Volume 5 — Johnson's New York Reports

THIS was an action for a libel. The declaration contained two counts.

THIS was an action of debt, on a judgment recover-7 jo ed in the court of common pleas of the county of Lenox # 1 r flzf- , , . --- m the state or Massachusetts, m April, 1801, for 118 1 if j , - rni i dollars and 40 cents. Inere was also a count on a mutuatus. The defendant pleaded nil debeU At the trial, the plaintiff produced an exemplification of the record of the judgment.

THIS was aü action of debt on a bond, for the penal ty. The bond was given by the defendants, to the plaintiff, as sheriff of the county of Washington, as se- . „ - ... „ , , Curity tor the liberties oí the gaol.

THIS was an action of ejectment for four lots of , , _ . , . . , r at, m > land, at 6oeymans, m the county or Albany. 1 he cause was tried before Mr. Chief Justice Kent, at the Albany circuit, in October, 180/.

THIS was an action of covenant. The declaration contained two counts. The first count was on a deed, dated 1st January, 1795, whereby the defendant, in consideration of 20,0001. conveyed to the plaintiff, 67,953 acres of land, and among which were two tracts in township No. 2. in the first range of townships in Ontario-; the one containing 3,360 acres and the other, 1,600 acres, both described by metes and bounds.

THIS was an action brought on the covenant of seisin7 in a deed, executed by the defendants, by their attorney, Anthony Maxwell, to the plaintiff. Plea, non est factum, fe?c. The letter of attorney was dated the first day of March, 1804.

- THIS was an action of ejectment, for lot No. 83. in i , i . r . me township of Cmcznnatus. The cause was tried at the Onondaga circuit, in September, 1808, before the chief justice.

THIS was an action of trespass quare clausum fregiiy. for entering the plaintiff’s close, and cutting down and carrying away trees,- &'c.- Plea, the general issue. The plaintiffs proved, at the trial, that the defendant cut wood on a lot called Byrne's lot. The grandfather and father of Albett Vari Loan, the younger, possessed the lot, and after them, Albert, the younger.

THIS was a suit on a lease, dated the 17th of No- - 7 At the trial, the lease was admitted, and the defendant ... , . gave in evidence several receipts of the plaintiff, indorsed , '■ on the counterpart ox the lease.

THIS was an action of covenant. The declaration contained two counts.

THIS was an action of covenant. The declaration stated, that by articles of agreement, under seal, dated the 9th of September, 180/, the plaintiff covenanted with the defendant to execute to him in fee, on the 15th May, then next, a warranty deed of a certain farm, &c* which farm was then in the possession of the plain-¿ff, and of which fames Van Valkenbercrh held a bond 7 v e *•* an¿ morto-ac-e which the plaintiff covenanted was not o o enforced; (z. e. foreclosed ;) and…

<p>A. died seised of ifindsj and the lieil's proceeded to obtain a partinon of the lands tinder the act; and the widow of JL- not apme'nt passed^default / ami 'in partition^aíeawasaSgnetílmd out^Ftheiands of her husband; and she was adjudged to pay SO dollars and 96 cents for her proportion of the expenses in making the par- ... tition; and the heirs afterwards issued a fieri facias-, and sold the dower of the widow at auction, to pay the costs so adjudged ; it was held, that the proceedings under the act for the partition were null and void, as against the widow’s claim for dower; that she was not a tenant, nor did her rights come within the purview of1 the act; that she was not bound to appear and plead, nor eould her rights be affected by the judgment in partition ; and that the conduct of the heirs in selling her dower to pay the costs was improper and unwarrantable*</p>

THIS was an action of trespass quare clausum fres'it, . , , . 1 Y / for cutting down and carrying away pme timber from , , the land oí the plaintiffs. 1 he cause was tried at the last Oneida circuit, before Mr. Justice Tates. At the trial, the plaintiff’s counsel produced a perfect title to Abraham Franklin?

THIS was an action of assumpsit for money had and received to the use of the plaintiff; and for work and la-hour performed, money lent, &c. Plea, non assumpsit, The cause was tried at the Oneida circuit, in Yune, 1809, ' J ' ’ before Mr. Justice Yates.

THIS was an action of debt, against the defendant, as sheriff of the county of Oneida, for the escape of Abel Brigham, charged in execution, at the suit of the plaintiff.

<p>. a resident in Maryland, was indebte d to M. and C. co* partners in ’ trade, on a book account. B. and their partneríraiuabie^onsig„edaii histn^^er&ipprol,,ert>> including ^ ditor of attached the debí; due from A. in suantto the laws whicif pZmdf’a creditor0™1 at-an"?creditsofa non-resident debtor. After the attachment was laid in Maryland, a suit was brought in this court by B. and C. against A. for the same debt; it was held that the attachment pending in Maryland, at the suit of B. was pleadable in abatement to the suit here.</p>

THIS was an action of debt, on an arbitration bond, 7 7 in the penal sum of 1,000 dollars. The declaration was 1 7 in the usual form.

ON certiorari, from a justice’s court. Van Vleet brought an action of debt against Thayer, -before the justice, for having an execution, as a constable, in favour of the plaintiff against one John Ralye, 'and neglecting to execute it, according to law.

THIS was an action for an assault and battery and J false imprisonment. The declaration was in the usual 1 form. The defendant, Lee, pleaded two pleas : 1.

