Volume 5 — Hill & Denio's New York Reports

<p>An affidavit on which to move to strike a cause from the calendar pursuant to the 48th rule, must show that the party moving has served a notice of argument, unless such notice has been served by the adverse party; but it need not state that the cause is on the calendar, or that a note of issue has been sent to the clerk. If the cause appear upon the calendar when the motion is made, that will suffice.</p>

Assumpsit, tried at the Tompkins circuit, in August, 1842, before Monell, C. Judge. The action was on a policy of insurance hearing date the 29th day of September, 1836, by which the defendants undertook and promised to insure the plaintiffs’ building against loss or damage by fire, to the amount of $1000, for the term of one year.

<p>There is no statute or principle of public policy which forbids the enlistment of aliens into the army of the United States; and such enlistments are therefore valid.</p> <p>When a statute directs a particular measure to be taken, it must be understood as referring its execution to the proper existing agents, and to annex, by implication, all the ordinary means for carrying the measure into effect. Per Cowen, J.</p> <p>If certain requisites are prescribed by a statute as essential to the validity of an act, these must be complied with or the act will be void. Per Cowen, J.</p> <p>Otherwise of an act done in disregard of a statute which is in its nature directory merely. Per Cowen, J.</p> <p>Semble, that though a recruiting officer make an unauthorized enlistment, the. United States may adopt the act, and thus render it binding on both parties from' the beginning. Per Cowen, J,</p> <p>There is nothing in the law of nations which denies to a citizen or subject the right of expatriation. Per Cowen, J.</p> <p>On a proceeding before an officer by habeas corpus to obtain the discharge of a soldier, the latter is not a competent witness to support the application. Per Cowen, J.</p> <p>A certiorari, however, to reverse the proceeding, does not bring under review the evidence given before the officer, nor any question as to its competency.</p>

Walker sued Jackson in the court below, and declared that in the year 1840 the plaintiff erected a certain building on Broadway, in the city of New-York, commonly called a log cabin, the same being intended and calculated for public and other meetings of a certain political party known and designated as the whig party, and for the sale of refreshments: that he suffered great loss and damages by erecting and continuing the log cabin, and was about to tear it down; and that in…

The trial took place before three justices and a jury, and lasted several days. In the course of the trial, the prosecutor having failed to procure the attendance of one Dutton whose deposition had been taken before the committing magistrate, it was proposed by the prisoner’s counsel to admit the deposition to be read in evidence, provided time were allowed him to obtain witnesses in order to show Dutton’s incompetency for want of religious belief.

Debt on bond, tried before Cushman, C. Judge, at the Albany circuit in June, 1842. The bond bore date July 10th, 1840, and was conditioned to pay all such claims and demands as had been exhibited, and should be established to have been subsisting liens on the steam canal boat or vessel called the Red Bird.

Demurrer to declaration. The action was for a breach of a covenant of quiet enjoyment contained in a deed of lands executed by the defendant to the plaintiff’s grantor.

Bostwick and Wells sued Nelson and Shumway in the court below, the capias as to Shumway being returned not served. The plaintiffs declared in debt on a bond made by the defendants in the penal sum of $250, dated, January 24, 1840, which, after reciting that Shumway had commenced a suit in the superior court against Bostwick and Wells, was conditioned to be void if Shumway should pay on demand all costs that might he awarded to the defendants in that action.

P. White commenced a suit before a justice of the peace against Trumbull and two others, trustees of school-district No. 17, in the town of Easton, and declared against them hi trepass de bonis, <fcc. The defendants pleaded the general issue, and gave notice of justification.

Ejectment, tried at the Schoharie circuit in October, 1842, tieforé Cushman,- C; Judge. The pMitiifkowned a lot ih the Belvidere patent, and the defendant a lot in the adjoining Skinner patent, between which patents two lines had been run which were about twelve chains apart. The Belvidere lay west of the Skinner patent. The plaintiffs claimed that the east or Cockburn line was the true boundary between the patents, and that their lot extended to that line.

& J. C. Hull, in debt, to recover the last year’s rent claimed to be due upon a lease of a store in the city of New-York. The lease was executed by one Brantingham to the defendants for the term of seven years from May 1st, 1834, and contained a covenant by the lessees to pay an annual rent of $700. In the month of March, 1835, the lease was assigned to the plaintiff, and he took a conveyance in fee of the demised premises. The defence was, an eviction by the plaintiff.

Motion to set aside report of referees. The action was for money received by the defendant to the plaintiff’s use. On the hearing before the referees it appeared that the plaintiff’s wife and her sister, the wife of Stephen Bennett, as two of the five children and heirs at law of John F. Lessley, claimed each one undivided fifth part of military lot number 39, in the township of Ovid, containing 600 acres.

<p>Where the declaration in a justice’s court was “ for moneys due on contract, (lost by tire,) damages for non-performance of contract,” &c., and the defendant, instead of calling for a more full statement of the cause of action, pleaded the general issue; held, that the plaintiff might give in evidence a written contract between him and the defendant for the conveyance of lands, and recover the money due thereon.</p> <p>Though a suit be tried on its merits before a justice and submitted for his decision, yet, if he omit to render judgment therein, the proceeding will form no bar to a second action for the same cause.</p> <p>The cases of Hess v. Beekman, (11 Johns. Rep. 457,) and Watson v. Davis, (19 Wend. 371,) commented on and explained.</p>

Debt, tried at the Rensselaer circuit in September, 1842, before Cushman, C. Judge. The action was on a bond dated April 4th, 1836, in the penal sum of $5,000, conditioned to pay $1465 with interest. Plea non est factum, with notice of special matter. After proving the bond, and that the amount due was $2032,82, the plaintiff rested.

Debt, tried at the Albany circuit in April, 1842, before Cushman, 0. Judge. The declaration demanded the sum of $1002,50, for the wharfage of defendants’ vessels in the Albany basin during the year 1840. The defendants pleaded nil debet.

*P. Rose sued Barber in a justice’s court, and declared in assumpsit on the common counts, and also on a special contract by which the plaintiff agreed to lay a quantity of stone wall and dig a certain ditch for the defendant for the sum of $100. The declaration further averred that, after performing a part of the work, the defendant agreed to aid the plaintiff in completing the job for a reasonable compensation. The plaint ff claimed $100 damages.

Debt, tried at the St. Lawrence circuit in February, 1842, before Willard, C. Judge. The action was brought to charge the defendant as a stockholder of the Rossie Galena Company, for a demand contracted by the company.

P., where the defendants in error sued the plaintiff in error in debt to recover the penalty given by the 26th section of the “ act to amend the acts heretofore passed for the prevention of fires in the city of New-York,” passed April 20th, 1830. (Ness.

Assumpsit, tried at the Fulton circuit before Willard, C. Judge, in May, 1841.

Assumpsit, tried at the Erie circuit in November, 1841, before Dayton, C. Judge. The action was commenced against Taylor & Pratt, but the latter having died intermediate the issue and trial, the suit afterwards proceeded against Taylor as survivor. The declaration counted upon a contract bearing date on the 5th of April, 1836, alleging a modification thereof on the 16th of November following. It also contained the common counts.

The plaintiffs in error sued the defendants in trover for a steam engine and two boilers. The New-York and Shawangunk Mining Company formerly owned certain real estate in the county of Sullivan, upon which they had buildings and works for the smelting of lead ore.

