have been taken May 29th, 1823.

<p>Trespass, for mesne profits. Verdict for the plaintiff. The case is sufficiently stated in the opinion of the court,</p>

Judgment being for the plaintiff, on the last day of last February term, the defendant’s attorney sued out a writ of error; the defendant entered into the usual recognizance, with two sureties, conditioned to prosecute the writ of error, Ac. before Throop, 0. Judge. On the 4th of April last, the defendant’s attorney served this notice on the plaintiff’s attorney; “ Elijah Baker ads. Parnell Moody, Ac.

At the trial of this cause, the plaintiffs took a bill of exceptions on certain points of law; and afterwards made a case embracing the same points ; and also bringing up the question as to the weight of evidence. And now, D. Lord, junior, moved that the defendant should elect which he would abide by; and that if he should elect the one, the other should be set aside.

Dennison sued W. & 0. Babcock in trespass for two cows in a justice’s court in the county of Madison ; and the jnstice gave judgment for the defendants. Dennison appealed to the C. P. of Madison ; and on the trial of the appeal, one of the appellees justified the taking as constable, un¿er an execution.

The judgment being for the plaintiff, on confession upon bond and warrant of attorney, he issued a fi. fa. to the sheriff of Onondaga, returnable in February term last; which was levied on certain property of Willets. After the return day, but before the return of this fi. fa. the plaintiff discovered other property of Willets, not levied upon.

Ejectment. On the 16th of December, 1825, the tenant having neglected to appear and enter into the consent rule, t^ie pla-iJitifF’s attorney, on the usual affidavit of service, entered a rule in the common rule book, that the tenant apPear an5 enter into the consent rule in twenty days, or jU(^oment against the casual ejector by default. This rule not being complied with, on the 24th of January, 1826, he enfore On papers disclosing the above facts,

The cashier of the Plaintiffs had been required by a subpoena duces tecum, sued out by the defendant, to produce on the trial of this cause, certain books, &c. of the plaintiffs. Not having done so, J. A. Spencer now moved for an attachment against Mm; and cited 5 Coxven, 153 ; 1 Camp. 562; 1 Taunt. 167; 1 Anstr. 259 ; 2 id. 547.

The defendants were special bail for E. O. and D. Board-man at the suit of Wiggins, who obtained judgment; and the ca. sa. was returned non est inventus, as to all the defendants. The bail, defendants in this suit, were then sued ^Y capias a& vcspondendum, returnable the 4th day of March, 1826, the last return day of the term, though the court continued its session to the 25th. 0.

On the 16th April, 1825, D. Y. N. Radcliff, Esq. was appointed by the judges and supervisors of Dutchess, a commissioner to take the proof and acknowledgment of deeds, &c. He took the oath of office, and acted as such till April 17th, 1826, when he was appointed and sworn in as mas-' ter in chancery. After this, he took the acknowledgment of a deed as commissioner, but the clerk of Dutchess refused to record it, on the ground that he had no power to take the acknowledgment.

Assumpsit. Grim moved for judgment as in case of non-suit on an affidavit that this cause was noticed for trial, by The the plaintiff for the last Orange circuit, but not tried, not gtate where the venue was laid; and Ross objected this as a defect, and cited 3 Caines, 128, 3 John. 446. But

<p>The excuse for not noticing a motion for the 1st day of ¡^¡vé’n’hi affidavits served.</p> <p>To warrant denying a ref-ground °“ that questions of law will anse, tho court must be satisfied ¡tcf1 Cuestiona of real difficu1t>‘</p>

In debt on bond, conditioned for the maintenance of a J>astard child, in the penalty of $400, the plaintiffs assigned breaches according to the statute, (1 R L. 518.) The defendants, (one of whom was a surety,) pleaded payment $^64 25, and non damnijicatus beyond that sum. The defendants proving payment according to their plea, the C(yurt hcM that the plaintiffs could recover only $135 75, though they proved damages beyond this, over and above . 7, . . .. what had been paid.

The parties had submitted to arbitration, and agreed that the submission should be made a rule of court. The award being for McKinney and Thompson, it was, early m this term on motion, made a rule of court, and performance demanded ; and now two motions were made ; one for an attachment against Newcomb for not performing the award, and another in hehalf of Newcomb to set aside the award, on the ground that the arbitrators had rejected a material witness, offered by Newcomb.