THIS was an action on the case. The declaration stated, that an action of ejectment was commenced in this court, in November term, 1806, by the plaintiff, on the demise of Christopher Humphrey, against John Stiles; and that one Oliver Brown, the tenant in possession, appeared and was made defendant, in the place of the casual ejector, and entered into the usual consent rule.

THIS cause came before the court, on a writ of error from the court of common pleas of the county of Cayuga. The declaration in the suit below was on a promissory note drawn by O’Callaghan, dated the 29th March, 1803, and payable to Moses Sawyer, or bearer, on or before the 1st September following, for 22 dollars and SO cents, with interest. The payee, on the 10th March, 1808, the note and interest being unpaid, indorsed the note to the plaintiff, in a fair course of trade.

ON certiorari from a justice’s court. Galbraith sued . Nezuton before the justice, on two promissory notes, signed by Newton; the one for 10 dollars, payable on the 11 tli of December, 1807, in produce, to be delivered at Newton's house ; and the other for 10 dollars, payable on the 11th December, 1808, in produce, to be delivered at Nevoton's house, in Jericho.

THIS was an action of covenant. The declaration set forth a deed from the defendant to the plaintiff, dated the 17th December, 1806, for certain lands, in the county of Onondaga, in which, among… Held: pos J sessed and enjoyed, by the proprietors and claimants of the Great or Hardenbergh patent, &c. and so the plaintiff says, &c. There was a demurrer to the declaration and joinder.

ON certiorari, from a justice’s court. • Weaver sued Picket, before the justice, as well for ^le overseers of the poor of the town of Pharsalia, as f°r himself, and declared against Picket, that he did, on t^le 18t^ January, 1809, in the house of Daniel Picket jn tjle saj¿ town, sell to Daniel Kinney, and receive Pay for °ne^laf pint of whiskey, which was there drank in that house, then occupied by the defendant, without .... having such license, or entering into such…

THIS was an action of trespass quare domum fregit, &c. The defendant pleaded the general issue, and subjoined a notice of special matter, to be given in evidence at the trial, as follows : That before the time of committing the supposed trespass, to wit, &c. Isaac Terry, esq. a justice of the peace, &c. at the request of Joseph Williams, &c. pursuant to the act, &c. issued his -warrant, under his hand, directed to any constable of the town of Sangersjleld, commanding him, in…

<p>Ce„¡°.,)u^vcs3^g’^doefnot ap' Pb' ,t0 t,ie case ota let yon personal property made by an officer, under^ a nature of an ex-oculion. An actkm on the case lies a«-ainst a. sheriff* constafiler,^for^maiL ting^n-ocess^in an oppressive and unreasonable manner, with intent to vex, harass and oppress the party. Where a constable having a warrant against Jl. for a military fine, refused to take property tendered by Jl. but took and sold his horse, with the avowed intent of hurting the teelings of and otherwise vexing him, he was held liable to an action on the case, at the suit of *2.</p>

THIS was an action oi ejectment. I he cause was trjeq at tjle Oneida, circuit, the 5th June, 1809, before Mr. Justice Tates. At the trial, it was proved, that the lessor of the plaintiff, by his attorney, duly authorised for that purpose, on the 1st April. 1803, executed a lease of the 1 1 1 ’ ’ premises in question to the defendants, for three years* ending on the 1st April, 1806.

<p>Wliete, in an Justice, ^thode^former action beforíttií ^ ^e^the his, demand; and the only evidence of the former action was a statement by the justice to the jury, to which the plaintiff did not object; it was held, that, although the statement of the justice was no legal evidence, yet, as the plaintiff did not object* h$ was concluded by it* and that the former suit was a bar to the plaintiff in this suit»</p>

THIS was an action of debt. The declaration stated, that at a county court, held at Danbury, in the state of Connecticut, on the third Tuesday of November, 1799, the plaintiff as survivor of, Etc. recovered against the defendant, 1617 dollars and 19 cents, of debt, and 14 dollars and 50 cents, of costs, as by the record thereof appears, and that the judgment remained in full force, See, whereby an action had accrued, Etc. The defendant pleaded, 1. Nil debet. 2.

THIS was an action of debt. The declaration was on a penal bond, given by the defendants to the plaintiff, as sheriff of the county of Washington, pursuant to the act relative to gaol liberties. The defendants pleaded a performance of the condition of the bond. The plaintiff replied an escape. The venire was made returnable at the city-hall, of the city of Albany, on the first Monday of August, 1809, and was served by the plaintiff himself, as sheriff.

THE facts in this case were as follows : The plaintiff commenced an action of assault and battery and false imprisonment, against the defendant, in 1805. The cause came on to trial, in June, 1807, when the plaintiff, by the direction of the judge, was nonsuited. A case was prepared on the part of the plaintiff, and argued in November term, 1808, and a judgment in favour of the defendant, was rendered in Februanj term, 1809.

THIS was an action of trespass quare clausum fregit. The defendants pleaded severally, not guilty. The cause was tried before Mr. Justice Thompson, at the Montgomery circuit, in May, 1808.

this was an action of ejectment, for land in the » , r y-, township of Marcellus, m the county of Onondaga. The cause was tried at the Onondaga circuit, before Mr. Justice Thompson. At the trial, the plaintiff’s counsel produced in evideuce, letters patent from the state of New-Tork to John Lepherd, a soldier, in the army of the United States, for lot No, 2. in Marcellus, including the pre- ° 1 mises in question.