P. The suit originated in a justice’s court, and was commenced by warrant in favor of Swartwout & Baucus against Roddis.

P. The suit was commenced in a justice’s court by the trustees of the village of Albion against Tanner, to recover a penalty of five dollars for the violation of the following ordinance of the plaintiffs, viz* “It shall not be lawful for any person or persons to keep or maintain in the said village, any ball-alley, or apparatus, alley, machine, building or enclosure, constructed or used for the purpose of playing thereon or therewith at the game called or known by the name…

Debt, tried at the St. Lawrence circuit, in July, 1842, before Willard, C. Judge. The jury rendered a verdict in favor of the plaintiff, and the defendant now moved for a new trial on a bill of exceptions. The case is sufficiently stated in the opinion of Cowen, J.

<p>A subsequent ratification of acts done under an assumed agency, is equivalent to an original authority. Per Cowen, J.</p> <p>In such case the ratification of a part of the transaction enures as a ratification of the whole. Per Cowen, J.</p> <p>Where property was purchased for a corporation by two of its officers, who gave several notes in the corporate name for the purchase money, and afterwards the property was claimed by the corporation and converted to its own use; held, that this amounted to a ratification of what the officers had done, and that even if the notes were originally given without authority, the corporation was liable upon them.</p> <p>Held further, that in a suit brought to recover upon one of the notes, the plaintiff might show he had obtained judgment by default against the corporation upon another of them, by way of fortifying the evidence of ratification.</p> <p>If an incorporated company purchase property and convert it to their own use, they will not be permitted to defeat a recovery for the price, by showing that the pur. chase, on account of the nature of some of the property, was probably though not necessarily an abuse of the powers granted by their charter.</p> <p>Otherwise, if the vendor was apprised at the time of the sale that the company were acting in violation of their charter. Per Cowen, J.</p> <p>The Rossie Lead Mining Company, a coiporation, purchased, a large amount of property which had been previously used by the vendor in carrying on the busi. ness of washing and smelting lead ore, consisting in part of a house and lot, fifty acres of improved land with several houses thereon, a building which had been used for a store, a school-house, threshing machine, &e.: Held, in an action upon one of several notes given for the purchase money, that the purchase was not necessarily an excess of the power granted by the charter, and that the plaintiff was therefore entitled to recover. Bronson, J. dissented.</p>

Debt on bond dated February 24th, 1840, in the penal sum of $250, which, after reciting that the New-York and Erie RailRoad Company had appealed from a decree of the vice-chancellor of the eighth circuit in a suit where the plaintiff was the complainant, was conditioned that the rail-road company should diligently prosecute the appeal, and pay to the plaintiff on demand all costs and damages that might he awarded against the company.

Assumpsit, tried before Kent, C. Judge, at the New-York circuit, in February, 1842. The plaintiffs sought to recover upon the defendant’s guaranty of a note as follows:—“ §287,10. Six months after date I promise to pay to the order of John Bagley, two hundred eighty-seven Tyu dollars at the Lockport Bank, for value rec’d. Lockport, March 20, 1837. (Signed) B. G. Lewis.” (Endorsed) “ J. Bagley.

Assumpsit on a policy of insurance, tried before Moseley, 0. Judge, at the Yates circuit, in November, 1841. The policy was dated May 15, 1840, and by it the defendants insured the plaintiff to the amount of $5000 for the period of five years against loss or damage by fire to his grist and flour and saw mills, situate in Potter, Yates county.

Action on the case, tried before Monell, C. Judge, at the Tioga circuit, in January, 1041. The plaintiffs sought to charge the defendant for negligence in the discharge of his duty as cashier of the bank in relation to a certain note,by which the plaintiffs had sustained damages.

Trover for ten head of cattle, tried at the Westchester circuit, before Rugóles, C. Judge, in April, 1842. The defendant, who resided in Herkimer county, owned a farm near Rome, in Oneida county, on which he kept cattle under the charge of one Lambert.

Assumpsit, tried before Cushman, C. Judge, at the Albany circuit, in July, 1842. The plaintiff gave in evidence a bill of exchange drawn on him by the defendants, as follows: 11 Palmyra, Oct. 25th, 1841. Seventy-five days after date please pay our own order one thousand dollars, value received, and charge the same to the account of your humble servants. Terry & Post, To J. K. Wing, Albany. T. W. Gurney, Jotham Post.” The bill was endorsed by the defendants.

Motion to set aside the report of a referee. The action was assumpsit for goods sold and delivered; and, on the hearing before the referee, the defendants offered to set off an account against the plaintiffs contracted with the firm of Strong & Tolley ; the same having been assigned to the defendants by an instrument under seal, executed by Strong alone, before the commencement of this suit.

<p>Certiorari to Samuel McKoon, judge of the Chenango county courts, counsellor &c., to remove proceedings before him upon habeas corpus. On the 12th of July, 1842, he issued a writ of habeas corpus directing the sheriff of Chenango to have before him the body of John M. Cassels, together with the cause of his imprisonment &c. The writ was executed the same day, and the sheriff returned that he detained Cassels in his custody in the jail of the county by virtue of the following commitment:</p> <p>“ Chenango county, ss : F. S. Edwards, Esquire, a justice of the peace of said county: To any constable of the said county, and to the keeper of the common jail of the said comity. Whereas, on the trial of a cause this day before me, the said 'justice, upon the examination of one Sally Grant on a criminal complaint, John M. Cassels was called and sworn as a witness on the part of the people, and on his examination as such witness the said John M. Cassels was asked by Roswell Jackson, Esq’r, counsel for the people, whether he knew or had learnt in what manner Betsey L. Stafford went to Troy, to which question the said John M. Cassels refused to make any answer, and the said Amos Stafford having made oath before me that the testimony of the said John M. Cassels was material upon said examination. These are, therefore, in the name of the people of the state of New-York, to command you, the said constable, forthwith to convey and deliver the said John M. Cassels into the custody of the keeper of the said common jail, and you, the said keeper, are hereby required to receive the said John M. Cassels hito your custody in the said common jail and there him safely keep until he shall submit to answer the said question so put to him on the said examination or shall be discharged by due course of law. Given under my hand and seal this 11th day of July, 1842.</p> <p>F. S. Edwards, [l. s.]</p> <p>Justice.”</p> <p>The judge, without causing notice to be given to the district attorney, proceeded to enquire into the matter. Cassels, the prisoner, was examined on oath,(a) and a witness was examined on his behalf. The testimony tended to establish the following facts: In June, 1842, Cassels was arrested and examined before Justice Briggs on a charge of kidnapping and carrying off one Betsey L. Stafford from the county of Chenango to the city of Troy, Rensselaer county. After having been kept under examination about a week, he was discharged by the justice for the want of evidence. He was then summoned to appear before Justice Edwards as a witness on the 11th of July, and was then sworn and examined, for the purpose, as was said, of eliciting facts upon which a warrant might be issued against one Sally Grant, of the city of Troy, for her alleged agency in procuring the abortion of Betsey L. Stafford at the city of Troy, which was followed by the death of said Betsey. When Cassels was sworn, he was not examined touching the supposed guilt of Sally Grant, but was required to state what he knew about the transportation of Betsey L. Stafford from Chenango to Rensselaer county. Wlien asked the question mentioned in the commitment he declined answering it, on the ground that it might form a link in a chain of evidence tending to criminate himself. Sally Grant was not before the justice, and it was not alleged that she was in the county of Chenango, or that she had ever committed any crime in that county—the crime imputed to her having been committed in Rensselaer county, where she resided.</p> <p>The judge decided, that Justice Edwards acted without authority in the proceeding upon which Cassels was sworn as a witness, for the reason that Sally Grant was neither before the justice, nor in the county of Chenango at the time, and it was not alleged or pretended that she had committed any offence in that county, but only in the comity of Rensselaer where she lived: and on that ground an order was made discharging Cassels from imprisonment. The district attorney brought this certiorari to reverse the proceedings before the judge.</p>