J. W. Mulligan moved for a rule to establish the election of Zebedee Ring, and 24 others, who, as he claimed, ha¿ been chosen directors of the Tradesmen’s Insurance . . _ Company in the city oí JNew… Held: and directors appointed; when it was resolved by the directors, that the 1582 shares, held by the three trustees, should be voted upon at the (then) next election, by Z. Ring, chairman of the trust committee. That the whole number of the company’s shares is 4000.

By the defendant’s return to an alternative mandamus, requiring them to show cause why they should not raise certain moneys in arrear on a mortgage executed by John Moore, for $750, to the new loan officers of Ulster county, May 5th, 1795, on lands then in Ulster, but now in that part of Delaware county which was taken from Ulster, it appeared that the principal, and one year’s interest, being due in May, 1823; and default being made in the payment of that interest, the…

The last February term judgment was given for the plaintiff upon a hill of exceptions taken by the defendant. -phe plaintiff was proceeding to sell the goods of the testator, on the 6th of May, when an order of the recorder of New York, dated May 5th, was served on the sheriff, reciting that the defendant had lately died, that administration had not been granted though application had been made therefor, and directing that proceedings he staved upon the ' or c . j.…

The Judgment was perfected against the defendants, as heirs and devisees, in February term last. John Phillips was an adult; the other defendants were, and still are infants. The plaintiff’s attorney issued executions against all the defendants within the year; contrary to the statute (sess. 36, ch. 93, s. 6, 1R. L. 318.) On the 27th of April (Thursday) the defendants gave notice of a motion to set aside the executions.

On the 31st of December last, the defendants executed their bond and warrant of confession to the plaintiff, in the penalty of $25,000 ; conditioned (among other things) to pay all notes theretofore endorsed, or thereafter to be endorsed by the plaintiff for the defendants, or either of them: y • i . ' _ and to indemnity the plaintiff against all costs. &c., by reason of, or on account of such votes. 4 On this bond, the plaintiff caused a judgment to be entered, and two…

The plaintiff had, by writ of error, removed this cause from the supreme court, into the court for the trial of impeachments and the correction of errors, where the judgment xvas affirmed; and the defendant’s costs were taxed by Savage, Ch. Justice. A motion xvas noxv made to this court for a relaxation, on affidavits entitled “ In the court for the trial of impeachments and the correction of errors.”

Motion to set aside an inquest taken in this cause, at the Ontario circuit, in 1818, with the execution. The cause was regularly noticed for trial at that circuit, hy serving the notice on the defendant’s attorney, who resided at Buffalo.

<p>On a motion to be received to defend as landlord in ¡¡T^rompetent *e Pethat, the land{^leafe, conveyed _ away ¡n the premis08111 Station.</p>

<p>Ejectment for part of lot No. 69, Bedlington patent; at Delaware circuit, September, 1823, before Nelson, 0. Judge.</p> <p>The action was upon the 23d section of the statute concemin» distresses, rents and the renewal of leases, (1 R. ° y x L. 440-1.)</p> <p>Oil the trial, it was proved that John Lake, by indenture 0f lease, dated May 31st, 1792, granted and demised in fee simple, certain land of which the premises m question are a part to William Cornell and others, at the annual rent ol $118 75 payable on the 30th day of May. The lease contained the usual clause authorizing the lessor to distrain; and if no sufficient distress could be found, to re-enter. Lake, having devised all his interest in lot 69 to the lessor of the plaintiff, and there afterwards being in arrear $1825 09 of rent, he, by his bailiff, on the 19th September, 1821, distrained for that sum, all the goods and chattels to be found on the lot, the value of which distress was less than $1000. Thus, not being able to find a sufficient distress, the bailiff afterwards, on the same day, served the declaration in this cause on the defendant, who was one of the tenants in possession, claiming under the lease.</p> <p>The plaintiff resting here, the defendant’s counsel moved for a nonsuit, on the ground that the distress was a waiver of the forfeiture for non-payment; that the plaintiff could not both distrain and bring ejectment for the same rent. It being admitted that there was no forfeiture for non-payment subsequent to the distress, the judge non-suited the plaintiff.</p> <p>A motion being made, for the plaintiff, to set aside the non-suit ; the single point was, whether distraining for the rent waives the right to maintain ejectment under the statute.</p> <p>This cause was twice argued; first at August term last, and afterwards, by direction of the court, in February term last.</p>

Ejectment for the east half of lot 22, in Beekmantown, Clinton county, tried at the circuit in that county, January 21st, 1825, before Walworth, C. Judge. The lessors of the plaintiff claimed under a patent, including the premises in question, from the people to Zephaniah Piatt, dated, and which passed the secretary’s office, February 28th, 1787.