THIS was an action of ejectment, brought to recover u u . . the third part of a farm in the possession of the defend-1 ants, in the town of Canaan, in the county of Columbia. . _ . . . The cause was tried at the Columbia circuit, m October$ ,,, _ . rr 1807, before Mr. Justice Van Mess.

THIS was an action of assumpsit, on a joint and several promissory note, made by Sarah Nelson, while a feme sole, now the wife of the defendant Thompson, and j,y Joseph Nelson, the other defendant. The declaration was jn foe usual form. The defendants pleaded non assumpsit, and ne unques accouple, in lawful matrimony, The cause was tried at the Albany circuit, in October, _ . . . . _ , 1808, before Mr. Justice Spencer.

THERE were several cross motions in these causes, which were submitted to the court, without argument. The first motion was on the part of the defendant, and John Coates, as assignee of the plaintiff, Williams, to set aside the test. fi. fa. issued in the last cause, with J J 7 costs; and also, that the overplus moneys in the hands 1 1 J of the sheriff, on the test. fi. fa. in the first cause, should J J be paid to Coates.

THIS was an action of debt) on a bond executed bif , , _ „ the defendants, dated the 18th day of September, 1807* - . „ ror the penal sum of 2)500 dollars. The defendants pleaded Jive pleas: 1. Non est factum* 2.

ON certiorari from a justice’s court. Harris sued Almy in the court below, in ail action on the case, for disturbing him in the enjoyment of a ferry across the Cayuga lake, at the village of Cayuga, granted to Harris, by the courts of common pleas, for the counties of Cayuga and Seneca. A judgment for damages was given in favour of Harris, on which the certiorari was brought to this court. Several errors were assigned ; but it will be sufficient to state the opinion of court.

THIS cause came before the court, on a writ of error, from the court of'common pleas of Ulster county. The plaintiff sued the defendants below, in an action of assumpsit. The declaration was for goods sold and delivered, money lent, and money had and received tor the use °f the plaintiff; and on an inshnul computassent.■ rpjle defendants pleaded non assumpsit.

<p>Jl. covenanted to convey, by a good and sufficient deed, a certain lot of land to B. on or before a certain day, and B. covenanted to re-convey the same to Jl. by a mortgage, at the same time, as security, and also to execute a bond for the consideration money: B. after-wards brought his action of covenant against vj. - and in his declaration averved, that he was, at the time, and always had been, ready to execute the mortgage and bond, Sec. It was held, that the covenants were mutual and dependent; that the averment of readiness to perform by the plaintiff was sufficient; and that, fr.-m the nature of the covenant, he was not bound to seal and tender the mortgage, before vx. had conveyed the land to^ him, or had ottered a coa« veyance.</p>

THIS cause came before the court, on a writ of error from the court of common pleas of Washington county The plaintiff brought an action on the case for an escape. 1 ° . in the court below. The declaration set forth, that one . . _ ’ .

THIS was an action for slander. The declaration contained two counts.

<p>Where A. gave to 7>\ a receipt for lumber, to the amount of .475 dollars, if it held out on inspection, which sum was to be paid on a bond and mortgage from B. to A. and />. assigned over the receipt to C. and a suit was brought in the name of JÍ. against A: for the lumber, as for goods sold and delivered; of , this assignment notice was gr en to A> who admitted that he had sold and assigned the bond and inort* gage referred to in the receipt,to D hut that he could get the indorsement made on the bond. It was held, that as A. had not shown that the indorsement had actually been made on the bonds agreeably to the stipulation in the receipt, and the parlies by their acts having waived the specific appropriation of the amount of the lumber to the payment of the bond, M. might maintain his action aguinstvl for the lumber, as for goods sold and delivered.</p>

<p>in an action on the case, brought by a husband against the father'of his -wife, for enticing her away, &c. it was held that the action would lie, but that the jury, to justify a verdict for the plaintiff, should hatbt much stronger evidence of malicious and improper motives in the defendant, than where the action was against a stranger ; the presumption being-in favour of the defendant, that he was actuated in his conduct, in taking his daughter home, by parental affection ; and on the ground, that the judge and jury had not sufficiently considered the distinction between this and an ordinary suit by the husband against a stranger, and from the peculiar circumstances of the case, as will as the amount of the verdict, a new trial was granted-</p>

THIS was an action for a libel* The declaration contained two counts, one for writing, composing and pub- . . hshmg, and the other for… Held: the office of recorder of the city of Albany, in the county of Albany, and had, at an election held in and for the city and county aforesaid? to wit, on the last Tuesday of April, in the year of our Lord one thousand eight hundred and five, been duly v # v elected a member of the assembly in the legislature of , the said state, in…

<p>Where a cause is removed from the court of common pleas into this court, by habeas corpus, the plaintiff cannot, as in ordinary cases, enter a rule to plead in this court, and after 40 days file bail for the defendant, according to the statute; but must enter a rule for the appearance of the defendant in this court, or that a procedendo issue; and if an appearance is not entered in 20 days, take out a procedeudo.</p>

<p>In notices ef Sc.eSone (layáis other'^cS partyt0th‘Je full number of days.</p>

<p>A wr'»t jiiutie returnsbie 66 be^otiiy! be a"</p>

<p>a judge of a mon'1 visas "nay tokebe"readaTii tins conn, jn Fiy county,</p>

<p>Special picas t™rounsci°nia tided, for b/the coin, tLpraclowee$"'</p>

<p>Before an attachment issues' against a sheriff, the proceedings áre to he entitled iuthe names of the parties in the suit; but after the granting of the attachment, the proceedings must be entitled in the name of the people.</p>

THE prisoner was indicted and convicted at the last . oyer and terminery in the county of Orange, for forging an order for the delivery of goods, as follows : “ Mr. Servará. Sir, Let the bearer trade thirteen dollars, twenty-five cents, and you will much oblige yours, &c« August 16, 1809.