Demurrer to pleas. The first count of the declaration was in substance as follows: The Auburn and Rochester Rail-Road Company, defendants, were summoned to answer The President and Directors of the Seneca Road Company, plaintiffs, in a plea of trespass: And hereupon the said plaintiffs by «fee. complain of said defendants in a plea of trespass; for that the said plaintiffs, under and by virtue of an act See. passed April 1st, 1800, became, were and are a corporation; that…

P. Kirkland sued Wilson before a justice of the peace on a promissory note. The plaintiff gave evidence tending to show that the note was made by the defendant, and among other things produced a letter written by the defendant. When the letter was produced, T. T. Davis, a witness for the plaintiff, testified that he should think the signature to the note and the letter the same.

Trover for a span of horses, tried at the Madison circuit in September, 1841, before Gridley, C. Judge. The plaintiff proved that he purchased the horses of his brother, B. A. Green, on the 28th of May, 1841, and that they remained in his (the plaintiff’s) possession from that time until they were taken from him by order of the defendant in July thereafter. After giving evidence of the value of the horses, the plaintiff rested.

P. Stall sued Dowd, in October, 1838, before a justice of the peace, for goods sold and delivered. He made affidavit before the justice that Dowd was justly indebted to him, and resided out of the state. A summons was issued on the 15th, returnable the 18th of October, 1838, and was served the day it issued. The plaintiff appeared, but the defendant did not appear.

Assumpsit on a policy of insurance, tried before Monell, 0. Judge, at the Tompkins circuit, in September, 1842.

Replevin for a yoke of oxen, tried before Monell, C. Judge, at the Chemung circuit, in June, 1842. The defendant is a constable, and took the property out of the possession of the plaintiffs by virtue of an attachment issued by a justice of the peace against one Everitt Lattin in favor of M. & H. Phillips.

P. Baum sued Clause in the court below in January term, 1841, for slanderous words charging that the plaintiff had several years before stolen an axe from one Henry I. Loyd. Plea in bar, that in January, 1825, at &c. the plaintiff did feloniously steal, take and carry away an axe, the property of Loyd; and that in February following the plaintiff was convicted of the offence by a court of special sessions.

• Error to the mayor’s court of the city of Albany, where Zeh sued Artcher in assumpsit for money had and received.

Ejectment, to recover dower in a farm of 83 acres in the county of Ulster, tried in that county before Ruggles, C. Judge, in November, 1840.

” The defendants below pleaded, 1. Nil debet; and 2. That they were duly constituted a body politic and corporate by an act of the legislature of this state, passed May 3d, 1834, (iSess.

Demurrer to plea in abatement puis darrein continuance. The action was brought by Elizabeth Harkness for slander. The defendant pleaded the general issue, and gave notice of special matter. Afterwards a plea in abatement was interposed, alleging that, since the last continuance, the plaintiff had married. This plea concluded by praying judgment of the writ.

P. The action was brought by “ The Commissioners of Highways of the town of Cortiandville,” without mentioning their names, on a promissory note in these words; “1 promise to pay the commissioners of highways of the town of Cortiandville one hundred dollars and sixty-six cents, with use, one year from date, for value received. February 16th, 1841. The consideration is for borrowed money.

Assumpsit, tried at the Montgomery circuit in May, 1840, before Willard, C. Judge. The action was on a promissory note made by James Halladay, for $300, dated September 11th, 1835, payable to the order of M. J. Bovee, at the Montgomery County Bank, ninety days from date. The note was endorsed by M. J. Bovee and W. Reid, and discounted by the bank for Halladay. It was duly protested for non-payment, and notice given to the endorsers.

Replevin for two locomotive engines and two passenger cars, tried at the New-York circuit, in December, 1842, before Kent, C. Judge. The defendant pleaded, 1. Non cepit. 2.

Ejectment, tried before Moseley, C. Judge, at the Onondaga circuit, in September, 1842. Each party gave in evidence the same chain of title as on the former trial. (See 2 Hill, 566.) Evidence was then given touching the alleged payment of the Hulburt judgment, under which the defendant made title. . The fieri facias issued on the Hulburt judgment was tested on the 12th, and made returnable on the 16th day of July, 1836, and was delivered to William A. Cook, a deputy sheriff.

Assumpsit, tried at the Herkimer circuit, in September, 1834, before Denio, C. Judge. The action was by John R. Willis against Lester Green, on a promissory note in these words: “ By the first of January next, I promise to pay John R. Willis, to the order of Smith Johnson and Lester Green, at the bank of Utica, in the village of Utica, four hundred and seventy-four dollars and ten cents, for value rec’d. Little Falls, August 29th, 1827.

P. The action in the court below was by the Cayuga County Bank against H. Bennett, F. Bennett and C. B. Hotchkiss, executors &c. of A. P. Bennett deceased, on a promissory note for $2000, made by R. Muir, dated May 25th, 1840, and payable to the order of A. D. Leonard and C. B. Hotchkiss, three months after date, 'at the plaintiffs’ bank. The note was endorsed by the payees and by the defendants’ testator.

Demurrer to replication. The declaration was in trespass for false imprisonment.

Demurrer to plea. The declaration was on a common money bond, and the defendant pleaded that, before &c. on ,&c. at &c., Daniel E. Washburn, Isaac Noble and Horatio Warner were arrested at the suit of the plaintiffs, on writs in an action of trover, as the said plaintiffs by John Magee and others their agents alleged, to recover from them or each of them the sum of $2000 or thereabouts, which had been obtained from the Steuben County Bank by the said Washburn, as was…

<p>If, in a written contract signed by two, it be said that it is “ agreed” the one shall furnish the other with certain property at a specified price, this imports a promise by the latter to accept and pay; for agreed is to be deemed the word of both parties. Per Nelson, Ch. J.</p> <p>F. and B. entered into written articles commencing thus, “ Agreement made &c. between F. of the first part and B. of tire second part,” whereby F. agreed to let B. have the privilege, for a specified period, of cleansing ore at F.’s forge, and of using a certain amount of surplus water for that purpose ; B. agreeing to erect machinery therefor, and to furnish F. with so much cleansed ore as might be wanted in stocking his forge at a price stated. Held, that the latter clause of the agreement was mutually binding, and that F. could not legally refuse to ac. cept and pay for the ore contemplated by it.</p>

Error -to the Tioga O. P., where Nixon sued Carpenter in assumpsit for. money paid'&c. The case was this: A creditor’s bill was filed in the court of chancery in behalf of Nixon and ' Carpenter, against Dunham, Belcher, and Hendrickson, for the purpose of eiiforcing.the collection of separate and distinct judgments which each of. the complainants had recovered against Dunham. Nixon’s claim amounted to $82,69, and Carpenter’s to $211,58.