This cause came from a justice’s court of the county of Monroe.

<p>A plea, in trespass quare clauswmfregit that a third person was seised in fee, and demised to tho defendant for years, without giving express colour amounts to the general issue; and is bad on special demurrer.</p>

<p>Debt on bond in the penalty of $54,832. The pleadings were conducted between the parties to a rebutter, to which the plaintiffs demurred generally, and the defendant, A. G. Lansing, joined in demurrer. For the purpose of the legal qUestions decided by the court, the pleadings and points are stated in their opinion.</p>

Assumpsit tried at the New York circuit, March 26th, 1825, before Betts, 0.

<p>Action for breach of marriage promise. Plea infancy. General demurrer and joinder.</p>

Debt against the defendants, as heirs of S. Parsons, jun- deceased, tried September 21, 1824, before Duer, C. Judge. The first was on The declaration contained two counts, a promissory note made by S. Parsons, jun. to Legget, tinted the 9th April, 1819, for $200, payable to Leggett or or-¿er on the pst December, 1820.

Assumpsit for the work and labor of the plaintiff, by his slave. Plea, the general issue, and notice of setting off necessary articles furnished the plaintiff’s slave, while at work with the -defendant. The cause was tried at the Montgomery circuit, in May, 1824, before Nelson, C. Judge.

Ejectment, tried at the Ulster circuit, October 14th, 1823, before Betts, C. Judge. ' It appeared that Benjamin Krom, the father of the lessor of the… Held: that the entry and possession of Mrs. Krom, after her husband’s death, being in common with the infant co-heirs of the lessor, was not hostile in its inception; and could not become so, as to the plaintiff, by her purchase at sheriff’s sale ; and the jury found for the plaintiff, under his direction to that effect.

Ejectment for lot No. 61 and 62, and the north half of lot No. 63, in the village of Rochester, in the county of Monroe, tried at the Monroe circuit, April 16th, 1825 before ' A ' Walworth, C. Judge ; when a verdict was taken for the plaintiff, subject to the opinion of this court upon a case ; which is sufficiently stated in the opinion of the court.

Assumpsit, for work, goods, &c. (with the money counts tried at the Delaware circuit, December 23d, 1823, before Nelson, C. Judge ; when it appeared among other things, that thje plaintiff had confessed a judgment in this court, January term, 1816, in favor of the defendant and one Eligh, on a bond conditioned for about $380.

<p>On demurrer to the replication. The declaration was m A indebitatus assumpsit, for goods sold, &c. Plea, a release: which was set forth, on oyer, as follows: “ Jamesville, 20t.Ii September, 1824. In consideration of two hundred ana eighty dollars and thirty-one cents, cash received from sales of ashes in June last, belonging to Matthew Cadwell, (the defendant;) and sf the consignment to me by him of a lot of cherry hoards, supposed to be about thirty-five thousand feet, I do hereby release and discharge the said Matthew Cadwell from all debts and demands due by him to the late firm of N. B. Gram & Stewart, supposed to be about six hundred and fifty dollars; as witness my hand and seal. F. A. Stewart (seal,) one of the late firm of N. B. Gram & Stewart.” The plaintiff replied, that at the time of the dissolution of Gram & Stewart, by certain articles under their hands and seals, dated and executed May 1st, 1824, it was agreed that Gram should have the settlement of the affairs of the firm; that their connexion should be dissolved; that the business of the firm should be settled as soon as practicable to write up the books ; that as N. B. Gram was in business previous to the connexion, he should continue the business and the settlement thereof, assuming all debts and accounts outstanding and due, with which the firm had connexion, until they should be settled ; that all monies put in and applied by F. A. Stewart, should be paid back to him by N. B. Gram, within ten days from that time, excepting what might have been drawn out by him, as should appear from his individual account; of which the defendant, before the execution of the release, had notice.</p> <p>General demurrer and joinder.</p>

<p>qn demurrer to the rejoinder, the case was argued by J o j</p>

Assumpsit on an agreement in writing, dated June 20th, 1820, by which the defendant, for value received, promised to pay the plaintiffs on demand, 448 gallons of whiskey; tried at the Onondaga circuit, July 1823, before Throop, C. Judge.