THE prisoner was indicted, tried and convicted, at the last oyer and terminer held in Orange county, for forging a note for the payment of money, in the words following, to wit: “ Due Jacob Finch, 1 dollar on settlement this day, February 7th, 1809. David KnirhtP JJ 1 a Judgment was respited, and the prisoner being brought up on a habeas corpus, it was moved in arrest of judgment, that the forged paper was not a note for the payment of money, within the statute.

THIS was an action of assumpsit brought by the , - . . plaintiff, as the first endorser oí a promissory note, against the defendant, as maker. The note was as follows: “ Petersburg, (Virginia,) August 27,1807. Four months after date, I promise to pay Hopkins Robertson or or-1 r r j r der, the sum of seven hundred and nineteen dollars, . 12 1-2 cents, witness my hand and seal» Payable m New-Tork.

THIS was an action of assumpsit, by the first endorsee of a promissory note against the first endorsor.

A MOTION was made in behalf of the plaintiff, to set aside the execution in this cause, issued in favour of the defendant, the taxation of costs, and the judgment, so far as it relates to costs, with costs to be paid by the defendant.

<p>THE plaintiff, as sheriff, claimed his poundage on a ca. sa. issued in favour of Edward Durant and Joseph Roberts, against Barzilla Worth. The plaintiffs in that executi°n were non-residents j and the present defendanf Was their attorney. Worth was arrested oii the ca. sa. , and detained in custody, until discharged under the act ^ tjle relief of debtors, with respect to the imprisonment of their persons.</p> <p>Two questions were raised for the consideration of the court; 1. Whether the sheriff was entitled to pound? age; and,</p> <p>2. If he is, whether he can call on the'present defendant for payment.</p>

THIS was an action of debt against the defendant, as sheriff of the county of Oneida, for the escape of . Abel Brigham, in his custody, on a ca. sa. at the suit of the plaintiff.

<p>A. demised, a house to B. for one year, and in timCpa^nen™of ceuteTa biueof ture °goods™' in the house, on condition to be void on payment of the rent, provided, that it did not impair A’s. rightto distrain. After a quarter’s rent became due, B. removed part of the goods and sold them to C. for a valuable consideration, hut with intent to defeat the security of A. It was held, that the bill of sale of the goods was a mortgage, and that the possession of the mortgagor, being consistent, with the face of the deed, there was no evidence of fraud. Possession ofgoodsbylhe vendor, after sale, is only prima facie evidence of fraud.</p>

<p>THIS was an insurance on goods, from Amsterdam to « 7 New-Tork ; and a verdict was taken for the plaintiff by L J consent, for 151 dollars and 45 cents, subject to the ^ opinion of the- court on the following case:</p> <p>On the 31st May, 1805, 32 bales of merchandise, of the value of 2,134 dollars, were shipped at Amsterdam, on hoard the ship Ocean, for New-Tork, for the plaintiff. The goods belonged to the plaintiff, and were duly ° °.c J documented. The ship during the voyage, on the 1st of 1 6 J ° . September, 1808, was met by a British ship, and sent to Halifax, The ship and the goods were libelled in the admiralty court there. The ship was acquitted on the 20th November, 1805, and restored; but the goods 0f the plaintiff were detained for further proof. The 1 _ 1 master of the ship made a tender of the ship to bring on x , 10 the goods ; but being so detained, they could not be sent. The ship sailed without the goods, and arrived at New-Tork. The agent of the ship interposed a claim for full freight of the goods; and they were released in May, 1806, and restored, on condition of paying a proportional part of the costs of the libel; and of paying to the ship-owner, the full freight from Amsterdam to Nexv-Tork, as stipulated in the bill of lading. The costs and freight were paid before the delivery of the goods to the plaintiff. The goods were brought to Nexv-Tork in another ship, under a charge of 141 dollars and 55 cents, for additional freight. The plaintiff did not abandon to the defendants, but claimed a reimbursement for the payment of the proportional part of the expenses of the libel, and of the freight from Halifax to Nexv-Tork. The defendants paid the expenses, but refused to pay the freight ; and to recover it, the present suit was brought. The plaintiff claimed the freight, as a charge or expense incurred by reason of the capture and detention of the goods insured ; and as so much paid under the clause allowing the assured to labour, &c. for the safety of the property.</p> <p>It was agreed that the policy was in the usual form, and that the ship Ocean was a general ship, and had on board other goods besides those of the plaintiff.</p>

THIS action was brought against the defendant ■ as ^rst endorsee of a promissory note, dated 24th November, 1807, made by John Jackson, for 933 dollars and 40 cents, payable to Brannan or order, sixty days after date, and endorsed by him to Isaac Riley, and by Riley to Samuel Hunter, and by him to the plaintiff. The de fendant pleaded, 1.