• Error to the Chenango C. P. Wood and Per Lee sued Randall before a justice, and recovered judgment for $49,08 damages, besides costs 5 whereupon Randall appealed to the common pleas. It appeared from the justice’s return that the suit was commenced by attachment retainable four days from date and served three days before the time fixed for the return thereof.

. Ejectment, tried at the Steuben circuit, in May, 1836, before Monell, C. Judge. The declaration contained three counts—■ one in favor of C. Cameron, as devisee, trustee and executor of Dugald Cameron deceased, another in favor of Leland, as devisee and trustee of W. Helm deceased, and a third in favor of both plaintiffs jointly, in their representative capacity.

<p>Error to the Dutchess O. P. Brownell sued Flagler before a justice of the peace in an action on the case to recover the value of a cosset-lamb. The lamb ran with the plaintiff’s cow, and both were pastured in the field of one De Langs. The cow and lamb got into the highway on the 5th or 6th of November, 1841, and on that day the defendant, who lived within a mile, passed with a flock of about 20 lambs which he had sold to a drover by the name of Pure. The plaintiff’s lamb mingled with the flock, and the defendant drove them all on together, knowing that the strange lamb was in the flock, and left them in the yard of one Shearman for the drover, who came the next morning and took them all away to market. The defendant lmew that he left the strange lamb in the yard among the rest; but he received nothing for it from Pine, having been paid for his own lambs before he drove them to Shearman’s, where Pine was to come for them. The jury found a verdict for the plaintiff, and the justice rendered judgment in his favor. The defendant removed the cause to the C. P. by certiorari, where the judgment was reversed, on the ground that the plaintiff was chargeable with negligence for allowing His lamb to be in the highway. The plaintiff brought error.</p>

P. Van Cott sued Harriott in the court below in trespass da bonis, and the case was this: Harriott brought an action in the marine court of the city of New-York against one Bailey as the maker and Van Cott as the endorser of a promissory note. The suit was commenced by long summons, which was served on Van Cott more than six days before the return day, and on Bailey less than six days before the return day.

Ejectment, tried at the Steuben circuit, in June, 1841, before Monell, G. Judge. The action was brought to recover a lot of l'and containing 169 acres, which the plaintiffs claimed under a deed from the comptroller of the state, dated May 13th, 1832, executed on a sale for taxes made in 1830. After giving the deed in evidence, and proving the defendant to have been in possession at the commencement of the suit, the plaintiffs rested.

Assumpsit, tried before Edwards, C. Judge, at the New-York circuit, in July, 1841. The declaration contained the common counts and concluded .by claiming one thousand dollars damages. The defendant pleaded noñ-assumpsit. He afterwards interposed a plea, averring that, since the last continuance &c., to wit, on <fcc., he paid to the plaintiffs the several sums of money mentioned in the declaration. The plaintiff replied, taking issue.

<p>Slander, tried at the Otsego circuit, in September, 1840, before Gridley, C. Judge. The action was for -words charging the plaintiff with having committed perjury in. testifying upon the trial of a cause before a justice. Plea, the general issue, with notice of justification and former recovery. The plaintiff had previously obtained- a verdict against the defendant for a like charge in relation to the same testimony; and, in opening the cause to the jury, the plaintiff’s counsel stated, among other things, that the objéct of the present action was to recover damages for a repetition of the charge since the former trial! After proving the testimony given by the plaintiff before the justice, the witness called for that purpose was asked what he had heard the. defendant say in respect to the plaintiff’s having committed perjury, &c. The-circuit- judge-thereupon remarked that, as he understood the opening of the plaintiff’s counsel, it was confined to words spoken since the former trial, and the witness could not therefore be allowed to speak of other words. The plaintiff’s counsel replied that he must have been misunderstood by the judge, but, in order to correct all misapprehension upon the point, proposed to explain or modify his opening so as to include any words spoken- since the commencement of the former suit, but before the trial thereof, provided they came within ■ the pres-' ent declarationand he accordingly offered evidence of such words. The circúit judge refused to allow a modification of the opening, and rejected the evidence offered. The trial progressed, but the plaintiff failed to establish his case under the limitation prescribed by the judge, and a nonsuit was therefore ordered. The plaintiff now moved for a new trial on.a case.</p>

convicted of grand larceny. The evidence tended to show that' the goods alleged to have been stolen were obtained by purchase fraudulently and under false pretences. The court below charged the jury that, if they believed the goods were thus obtained, they might convict of larceny; and to this, the prisoner’s counsel excepted. The jury rendered a verdict of guilty; and, after judgment, the prisoner sued out a writ of error.

There had been a previous trial of the prisoner under the same indictment, followed by a disagreement of the jury. OneBlackman was sworn at the first trial as a witness for the people; and, he having since removed from the state, the district attorney proposed to give in evidence his former testimony. ' The prisoner’s counsel'objected; but the court received the evidence. Exception.

<p>Where, on appealing from the decision of a circuit judge denying a new trial, the party obtained an order staying proceedings pursuant to Sess. L. of ’32, p. 189, § 4, instead of giving security, and, after the time for appealing had expired, the circuit judge revoked the order; held, that the party was precluded from prosecuting his appeal, though the revocation was granted on an ex parte application.</p>

The action in the court below was by Scribner and others against The Howard Insurance Company of New-York, on a fire policy for qne year, dated November 25fh, 1S3§. The whole amount iusnred was $5000, as follows: “ On frame buildings adjoining and communicating, occupied as a distillery and rectifying establishment, situated on the north-east corner of Sheriff and Stanton streets, marked 1, 2 and 3 on plan on file No. 2963— $750.

Declaration, that the .plaintiffs, on the 28th of January, 1841, recovered a judgment in this court against Joseph Leslie for $544,28. That on the 2d of March, 1841, a fi. fa. was issued on the judgment to the sheriff of, Onondaga, returnable in sixty days, which was delivered to the defendant, then being a deputy of the sheriff of Onondaga.

Debt on judgment, tried at the Steuben circuit, in June, 1841, 'before Monell, C. Judge. Samuel Brownson and the defendant entered into a written agreement, dated the 6th of December, 1820, by which the former agreed to sell and the latter to purchase a lot of land in Steuben county, for the sum of $480,61, payable in three equal annual instalments. On the 7th of June, 1825, Brownson conveyed his interest in the land and assigned the contract to the plaintiff’s testator.

Assumpsit, tried before Cushman, C. Judge, at the Albany circuit, in January, 1842.

Debt upon a judgment for $520,07 recovered by the plaintiff against the defendant in the superior court of the city of New-York, August term, 1841, in an action upon promises. Plea, 1. Nil debet; 2.

After judgment rendered in the supreme court against the plaintiffs, (see 1 Hill, 91 et seq.,) they brought error to this court; and now,

<p>Though referees impose costs as the condition of granting an adjournment to a party, and he refuse to pay, the court will not award a precept against him, nor compel payment on motion.</p> <p>The only remedy tif the opposite party in such case, is to proceed at once to a hear, ing. Semble.</p> <p>The referees may require the party applying for the adjournment to stipulate in writing that, in default of payment, the collection of the costs may be enforced by a rule in the cause. Per Cowen, J.</p>

Feigned issue from chancery, to try the question of adultery charged by a husband against his wife. The husband noticed the cause for the Albany circuit, but did not bring it to trial; and a motion was now made for a rule that he pay the costs of the circuit. The cause was not noticed for trial by the wife.