Slander, tried at the Cayuga circuit, Sep.ember 9th, 1824, before Throop, C. Judge.

<p>The executor of a lessor, who was seised of the demised premises in fee, cannot distrain for rent (though due on a lease for years,) which accrued subsequently to the testator’s death.</p> <p>Such rent goes to the heir or devisee.</p> <p>How the heir or devisee should avow.</p> <p>Where an executor avows for rent as due subsequently to his testator’s death, he can not show, in proof, rent due before.</p> <p>The defendant in replevin must set out strictly truly, in avowry, authority making distress. and his his for the</p> <p>In replevin, where the defendant was defeated at the trial for a technical defect in his avowry, which was as executor, when it should have been as heir or ¿evisee, he was allowed to amend, on payment of all costs</p>

In slander, the plaintiff declared, in the first count, that he was a witness for the prosecution upon a certain trial of an indictment against the defendant, who was acquitted; and that the defendant said of him, “ I should have got clear of . ° the charge without the jury’s going out of the box, if old Gibbs (the plaintiff) had not handed papers to John Wilson, (one of the jurors) to influence the jury; and he run away, or the judge would have shut him in prison, where he…

Covenant, tried at the Chenango circuit, June 22d, 1825, before Nelson, C. Judge; The action was on an agreement dated April 5th, 1824; plaintiff agreed to sell to the defendant a lot of land for $300; and to execute a deed by the 1st day of July (then) next; in consideration whereof, the defendant agreed then to pay $100, and give a bond and mortgage for the balance.

Covenant, tried at the Jefferson circuit, June 21st, 1825, before Williams, C. Judge. The cause came here, on a motion for a new trial upon a bill of exceptions. The verdict was for the plaintiff.

Slander, tried at the Cayuga circuit, on the 9th of September, 1824 before Throop, C. Judge. ' On the trial, the plaintiff abandoned all the parts of his . x declaration, except those m which the defendant was alleged to have charged him with having committed perjury, The words charged in the first count were, “ you are perjured, and I will put you into the state prison in the second, “ he has sworn false, and perjured himself, and I will put him into the state prisonin the…

On certiorari, from the justices’ court of the city of Albany. Lobdell sued Hopkins in the court below, on the following instrument in writing, signed by the defendant: “ Moscow, 29th August, 1817.

Assumpsit against the defendant as endorser of a promissory note to the plaintiffs; tried at the Albany circuit, October 11th, 1823, before Duer, C. Judge. The note was for $500, dated August 29th, 1815, and payable 6 months after date. The declaration also contained the money counts. The plea was non accrevit infra sex annos.

On certiorari from the general sessions of the peace of the county of St. Lawrence. Two justices made an order for the removal of the children of Diana, a black woman, by her husband, Peters, from Oswegatchie to Owasco, in St. Lawrence county. On appeal by the overseers of Owasco, the general sessions affirmed the order.

Ejectment, tried at the Onondaga, circuit, Sept. 1825, to recover the possession of an equal undivided half part of 68 acres of land, m the south east corner of lot No. 74.-in Camillus. ' • The plaintiff proved a deed in for the premises in question, dated September 28th, 1798, from Josiah Buck to John Streeter ; a quit claim deed in fee from Amasa Spalding, junior, and Sarah, his wife, dated 21st January, 1819, of all their right to the premises in question, to Joseph…

On error 'from the C. P. of Columbia. The action below was assumpsit for work and labor by Ackeston against Livingston ; and the verdict and judgment was for the plaintiff, on the facts stated in a bill of exceptions, upon which the writ of error was founded. Those facts were, that Ackeston, a black man, worked for Livingston from the spring of 1819 till. June, 1820, when he sold him to one Benn.

Assumpsit tried at the Cayuga circuit, September 10th 1824, before Throop, C. Judge; when a verdict was taken , . ,, , .. _ . for the plaintiffs subject to the opinion ol the court upon a cage , and with leave to either party to turn it into a special verdict. . The facts are stated in the opinion of the court.