<p>A. enured en land belonging to B. and withíedge’or anthomade improve’lmT(hág~erec&c B. afterwards, agreed by parol with A (against brought an acd tt>0 ,reeoverrathe beSSwouid^thaii the land to a. as Wild land, or pay him for the improvements be had made. _twas ie_t, that though the promise to sell was clearly void by the statute of frauds, yet the promise to pay for the improvements made on the land was not within the stapromts? to pay work pro for the done, and improvements made, without tiie request of ... B. was a nudumpactum, on which no action could he maintained. There is neither a legal nor. moral obligation on the owner of land to pay for the work and labour done upon it, by one who has entered without his consent, or any colour of right,and held the possession against</p>

THIS was an action of ejectment, for part of lot no. 65. in the township of Milton. There were five defendants, who entered into the consent rule jointly, and pleaded jointly. The case was tried at the Cayuga circuit, the 16th June, 1809, before Mr. Justice Van Ness. Two of the lessors of the plaintiff, proved title to the premises in question, and that the defendants were in possession, in separate and distinct parts, but not jointly.

<p>THIS was an action, of debt, brought against the defendant, (who is chancellor of the state,) to recover the penalty of 1,250 dollars, under the fifth section of thehabeas corpus act, which declares, u that no person who shall be set at large upon any habeas corpus shall be again imprisoned for the same offence, unless by the legal order or process of the court wherein he is bound by recognisance to appear, or other court having jurisdiction of the cause ; and that if any person shall knowingly, contrary to this act, recommit or imprison, or cause to be recommitted or imprisoned, for the same of-fence, or pretended offence, any person so set at large, or shall knowingly aid or assist therein, he shall forfeit to the party aggrieved 1,250 dollars, any colourable pretence or variation in the warrant of commitment notwithstanding.”</p> <p>The declaration stated, that on the 18th August, 1808, the plaintiff was arrested by the sheriff of Albany, by virtue of a writ of attachment issued out of the court of chancery, &c. that so being arrested and in custody of the said sheriff, and not been convict or in execution, by legal process or commitment for high treason, &c. the plaintiff, afterwards, to wit, on the 18th August, in vacation' term, sued out a habeas corpus, under the seal of the supreme court, which was allowed, according to the statute, by the hon. Ambrose Spencer, one of the justices of the supreme court, &c. and that on the 19th August, he was, by virtue of the said writ of habeas corpus, brought before Mr. Justice Spencer, at, &c. who, upon the return of the said writ, ordered the plaintiff to be discharged, and set at large, &c. and the said sheriff accordingly set at liberty and discharged the plaintiff, &c. Nevertheless the defendant, well knowing the premises, and not regarding the statute, &c. afterwards, on the 12th September, 1808, knowingly, wrongfully, and contrary to the statute aforesaid, did cause the plaintiff to be recommitted and imprisoned for the same offence set forth in the said process or writ of attachment, by colour or pretence of a certain order, bearing date the 5th September, 1808, made by the defendant, &c. and did cause the plaintiff to be wrongfully and unlawfully recommitted and imprisoned by the sheriff of Albany, for a long time, to wit, for the space of 48 hours, and which order was not the legal order or process of any court wherein the plaintiff was bound by recognisance to appear, nor of any court having jurisdiction of the cause. By reason whereof, &c.</p> <p>The defendant pleaded, “ that on the 13th day of June, 1808, and for a long time before, he, the said John Lansing; jun. was, and ever since has been, and still is, chancellor of this state, to wit, &c. and that he¿ as chancellor of this state, and not otherwise, at a court of chancery of this state, at, &c. on the 13th June.; 1808, as it was right and lawful for him, as chancellor aforesaid, to do, made an order, of the tenor and effect following, &c. (Here the order was set forth.) And the said John Lansing, jun» further says, that he, as chancellor of the state, and not otherwise, on the 17th August; 1808, at, &c. caused a writ of attachment to be issued against the said J. V. N. Tates, out of the said court of chancery, under the seal of the said court, in the words following ; (here was set forth the writ of attachment;) and caused the said writ of attachment on the day and year last aforesaid, to be delivered to thei sheriff of the city and county of Albany, to be executed according to law, as it was right and lawful for him the said John Lansing, jun. as chancellor of this state, to do, which writ of attachment and order are the same writ of attachment, or the order recited therein, mentioned in the declaration of the said J. F. JV. Tates, and not other or different; and that the said J. V. N. Tates was, under and by virtue of the said writ of attach-» ment, imprisoned by the sheriff of the city and county of Albany, as the said J. V. N. Tates in his said declaration hath alleged, and as, &c. and the said John Lansing, jun. further says, that true it is, that the writ of habeas corpus, mentioned in the said declaration, was sued out, prosecuted, allowed, signed, endorsed and delivered, &c. and that in obedience to the command of the said writ of habeas corpus, the said sheriff had the body of the said J. V. N. Tates before Ambrose Spenser, Esq. one of the justices, &c. with the said writ of habeas corpus, and did certify and return, &c. And the said justice did, thereupon, order and direct, that the said sheriff should set at large the said J. F. N~. Tates of and from the caption and detention by pretext of the said writ of attachment, and that the said sheriff, in obedience to the said order and direction, did set at liberty and discharge the said J. V'. N. Tates, &c. But he the said John Lansing, jun. says, that he, as chancellor of this state, and not otherwise', at a court of chancery, held, &c. on the 5th September, 1808, as it was right and lawful for him, as chancellor of this state, to do, made an order to the tenor and effect following; (here the order was set forth ;) which is the same order for recommitment in the declaration of the said J. V. N. Tates above mentioned, and not other or different. And the said John Lansing, jun. further says, that the said order was, on the, &c. delivered by his command, as chancellor aforesaid, to the sheriff of, See. and the said sheriff, undey and by virtue of the said order, to wit, on the 12th day of September aforesaid, took and imprisoned the said J. V. N. Tates, as it was right and lawful, and the duty of the said sheriff to do, which is the same recaption and imprisonment set forth in the declaration of the said J. V. N. Tates, and not other or different, and this he is ready to .verify, wherefore he prays judgment, &c. To this plea there was a general demurrer and joinder. (For the proceedings on the attachment and habeas corpus, mentioned in the declaration and plea, see 4 Johns. Rep. 317.)</p> <p>At the last term—(Tuesday, November 14th.)</p>