The plaintiffs in the first entitled cause resided in Albany, and on the 26th of May, 1842, they caused a ft. fa. to be issued and delivered to the sheriff of Washington county, where the defendants resided, with an endorsement thereon directing the collection of $228,53.

Assumpsit, tried at the New-York circuit in March, 1841, before Gridley, 0. Judge. The action was brought to recover certain instalments upon the defendant’s subscription to the capital stock of the plaintiffs’ company. On the trial the case was this: In May, 1833, the legislature of Connecticut passed an act authorizing the plaintiffs to construct a rail-road, from the town of Hartford to the city of New-Haven.

<p>A party who has derived benefit under a contract, and is not in a condition to restore what he has received, cannot avoid it on the ground of fraud, but must seek his redress by an action on the case; or, if sued upon the contract, he may recoupe. Per Bronson, J.</p> <p>W. having taken a lease for three years, afterwards applied to H., the landlord, to be discharged for the last year of the term, which the latter declined, saying, however, he would try to find a tenant for. W.; but, a few days previous to the commencement of the last year, the parties came to terms, and W. was discharged, he paying H. $100 by way of consideration. Held, that though at the time of this arrangement the premises had been re-let by H., and he fraudulently represented the fact to be otherwise, W. could not maintain assumpsit to recover back the money paid.</p>

Motion in arrest. The declaration contained six counts, three of v/hich charged, in substance, that the defendant Bond colluded with Morss, the other defendant, to induce the plaintiffs to sell certain goods on credit to the said Morss, by fraudulently representing him to be a person fit to be trusted &c., and fraudulently concealing the fact of his being an infant; and that afterwards, by means of such fraudulent representation and concealment, the plaintiffs were induced…

P. In the court below Weeks as the endorsee sued Boyd as the maker of a promissory note for $66,66. The declaration contained the money counts demanding $200 damages, and a copy of the note was served with it. Plea, non-assumpsit. On the trial, the defendant oifered to prove that he had paid the note after suit brought. The judge rejected the evidence, on the ground that the defence should have been pleaded. Exception.

On error from the superior court of the city of New-York, where Hoyt and others sued Lillie for money had and received. The parties all resided in the city of New-York, and the suit was commenced on the 16th of September, 1840.

<p>If the offence charged in an indictment he of a local nature, whatever is stated by way of describing the place where it was committed must be proved precisely as laid.</p> <p>Accordingly, where an indictment for arson described the building as situated in the sixth ward of the city of New-York, and it turned out in evidence upon the trial that the building Was in the fifth ward; held, that the prisoner was entitled to an acquittal.</p>

; Assumpsit, by the endorsees against the last endorser.of a promissory note, tried at the Cayuga circuit, in October, 1842, before Moseley, C. Judge. The defence was, that there had not been a demand and notice; to which the plaintiffs answered that both had been waived by the defendant.

P. Millard sued Whitaker in April, 1837, before a justice, and declared in debt on a justice’s judgment Pleas 1. The general issue; 2. A former recovery on the same judgment; and 3. The statute of limitations. The justice gave ■ judgment for the plaintiff. The defendant appealed, and on the trial in the C. P. the cáse was this: In July, 1827, the plaintiff recovered a judgment before a justice of the peace against the défendant for $29,55.

Ejectment for the one undivided fifth part of certain lands - in Flatbush, Queens county, tried before Ruggles, 0. Judge,' . at the Queens circuit, in September, 1842.

Y. Pope sued Luff in the marine court of the city of New-York, and declared in assumpsit; and, upon issue joined and trial had, there was judgment for the plaintiff for $66,97 besides costs. The defendant removed the proceedings by certiorari into the superior court, where, after the marine court had made two returns, the' defendant (plaintiff in error) assigned errors, and the. plaintiff (defendant in error) Joined in error.

P., where the defendants in error sued Smith in debt on an award of arbitrators. The submission was by bond executed by the plaintiffs below (who were described in it as the widow and heirs of Isaac Van Nostrand deceased,) of the first part, and the defendant below of the second part.

Assumpsit on four promissory notes dated December 5th, 1835, amounting to $495, made by the defendants, payable to. their own order eight months after date, and endorsed by them to the Sea Insurance Company.

P. Trowbridge sued Fanning before a justice of the peace by summons returnable June 12th, 1840, at 10 A. M. One Gould appeared for the plaintiff and declared on an account. The defendant appeared in person, but refused to plead, and objected to the appearance of Gould.

P. Smith sued Frost before a justice of the peace, and declared in trespass de bonis &c. Smith was a constable, and claimed the goods in question under a- levy made by him in virtue of an execution. The judgment on which the execution issued was in favor of Hill and Daniels, against one Sherwood, and was recovered before the same justice who tried the present cause.

Assumpsit, tried before Ruggles, C. Judge, kt the Ulster circuit, in October, 1842. The action was brought against McFarlan as the acceptor, and the other defendants is the drawers and endorsers of a bill of exchange as follows : “ Saugerties, 25 Oct. 1841. u Ninety days after date please pay to our own order one thousand dollars, and charge the same to account of yours respectfully, Wm. H. Deforest & Coi To Henry McFarlan, Esq., New-York.” Endorsed—“ Wm.

Locke sued Hinton in the court below, and declared in assumpsit for work and labor &c. The cause was referred to a sole referee, who made a special report which presented the following case. The plaintiff wag a house carpenter, residing in the city of New-York. The defendant was an old resident of the city, where - he still carried on business, but now resided in the state of New-Jersey.

Johnson arrested the defendant on a warrant issued by the inspectors of election of the city of Utica for interrupting the proceedings at the election by disorderly conduct in the presence of the inspectors. (1 R. S. 137, § 37.) The warrant was regular and sufficient upon its face. The defendant resisted the officer, and for that assault he was indicted.

Guinlen sued Sheldon and George Allerton in trover for an ox, before one of the N. Y. assistant justices, and, after issue joined and trial, the justice gave judgment for the plaintiff against both defendants for $45 damages and $4,99 costs. On certiorari the superior court reversed the judgment as to Allerton, and affirmed it as to Sheldon, allowing no costs to either party. Sheldon sued out a writ of error.

(1 R. (S'. 640 et seq.) The return disclosed the following facts; On complaint being made to John Foote, a justice of the peace of the town of Hamilton, Madison county, by the overseers of the poor of that town, charging Thayer with being the father of a bastard child of which Minerva Waterhouse had lately been delivered, a warrant was issued dated May 30th, 1842, by virtue of which Thayer was arrested and brought before the said jus- ■ tice. ‘ Thomas Millen, another…

P. From the judgment record it appeared that Whitby sued Booth in the court below, and declared upon the common counts in assumpsit, serving a copy of a promissory note with the declaration. The defendant pleaded the general issue with notice of set-off.

<p>Error to the New-York C. P., where judgment was rendered in favor of Luer, the plaintiff below. Waydell and others, the defendants,.thereupon brought error. The case is sufficiently stated in the opinion of the court, ' . .</p>

Derick brought replevin in the court below against Mount, Jackson and Babcock, for detaining a harness. Moúnt and Jackson pleaded, and Babcock suffered judgment by default. On the trial it appeared that Babcock ordered the harness to be made by the plaintiff, agreeing to pay for it on delivery, but that it was delivered by the plaintiff without receiving the money.