On demurrer to the replication. The declaration was in assumpsit on a promissory note made by the defendant, dated December 2d, 1822 ; to which he .pleaded his discharge, under the act to abolish imprisonment for debt, granted October 3d, 1823. To this the plaintiff replied, that after the discharge, the defendant ratified, renewed and confirmed the promise set out in the declaration. r , . . , General demurrer and joinder.

<p>On demurrer to the plea, in an action on 'the covenant for enjoyment,</p>

These were cross appeals from a decree of the Court of Chancery. The facts are stated in 1 Hopkins’ Ch. Rep. 373 to 386, S. C. The prominent facts of the case, will also be found stated in the opinions delivered by Sutherland, J. and Golden, Senator, in this Court.

<p>On error from the Supreme Court. The same case in the court below, is reported in 3 Go wen’s Rep. 393 to 438.</p> <p>Sutherland, J. and Savage, Ch. J. assigned the reasons in support of the judgment in the court below, as in 3 Cowen’s Rep. 419 to 438.</p> <p>The case was argued by</p>

■ On error from the Supreme Court. The cause was originally commenced November 13th, 1818, before a justice of the peace of Washington county. In that court, Allen & M’Allister, plaintiffs, sued Gourley & Wood, defendants, who were both served with a summons, returnable the 20th (then) inst.

<p>On appeal under tile late act, (sees. 41, ch 94,) it was not error for the common pleas to try without a jury, when none was demanded by either party.</p> <p>Overseers of the poor are not liable for medical or other services rendered to a pauper, without their request, or express promise to pay.</p> <p>These officers have no right to appropriate the monies of their town, in any case, without the previous order of a justice of the peace.</p> <p>Upon error brought, and the judgment of the Court below being reversed, for a defect of form, as the want of a venire, the merits being with the defendant in error, the proper course is to award a venire to the Court below, that the cause may be tried in due form, and a verdict and judgment rendered accordingly.</p> <p>Whether overseers of the poor are ever liable' in their corporate capacity ? Quere." Per Spencer, Senator.</p> <p>And, per Tallmadge, President, they are.</p> <p>Whether the select men of another state are liable to an action here for neglect of official duty ? Quere.o Per Spencer, Senator. '</p> <p>And, per Tallmadge, President, they are not.</p> <p>A pauper may, under certain circumstances, sue the overseers of the, poor, for a total neglect of duty ; but third persons, not interested, cannot do this. Per Spencer, Senator.</p> <p>The Court of Errors may reverse a judgment of the Supreme Court in part and affirm it in part. •</p> <p>Overseers of the poor are liable, sometimes in their corporate, and sometimes in a personal capacity. In the former cases, their persons or property are not affected by the judgment; but only the corporate property. Otherwise, where they are liable personally. Per Tallmadge, President.</p> <p>On appeal to the C. P, under the stat. (sess. 41, ch. 94,) it was not erroneous to try the cause without a jury, especially where a trial by jury was not demanded by either parT</p> <p>not appropriate money without the order of a not^liaiie*1 for medical servía^a'up'e^without request of the overseer, or his express promise to pay. An overseer of the poor can-</p> <p>it ih.e judgbTrev°ersed°Uon em?dífr af°r" merits being with the defenaant m error, a venire should g0"</p> <p>The present case stronger for the plaintiffs in error than the next preceding one.</p> <p>Case stated.</p> <p>The question upon the merits.</p> <p>English cases.</p> <p>New York cases.</p> <p>Overseers of the poor are not, on any emergency liable for services rendered to a pauper without their request, or an express promise to pay, unless upon the order of a .justice.</p> <p>Whether they are over liable in their official or corporate capacity; especially those of another state.</p> <p>A pauper may, under circumstances, sue overseers for a total neglect of duty; othererwise of third persons.</p> <p>As to the form of the proceedings.</p> <p>Where a judgment is reversed for form, the merits being with the defendant in error, a venire should be awarded.</p> <p>When a judgment is reversed upon some point not involving the merits, a venire de novo is granted, of course, to try those merits.</p> <p>Court of errors may reverse in par and affirm in part, on wri of error.</p> <p>Our courts cannot 'inquire into the official conduct of officers of another state.</p> <p>Overssers of the poor are liable sometimes as corporations ; and sometimes personally.</p> <p>In the for mer case, they are not bound in person or property ; but the judgment affects the corporation only.</p> <p>For a total for ^ a*1qualified reversai, 10.</p>

The respondent, July 7th, 1818, filed his bill against the appellants and George Cooper, for the foreclosure of a mortgage executed by Cooper to the respondent, on the 20th of June, 1814, of certain land in Palatine, Montgomery County, which with a bond as collateral security, was conditioned to pay $1000, on or before the 1st day of June, 1815 ; and $1000, on or before the 1st day of June, 1816, with interest.