THIS was an action on a valued policy of insurance, dated the 4th November, 1807, on the American ship Rover, on a voyage at and from New-York, to Wilmington, North Carolina, and at and from thence to Dublin, and at and from thence to Nexu-York. A verdict was taken by consent, for the plaintiff, for 10,651 dollars and 39 cents, subject to the opinion of the court on the following case.

THIS was an action on a policy of insurance, dated the 18th December, 1807, on the ship Manchester, at and New-York to Havanna, valued at 10,000 dollars, warranted not to abandon, if detained or captured,, until af^er a detention of six months. The cause was tried , » before Mr. Justice Spencer, at the New-York sittings, J /. ei . r the 7th * June, 1809.

<p>THIS was an action on the case. The declaration contained three counts. The first count stated, that the plaintiffs were managers of a certain lottery, allowed and established by the legislature of the state of Connecticut, . , _ O , . , m May, 1804-, &c. (describing the name and object of the lottery 5) that the plaintiffs, on the 16th June, 1806, were possessed of a large number of tickets in the third class of the said lottery, which was legally established by the plaintiffs, as managers; and according to the scheme of the said lottery, the price of the tickets was four dollars each, at which price all the tickets in that class were sold; and the plaintiffs averred, that the tickets were well worth four dollars each, &c. and that on; &c, the plaintiffs at Poughkeepsie, in the county of Dutchess, delivered to the defendant, at his special instance and request, 112 tickets, in the third class of the said lottery, from number 375, to number 469, inclusive, to sell for the said plaintiffs at four dollars, on a commission of 2 1-2 per cent, and to return those tickets to the plaintiffs, on demand, which the defendant should not sell and that the defendant then and there received the said 112 tickets of the plaintiffs, and in consideration thereof, and of the sum of 2 1-2 per cent, on the amount of those tickets which the defendant should sell, the defendant, undertook, and to the plaintiffs promised, to sell the said tickets for the plaintiffs, if the same should be saleable, at four dollars each, and to return those of the said tickets to the plaintiffs, which the defendant should not sell; and the plaintiffs averred, that the defendant undertook, and promised to return the tickets not sold, in a reasonable time, on demand, &c.</p> <p>The second count stated, that the plaintiffs being in possession of 112 tickets, in the third class of a certain lottery, &c. on the 16th June, 1804, at Poughkeepsie, and at the special instance and request of the defendant, delivered to him the said 112 tickets, to be sold, &c. and the defendant, in consideration, &c. undertook to sell the tickets, at four dollars each, and to return to the plaintiffs, in k reasonable time, on demand, such of the tickets as were not sold, retaining his commission, &c.</p> <p>The third count, was for money had and received, to the plaintiffs’ use*</p> <p>Plea, the general issue*</p> <p>The cause was tried at the Dutchess circuit, in' August, 1807. At the trial, the plaintiffs proved, that they were appointed managers of the lottery in question, and that the price of the tickets in the third class, were four dollars each. The drawing commenced about the 21st April, 1807, and was finished about the 1st July, following. About the time of the commencement of the drawing, a number of persons, associated together for the purpose, purchased of the managers all the tickets then on hand and unsold, at four dollars each, with the usual deduction of 2 1-2 percent, the number of which tickets so purchased did not appear. The scheme of the lottery, as established, was also proved.</p> <p>The plaintiffs then offered the following letter of the defendant, to Hunt, one of the plaintiffs, which was objected to, but admitted by the judge.</p> <p>“ Red Hook Landing, Sept. 7, 1807.</p> <p>“ Sir,</p> <p>u On the 24th April last, a letter was handed to me, which was directed to Knickerbacker and Hamlin, giving notice that the Canaan lottery, was to commence drawing on the 21st April, and requesting the tickets unsold, to be returned by mail; but as you hold my receipt for the tickets you left with me, I could not with propriety send them, unless I had my receipt, or a letter directed to me. I however, seeing that the lottery had, three days since, commenced drawing, immediately put up the tickets, and wrote you, but there has no letter come since. I was told that you made a practice of calling on those with whom you left tickets, and that you would no doubt call on me, and furnish a list of prizes. I should be glad if you would, soon call or send.”</p> <p>The plaintiffs also produced and proved, the act of the legislature of the state of Connecticut, authorizing thg lottery, and appointing the plaintiffs as managers, who were required to give a bond as security, and to take an oath for the faithful discharge of their trust; but whether they had given the bond, or taken the oath, did not appear.</p> <p>In April, 1808, Canfield, one of the plaintiffs, called on the defendant, and demanded payment for all the tickets, which the defendant refused. The defendant offered to return the tickets unsold, being 21 or 22, which Canfield refused to accept. The defendant admitted that he had received a letter from Hunt, one of the plaintiffs, addressed to Knickerbacker and Hamlin, which letter was produced, and is as follows ;</p> <p>“ Canaan, 17th April, 1807.</p> <p>M Gentlemen,</p> <p>u You are requested to return what tickets of the third ..class of the Qanaan lottery, by the mail this week, as are unsold's as the lottery begins drawing on Tuesday,, the 21st instant.”</p> <p>It was proved, that on the receipt of this letter,. Knickerbocker,, requested one Davis to inform the plaintiffs, that the tickets were not sold, and that he was ready to deliver them at any time when" they should send him. the receipt given for the tickets.</p> <p>The judge charged the jury, that under the circum-. stances of the case, the letter written and sent by Hunt, to Knickerbocker and Hamlin,, was a sufficient request, to render it obligatory on the defendant, to return the tickets by mail; that as he had not done so, he had made himself liable, in this action, for the whole number of tickets ; and that the plaintiffs were entitled to recover for the 112 tickets, at four dollars each, with interest, after the time when the. prizes in the lottery were payable, deducting the commission of 2 1-2 per cent, and the jury found a verdict^accordingly.</p> <p>It was agreed, that if the court should be of opinion, that the plaintiffs cannot recover in this form of action; or because the contract was illegal, then a nonsuit was to be entered ; but if the court should be of opinion that the jury were misdirected, then a new trial was to be granted. '</p>