<p>The contract of a factor, binding him in the terms implied by a del credere commission, is not within the statute of frauds relating to promises to answer for the debts &c. of third persons, and is therefore valid though by parol.</p>

Assumpsit against the defendant as a stockholder in “ The New-York Stock Frame and Cotton Manufacturing Company,” to recover the amount of a debt due from the company to the plaintiffs; the company, as ivas alleged, having been dissolved. The same case was formerly before the court on demurrer to the plaintiff’s declaration. ( See 24 Wend. 473.) An issue of fact was afterwards joined, and the cause was tried before Kent, C. Judge, at the New-York circuit, in January, 1842.

<p>A note was endorsed by W. for the accommodation of B., the maker, who thereupon confessed judgment in favor of the former, by way of indemnity. B. transferred the note to M. as collateral security for the price of goods to be thereafter purchased, informing the latter of the fact that W. was only an accommodation endorser. Goods were accordingly sold by Mi to B. from time to time; and, on a settlement of the account between them some months after the note became due, B. was found indebted in a large amount, for which M. took his notes payable at a future day. Held, that this suspended M’s. right to sue B. until the last mentioned notes became due, and that W. was consequently discharged from liability as endorser.</p>

Assumpsit, tried before Kent, C. Judge, at the New-York circuit, in October 1842. The action was on a promissory note of $1500, made by the defendants on the 21st of September, 1836, and payable to the plaintiff on demand, with interest. The defendants borrowed $1500 of the plaintiff, and gave him the note in question.

Debt, tried at the Livingston circuit, in September, 1841, before Dayton, C. Judge. The action was on a bond in the. penalty of $10,000, executed by the defendants in pursuance of the ' “ Act to authorize the erection of a dam across the Genesee river at Mount Morris” (Sess. Loads o/1826,y>. 180) and the act amending the same. (Sess.

<p>The vendor of goods, in an action by the vendee for a breach of warranty, is not liable for remote and accidental losses sustained by the latter in consequence of the defect warranted against. ' Per Cowen, J.</p> <p>Where cloth was' purchased in bales at New-York, expressly for the Mexican. market, the vendor delivering to the vendee an invoice in which -the number of yards was considerably over-stated, and warranting the' invoice to be correct; held, in an action for a breach of the warranty, that the vendee could not recover as a part of his damages the excess of duties and imposts paid by him on the cloth at the Mexican custom-house, though it appeared that the' excessive pay- ■ ment was occasioned by the error in the invoice. .</p> <p>Various cases relating to the rule of damages in actions upon general and special warranties citéd and commented on. Per Cowen, J.</p>

Assumpsit, tried at the New-York circuit, in January, 1842, before Kent, C. Judge. The action was brought against the defendants as makers of a promissory note payable to the order of and endorsed by B. 0. Hoyt. The defendants had formerly done business under the firm name of John Griffith & Co., but the partnership was dissolved before the date of the note in question.

Demurrer, to declaration. The action was brought to recover the amount of the defendant’s subscription to the capita] stock of the Williamsburgh and New-York Union Ferry Association. The declaration averred, in substance, that the association was'formed by the voluntary agreement of a large number of persons, including the parties to this suit.

Demurrer to replication. The declaration was in trespass de bonis. Plea, that the goods were taken by virtue of a distress warrant for two quarters rent due upon a lease yet unexpired, stating the lease to be of one undivided moiety of a certain room [describing it] and of a right of common passage along an entry leading to and from said room and out through the yard to the public street.

Declaration, that on &c., at &c., in consideration that the plaintiff, at the special instance and request of the defendant, would sell and deliver to the firm of G. B. & J. L. Crane a certain bill of goods upon credit, amounting to the sum of $251,64, the defendant undertook and promised the plaintiff, without writing, that he [the defendant] would join the said firm in a promissory note for the price of said goods, the said firm to be makers thereof and the defendant to be…

Debt, tried at the New-York circuit, in July, 1842, before Kent, C. Judge. Held: however, that the plaintiffs were entitled to a verdict under the insimul computassent count, and instructed the jury to find accordingly, if they believed the evidence sustained the allegation of an accounting and promise to pay. The defendants’ counsel excepted. Other questions were raised at the trial which need not be noticed.

The action was on a promissory note made by the defendants below, payable to the order of and endorsed by T. S, Townsend. The note was discounted by the plaintiffs’ cashier at the city of New-York. The discount was made on the application- of one Hendrickson, an .endorsee, to whom the full amount of the note was paid by giving up an acceptance held by the bank against him and paying the balance in cash.

<p>Where a party fails in a motion because of some formal defect or insufficiency in his papers, he should ask leave to renew the application, or that it be denied without prejudice to another motion ; and if the request be granted, the fact should he stated in the rule. Per Bronson, J.</p> <p>A motion once denied cannot he renewed unless leave be first obtained from the court either at the time of the denial or afterwards.</p> <p>A motion for a commission to examine witnesses, though denied because of a formal defect in the papers, is no exception to the above rule.</p> <p>Where a motion for a commission was denied by the court on the ground of the . insufficiency of the affidavit, and an order was afterwards granted by a circuit judge allowing the commission, without any previous application having been made to the court for leave to renew ; held irregular, but under the special circumstances the commission was allowed to stand on payment of costs.</p> <p>The doctrine of res adjudicate does not strictly apply to motions in the course of practice, they being addressed to the discretionary power of the court. See note (a.)</p>

<p>Though, after the commencement of a suit, one party procure the testimony of £ witness to be perpetuated pursuant to 2 JR. S. 398, § 33 et eeq., no part of the' costs of the proceeding are taxable against the opposite party, whether the testimony be read at the trial or not.</p> <p>Otherwise, where testimony is taken conditionally pursuant to 2 R. S. 391, 2, and is read at the trial. Semble.</p>

Judgment on bond and warrant of attorney. The warrant of attorney bore date April 16th, 1841, and was executed by Cow-den, Boyd and the defendant St. John. The bond was joint and several. The substance of the warrant of attorney is stated in 3 Hill, 461. After the judgment there mentioned had been set aside, and on the 28th of April last, the plaintiffs entered another judgment by virtue of the bond and warrant against St. John alone.

On the 4th of February, 1843, John White recovered a judgment by default in the New-York G. P. for $3200, against Walter Skidmore, administrator de bonis non of Angus Shaw deceased. The administrator was afterwards cited to account before the surrogate of New-York, and show cause why an execution should not issue on the judgment. He appeared and admitted assets to $3024.

Re-taxation of costs. The defendant lent his promissory note to one Postley, which was discounted by the plaintiffs. This suit was commenced on the note in January 1837. On the first of April following, and after issue had been joined, Postley, without the knowledge of the defendant, paid the note to the plaintiffs, together with the costs of the suit. The plaintiffs nevertheless went on with the suit, and noticed it for trial at several circuits.