<p>An action, upon the 14th section of the statute concerning distresses, rents, and the renewal of leases, (1 R. L. 437-8) for aiding and assisting a tenant to remove goods from the demised premises, &c. lies against two or more jointly, the offence being in its nature one and inseparable. But only one penalty follows, and is imposed on all the defendants; not on each and every of them.</p> <p>Where a statute declares that “ any person” doing a certain act offends ; and that every person so offending shall forfeit, and pay, &e. it depends on the nature of the offence, as being entire or several, whether several persona jointly and simultaneously committing it are to be subjected, the whole to hut one penalty, or each to the whole penalty.</p> <p>Where a statute gives double the value of goods, by way pf penalty, to be recovered in debt, the jury may find the value of the goods, and the court double the value ill their judgment; and it is sufficient that the verdict say the value of the goods. This shall be intended the single, not the double value ; and the verdict need not say single value, in terms.</p> <p>Ill such case, if the declaration claim a certain sum, in conclusion referring to the statute by its title and date, or generally, “ contrary to the form of the statute, &c.” and the jury find the value ; this is sufficiently specific to warrant the court in doubling the value.</p> <p>It is not necessary in actions of debt for penalties of uncertain amounts, depending, for instance, on tho value of goods, that the plaintiff should recover the precise amount laid in his declaration.</p> <p>Under the statute (1 R. L. 437-8,) the landlord can recover but one penalty either in a joint or separate action against several persons jointly concerned in aiding, See. to carry away the goods. Per Golden, Senator.</p> <p>Tho practice of the courts oflaw, in doubling or trebling damages, or value, upon statutes, on verdict, finding single damages or value, approved. Per Sanford, Chancellor, and Golden, Senator.</p> <p>The action was wol brought against two defendants jointly.</p> <p>Tho penalty was properly doubled by the court.</p> <p>The offence was sufficiently shown in the declaration.</p> <p>Whether the action may bo against two or more, jointly.</p> <p>in r r. l. 437-8, s. 14, “ any person53 means same as all persons.</p> <p>Each defendant not liable for whole penalty ; but all defendants for one penalty. Landlord can recover but one penalty, whether he brings separate actions,</p> <p>or an action against all the offenders jointly.</p> <p>If the action, be in debt for a certain sum and refer to the statute by its title, this is sufficient, without claiming double value in terms.</p> <p>In actions for penalties depending on uncertain values the plaintiff need not recover the precise sum laid in the declaration.</p> <p>3d point, judgment for double value.</p> <p>The power of doubling the value does not belong exclusively to the jury.</p>

On error from the Supreme Court. The action in the court below was assumpsit by the defendant in error, against the plaintiffs in error, as makers of a promissory note. The declaration was of August term, 1820, against P. Smith and Soulden, being in custody, &c. and Van Santvoord, P. Sken.

On error from the Supreme Court. The action in that court was assumpsit by the present defendant, against the present plaintiffs in error. Judgment was for the plaintiff oelow upon the case, and for the reasons given by the Supreme Court, as reported in 3 Cowen’s Reports, 210 to 220.

<p>The widow of an alien purchaser, under the statute, (2 R. L. 542,) takes her dower as purchaser, within the meaning of that act, according to Sttiliff v. Forgey, 1 Cowen’s Rep. 89 to 97.</p>

Sanford, Chancellor, assigned the reasons for the decretal order of the court below, awarding an issue upon the title of the respondent, as in 1 Hopkins’ Ch. Rep. S. C. See that book, p. 436, to 450, for the report of this case in the court below, which presents the same points now passed upon by this court. The cause was argued here by

Ojt appeal from a decretal order of the Court of Chancery, sitting as a Court of Probate, in a testamentary cause on appeal from a decree of the Surrogate of the County of Rensselaer. The order appealed from, awarded an issue upon the will of Samuel Yanderheyden. The facts, so far as they related to the points of discussion in the Court of Chancery, on the merits, are stated in 1 Hop.