THIS was an action of trover, brought to try the right of the plaintiffs to 75 hhds. sugar, marked B. E. which had been levied on by the defendant, as the pro•perty of Henry Cheriot, under a Ji. fa. in favour of William Fan Wyck, against Cheriot. A verdict was taken for the plaintiffs, subject to the opinion of the court, on the following case.

IN error, on certiorari from a justice’s court. 7 J Tinkom was sued in the court below, for a trespass. It 1 e appeared that he was a constable, and had an execution against the defendants, on which he took certain blacksmith’s tools, which were advertised for sale, at auction, at a particular time and place ; on the day of sale, and after two bids were made, one of the bidders, who had bid 12 dollars, refused to bid more, until he saw the tools.

IN error, on certiorari. After the jury, before the justice, came into court with their verdict, the plaintiff withdrew, and did not again appear. The justice proceeded to take the verdict, which was for the defendant, and gave judgment accordingly.

IN error, on certiorari. The defendant in error brought an action, by a summons, against the plaintiffs in error, who are a corporate body, for goods sold and delivered, work and labour, &c. The plaintiffs in error appeared by attorney, and went to trial on the merits of the case ; and the justice gavé judgment against them.

<p>ON certiorari, from a justice’s court. Lee sued the plaintiffs in error, in the court below, for a tresnass, in _ taking and carrying away a quantity of shingles, and stuff for making shingles. Lee had cut down the timber °f which the shingles were made, on land belonging to R0lert £. Boxvne. Robert L. Boxvne. An action of trespass was brought ^7 Boxvne against Lee, for cutting down the trees ; and the attorney of Boxvne discontinued the suit, on the defendant’s paying thirty dollars.^ It was proved that the attorney, who settled the suit in behalf of Boxvne, had said) that in compromising several suits, for this and other trespasses of the same kind, he had charged as r 1 ° much to those who had not carried off the timber cut down, as to those who had carried away what they had cut; and that those who had not taken off the timber cut down, would have as much right to carry it away, as those who had done so, before the settlement of the suits.^</p> <p>The land on which the timber was cut down, and. the shingles made, was conveyed by Boxvne to the plain-. . 6 ’ , . e * . . , , tiffs m error; and at the time ol executing the deed, a power of attorney from Boxvne to the plaintiffs in error, was a^so executed, authorizing them to sue all persons, in the name of Boxvne, for trespasses, before that time 3 r committed, in cutting timber on the land. It was proved that the deed and power of attorney were executed prior to the suit brought by Botone, and settled in the manner above stated. The plaintiffs in error, as owners of the land, claimed the timber cut down, and prepared for making shingles, as well as the shingles not taken away by Lee, prior to the said suit, and prohibited him from taking them ; and converted them to their own us*-. The jury foxmd a verdict for Lee, the plaintiff belew, for twenty-five dollars, on which the justice gave judgment.</p> <p>The question was, whose property were the shingles, and timber cut down, after the settlement of the suit, brought by Bowne against Lee for cutting down the trees.</p>

APPLICATION was made in this cause, in behalf of the justice, for leave to amend his return, on an afhclavit, stating a gross imposition on the justice, in making ^ out- The cause had been noticed for argument, at / # . the present term, and no notice had been given of this 1 motion»

IN error, on certiorari. The plaintiff in error was sued, as a justice, by the defendant, for his fees, as a witness, in a suit before1 him as justly and which were included in the amount of costs recovered of the defend- . e ant, and had been received by the plaintiff in error, Judgment was given for the plaintiff below,

IN error, on certiorari. The defendant below pleaded a former judgment in bar, and on the trial, the justice (who was the same justice before whom the former trial between the same parties was had) gave parol evidence of his own record, though the plaintiffs objected to such evidence.