Dunham sued Simhitiiis before a justice; and recovered judgment, which was reversed by the common pleas on certiorari; This court reversed the judgment of the C; P;; ahd affifined that of the justice. Dunham included in the judgment record in this court $20 for his costs on the certibrari in the Ci P., and

<p>On a motion to change the venue from the county of O. to the county of C., the defendant’s affidavit stated that the action was brought to recover for services as attorney and counsel rendered by the plaintiff while he resided in the county of C., that the defendant had twenty witnesses in the latter county, and that if the plaintiff should claim to have more than one witness [naming him] in the county of O., the others could only be material for the purpose of proving the value of the services for which the action was brought, which might as well be proved by witnessess residing in the county of C. In opposition to the motion the plaintiff swore to twenty-five witnesses in the county of O., ten of whom were attorneys and counsellors at law, but omitted to answer the matters specially set forth in the defendant’s affidavit. Held, that the motion should be granted.</p>

The plaintiff having been nonsuited at the trial, the circuit jttdge made an order as follows: “ Let the plaintiff have twenty days to make and serve a bill of exceptions, and in the meantime let all proceedings on the part of the defendant he stayed.” .Afterwards, and before the twenty days had expired, the judge made another order in these words: “ Let the time to make and serve a bill of exceptions be further extended thirty days.” After the first order had expired, and…

<p>Though a cause was twice tried before referees, their first report having been set aside with a direction that the costs abide the event; held, that the prevailing party was not entitled to charge a brief for each trial.</p> <p>An attorney’s fee for each trial, however, is taxable in such case. Per Bronson, J.</p>

<p>Where a declaration in trover for divers bank notes and checks contained ISO counts and more than 10,000 folios, all the counts being alike except as to the time of the several conversions, and the plaintiff swore that he expected to prove ' as many distinct acts of conversion as there were counts; held, that the court would not order any of the counts stricken out, especially as the suit was com- • menced since the new fee bill of 1840. ,</p> <p>Semblej that in trover the plaintiff cannot give in evidence more than a single' act of conversion under any one count in the declaration.</p>

The defendants, Peck, Littlejohn and Fitzhugh, were sued in assumpsit as joint debtors. After issue joined, the defendant Fitzhugh, at the circuit, pleaded puis darrein continuance his discharge under the bankrupt act, which had been obtained a few days before; and the plea was duly verified. The defendants objected that the plaintiff could not proceed to trial; and the plaintiff answered that he did not intend to take issue upon the plea, but confessed the same to be true.

The cause was noticed for trial at the circuit, arid on Thursday of the first week the defendant moved to put off the trial until Saturday, on account of the absence of a witness who had been duly subpoenaed! The riiotion was granted by -the judge, on payment of the costs of the day. On Saturday the defendant was present and ready for trial; but the circuit judge am nounced that in consequence of ill health -he should try nó more causes at that circuit.

<p>Where the plaintiff applies for a change of venue, his notice of motion should be for leave to amend the declaration in that respect.</p> <p>But where the notice was of a motion to change the venue or for such, other rule or relief &c., and the affidavit plainly showed the object and necessity of the application; held that, under the clause asking for general relief, the plaintiff might have leave to amend his declaration by changing the venue.</p>

<p>The notice of bail in error required by 2 R. S. 597, § 34 must be given within ten days from the filing of the writ in the court to which it is directed.</p> <p>If the notice omit to state the additions of the sureties, it is ground for quashing the writ.</p> <p>But where the defendant in error moved to quash the writ because the notice failed to state the additions of the sureties, and it appeared that the defect was supplied by a new notice given after the ten days and after the motion papers were served; held, that the writ might be allowed to stand on payment of costs of the motion.</p> <p>The court from which a writ of error issues may order it to be quashed, though it has not been returned. Semble.</p>

<p>The court for the correction of errors will not allow the respondent in an appeal to move it as frivolous out of its regular order upon the calendar.</p> <p>In the supreme court, the party moving to bring on the argument of a demurrer or bill of exceptions as frivolous, is not allowed to argue the points raised. If an argument be necessary, the points are assumed to be of sufficient importance to entitle the case to retain its regular place upon the calendar. Per Nelson, Ch. J.</p>

On error from the supreme court. The Bank of Safina sued Henry and Pierce in the court below on a promissory note, and recovered judgment; whereupon the latter brought error. For the facts of the case, together with the opinion of the court below, see 1 Hill, 555 el seq.

On error from the supreme court. This case was decided at the same time with that of Henry and Pierce v. The Bank of Salina, {ante, p. 523.) The action was commenced in the court below by Hamilton White, now defendant in error, against Samuel S, Stevens, Hugh M. Walch, Caleb Gasper, Benjamin T. Stevens, and Hiram Clift, upon a promissory note. The note was made July 26th, 1839, payable six months after date to Clift or bearer, and was endorsed by him to White.

<p>Where the defendant obtains an order putting off the trial for the circuit on payment of costs, fees paid by tife plaintiff for exemplifications of records and official certificates to be used as evidence, are not taxable as a part of the costs due under the order.</p>

Costs. This was an action of replevin in which a verdict was rendered for the plaintiffs, and on the taxation of costs the commissioner allowed them the following items, viz. “ Counsel at last circuit opposing motion for putting off cause, $5,00; and attorney’s fee and brief on that motion, $6,00.” The defendant having objected to these items before the commissioner, now moved for a re-taxation.

<p>Pleading de novo after amendment of declaration. The action was on a promissory note made by Randall & Co., endorsed by M’Corniick, one of the firm. Plea, the general issue. Afterwards, the plaintiff, on motion, obtained a rule for leave to change the venue by amending his declaration. He served a copy of the rule, together with an amended declaration, and noticed the cause for trial and inquest. Within fourteen days from the time the amended declaration was served, the defendants pleaded de novo. Among other pleas thus interposed was one setting up a recovery on the note by the Towanda Bank against M’Corniick. The plaintiff' disregarded the new pleas, took an inquest on the issue previously joined, and entered up judgment.</p>

Case for negligence. After issue joined, the plaintiff obtained his discharge as a bankrupt under the late U. S. bankrupt act; whereupon a commissioner granted an order that the plaintiff file security for costs in twenty days <fcc., and that in the meantime all proceedings be stayed.

<p>Declarations or admissions of jurors made subsequent to the rendition of their verdict, are not admissible in support of a motion to set it aside.</p> <p>The affidavit of a juror cannot be received to impeach the verdict for mistake or error in respect to the merits, nor to prove irregularity or misconduct either on his own part or that of his fellows.</p>

Motion that the sheriff of Kings county be ordered to pay over to the plaintiffs the balance of moneys levied on two writs of ft. fa. against the defendant, one in favor' of Walsh & Mallory, received by the sheriff December 10th, 1842, and the other in favor of the plaintiffs, received the '28th of January following. The' balance sought to be thus reached was what would remain after deducting sufficient to pay the execution in favor of Walsh & Mallory.

A ft-fa. was issued in this cause and delivered to Stewart, a deputy sheriff of Brie' county, on the 22d of October, 1838.

In the first entitled cause the plaintiffs obtained a verdict for $3774,26, and judgment was thereupon entered on the 26th of July, 1843. Previously, on the 15th of the same month, the plaintiffs assigned the demand in suit to Elijah Ward in trust for the payment of their debts. The judgment in the second cause was in favor of the plaintiffs for $2411,67, and was perfected on the 14th of August, 1843.

Motion to set aside an execution. A fi. fa. in favor of the plaintiff was delivered to a deputy-sheriff of Oswego county on the 19th of June, 1840, endorsed with directions to levy and collect of the defendants the sum of $1146,68. ■ The deputy seized the household furniture of the defendant Beekman, together with some books, and the personal property of the defendant M’Whorter.

Ejectment. In this case an order was granted by Gridlev, C. Judge, staying proceedings until the plaintiffs’ attorney should produce his authority for commencing the suit. (2 M. iS. 305, §■ 17 et seq.) Pursuant to the order the plaintiffs’ attorney produced a power under seal authorizing him to commence the suit, purporting to have been executed by F. St. John, and acknowledged before J. C. Schwart, U. S. consul at Vienna.

<p>Error to the New-York C. P. Taylor, Thomas & Co., merchants in the city of New-York, sued Berly, surviving partner of the firm of Van Amburgh, Warren & Co., who had also been merchants in the city of New-York, and declared in assumpsit upon the common money counts. On the trial in the court below it appeared that Mrs. Alphonse Clifton had been carrying on business as a merchant in the city of Baltimore, and that, in the spring of 1841, she was indebted to the plaintiffs, to the house of Yan Amburgh, Warren & Co., of which the defendant was a member, and to several other houses in the city of New-York, for goods which she had previously purchased. Finding herself in failing circumstances and unable to pay all her debts, she sent several parcels of goods to her creditors in New-York, with the intent that they should receive the goods in part payment for their debts. In the deposition of Mrs. Clifton she testified that between the 25th of March and the first of April, 1841, she packed certain goods in paper boxes and directed them to the plaintiffs, New-York, and enclosed the same with other goods in a wooden case directed to Yan Amburgh, Warren & Co., New-York, and forwarded the same by the rail-road line to New-York. She wrote to the plaintiffs at the same time informing them of the shipment of the goods, but never received any answer. On the 16th of April, 1841, the defendant sold all the goods which had been sent to his house by Mrs. Clifton, and received the money for them. On the 15th of May following the plaintiffs demanded of the defendant the goods which- they alleged had been forwarded by Mrs. Clifton for them, offering to pay any expenses which the defendant might have incurred on those goods. The defendant admitted he had received goods from Mrs. Clifton, but denied that any of the goods in the box or case which had been sent were for the plaintiffs. The plaintiffs thereupon brought this action to recover the value of the goods which Mrs. Clifton testified were intended for them.</p> <p>The record stated that, after a motion for a nonsuit had been overruled, the jury, by consent of parties, found a verdict for the plaintiffs for $155, subject to the opinion of the court on a case to be made, with liberty to either party to turn the case into a bill of exceptions; that a case was thereupon made and argued at bar; that the court held the plaintiffs were entitled to recover, “ and thereupon the counsel for the said defendant did except to the said decision and opinion of the said court, and did elect to turn the said case into a bill of exceptions.” It was then added, that the court rendered judgment for the plaintiffs, “ to which the counsel for the defendant excepted, and tendered his bill of exceptions, which was signed according to law.” There was in fact, however, no signing or sealing by any body. The record concluded with a formal entry of judgment for the plaintiffs. The defendant brought error.</p>

Case, tried at the Yates circuit in November, 1841, before Mosel v, C. Judge. The defendant was sheriff of the county of Y ates, and this action was brought to recover damages for not collecting the amount of an execution issued in favor of the plaintiffs against John J. Kosenbury.

Covenant, tried before Kent, C. Judge, at the New-York circuit, in September 1841. On the 8th of August, 1836, the defendants by their deed conveyed to the plaintiffs a lot 30 feet by 120 in the city of Buffalo, with a covenant for “ peaceable possession” or quiet enjoyment. On that covenant the action was brought.

Paige brought an action on the case against Hazard and Kelley in a justice’s court, for injuring and sinking a canal boat belonging to the former, by negligently running against her with a raft.

<p>DemuRReR to plea-. The action was for false imprisonment; and the declaration alleged that the imprisonment took place at the town of Sharon in the county of Schoharie. The defendant pleaded .in justification that the imprisonment complained of consisted in the defeiidant’s causing the plaintiff to be" arrested-by one of the constables of the city and county of Albany, on a warrant under the 5th "section of the “Act to abolish imprisonment for debt” &e., (Sess. Laws of 1831, p. 397, 1 R. S. 808, 2d ed.,) issued by John Q,. Wilson, one of "the judges of the Albany county courts, of the degree of counsellor at law &c., and directed to the sheriff of the city and. county of Albany, or to any constable or marshal of said city and county. The plaintiff demurred to the plea, and the defendant joined in demurrer.</p>

Debt, tried' before Kent, C. Judge, at the New-York circuit in March,. 1843.' The plaintiff declared on two bonds made by the defendants, each in the penal sum of $4000, condition-ed to pay $2000. The defendants pleaded non est factum to each count, and gave notice of the defence of usury.

Assumpsit, tried at the New-York circuit in May, 1843, before Kent, C. Judge. The declaration contained the common counts for money lent and money had and received; and the case proved at the trial was substantially as follows: ■ In 1841, one Lewis L. Williams borrowed of James Mason^ the plaintiff, the sum of $3500,. for which Williams gave his notes and a bond and warrant of attorney to confess judgment.

An alternative writ of mandamus was granted on behalf of the relator, setting forth in substance that he was duly appointed clerk of the city of Brooklyn in May 1843, and took the oath of office; and that he had since applied to the defendant, who was the former clerk, for the books, papers and records appertaining to the office, but the deíéndant refused to deliver them.

<p>Where three successive letters of credit were written by the defendants to the same person, the second and third referring to the first and requesting that the amount of the credit and the time of its continuance should be enlarged; held that, as the first letter required the credit to be used by drafts at sixty days sight, this applied equally to the enlarged credit, though the other letters were silent on .the subject.</p> <p>A surety can only be charged where the case is brought within the precise terms of his contract. Per Bronson, J.</p> <p>Accordingly, where B., who resided in New-York, wrote to a firm in Liverpool,, desiring to open a credit with them in behalf of S., and promising that they should be reimbursed their advances, the credit to be negotiated in Rio de Janeiro, by drafts on the firm at sixty days sight; held, that B. stood in the relation of guarantor or surety, and that he could not be charged on account of drafts drawn at ninety days.</p> <p>Held further, that a third person who had advanced money on drafts drawn by S., in the form prescribed by the letter, and on the faith of it, could not maintain an action in his own name against B., though the firm at Liverpool refused to accept ; there being in such case no privity of.contract save between B. and the firm, S</p> <p>Letters of credit and commercial guaranties are not negotiable instruments. Per Bronson, J.</p> <p>Where a letter of credit is general, i. e., addressed to all persons, any one to whom it is presented may act upon and enforce it. Per Bronson, J.</p> <p>Otherwise, if the letter be addressed to a particular individual; for in such case he alone can acquire rights under it. Per Bronson, J.</p> <p>The cases of Russell v. Wiggin, (5 Law Reporter, 533, Story On Sills, 546, note, S. C.) and Carnegie v. Morrison, (2 Mete. Rep. 381,) commented on and doubted.</p> <p>A special verdict should find facts, and not leave them to be made out by argument and inference. Per Bronson, J.</p>

Demurrer to replication. The action was debt upon a bastardy bond taken by a justice of the peace in Broome county, before whom Abraham Greene was brought under a warrant issued in the county of Delaware, charging him with being the putative father.

Demurrer to rejoinder. The declaration was for trespass de bonis fyc. Plea, justifying the taking of the goods by way of distress for rent due the defendant upon a lease from him to one Yale, alleging that the goods were on the demised premises at the time of the distress.