IN error, on certiorari. The defendant in error let out part of his house, and reserved an inner room for himself, which he occupied. The plaintiff in error, who is a constable, having a warrant against the defendant in error, the outer door of the house being open, broke open the door of the inner room, and arrested him. An action of trespass was brought against the constable, before the justice, who gave j udgment for the plaintiff.

IN error, on certiorari. Grosfent brought an action against Taft, before a justice, and after issue joined between the parties, the justice adjourned the trial of the cause until 10 o’clock in the forenoon of the 21st November• Taft appeared at the hour and place appointed, and being told that the justice could not come until 12, waited near three hours, and finding the justice did not attend, he went away ; and afterwards, just before one o’clock P. M. the justice came, and…

IN error, on certiorari. Goodrich brought his ac- ° tion against Smith, before a justice, on a warranty to . - recover damages for some salt, purchased of Smith, which was alleged to be adulterated and bad. At the - trial of the cause, Goodrich appeared in proper person, and Smith by his attorney, who was admitted to defend the cause j but the justice, in his return to the certiorari, did not state the reason for admitting the defendant to appear by attorney.

IN error, on certiorari. Meeker brought an action before a justice, against Davis, for a deceit in the sale of a waggon, for which she had paid him 50 dollars.

<p>In order to prevent an inquest by default, the rits'1 by1 the'destate,"as She"is a<1.VIse<i by counsel, and a copy of it should be sewed on the plaintiff’s attortrial. 1</p>

THE sheriff of Albany, had been served with a ha-teas corpus ad testificandum, to bring up one J. S. in his custody, on a ca. sa. to testify in this cause. The sheriff J 7 returned that he had the body of the said J. S. in execution, and could not, therefore, return him, as required hv til p wri t oy tne Wilt.

<p>Where an aetio$\ is brought against a sheriff, for an escape, the court win stay execution onfhe judgment, íifftime to bring ¡‘ónd^taken1 for t]le hberties of the prison. What is a reasonable time for this purpose. The sheri if is not liable to pay interest during the time the proceedings are so stayed.</p>

<p>An affidavit of the service of a copy of a declaration, and notice of the rule to plead, must be positive and sufficient, at the time the default is entered thereon, for not pleading. It cannot be made good,by a subsequentknoivledge of the fact, that the notice was received by the defendant’s attorney at the time.</p>

<p>When the defen dan t, on a motion to set sets forth in his wwT^constiof^iídefence, can huf'e6 of the merits,'it is sufficient, without saying he is adjised by coun</p>

<p>On st motion to change the veuue m a cause* the defendant in his affidavit* in stating1 that he has a good defence on the merits, need not say, as he is advised by counsel.</p>

<p>Where a judge, at liis chambers, on a rule to show cause of action, allowed the plaintiff to make supplementary affidavits, on which the defendant was held to bail, on a motion of the defendant, after-wards, for an exoneretur} on the ground of the irregularity of the judge’s order; it was held, that this was an. original application, and that counter-ni'hdavits on the part of the plaintiff were admissible. Where the first affidavit of the plaintiff, is insufficient, whether a supplementary affidavit, in order to hold the defendant to bail, is admissible? Qacere.</p>

RODMAN moved that the defendants in this cause be discharged from the ca. sa. on which they were .held in custody by the sheriff of Albany, The defendants were taken on the 13th day of March ^ast’ on a ca' sa' returnable on the first Monday of May. On giving security to the sheriff, according to the statute, 00 % J 0 ' they were permitted to go at large within the liberties of the gaol.

<p>In an action of ejectment, where the defendant alleges that the lessor of the piamtiff has taken possession of more land than was recovered by eomtw'iu order hui where ‘ the the ISproperfUl> course is to award a icigned issue to try the question.</p>

THIS was an action of covenant, on a policy of in- . „ . , . , r . surance against fire.

THIS was an action óf asslcmpsit. The declaration contained seven counts.

<p>THIS was an action of assumpsit. The declaration was on two promissory notes, one of them dated the 24th December, 1807, for 373 dollars and 62 cents, payable to the plaintiff, or order, 60 days after date; the other was dated the 17th January, 1808, for 564 dollars and 26 cents, payable in 60 days. Inglesby separately pleaded non assumpsit, with notice of a set-off ; and Stokes, afterwards, put in a plea, puis darrein continuance, as of the second Monday of November^, which stated,- that on the 19th September, 1808, he and Inglesby, being unable to pay their debts, did agree to and with the several persons to whom they were indebt-, ■ed, and among others, to and with the plaintiff, to assign to their said creditors, all their stock in trade, and outstanding debts due the defendants ; in consideration whereof, the plaintiff and the other persons to whom the defendants were indebted, promised and agreed to receive the assignment of all the said stock and debts due the defendants, in full satisfaction of, and for the debts due to the creditors respectively ; and Stokes averred, that the defendants, in pursuance of the said agreement, thereupon delivered all the stock in trade, which they then had, and did assign all the debts then due and owing to them, for the use and benefit of the plaintiff, and the other creditors of the defendants ; which said delivery of stock, and assignment of debts, was on the same day and year, received by the plaintiff, in full satisfaction of the promises and undertakings, mentioned in the declaration of the plaintiff, and by the other creditors of the defendants, in full satisfaction of the debts due to them respectively, and this he, the said Stokes, was ready tm- verify, wherefore, &c.</p> <p>To this plea there was a special demurrer and joinder. The causes of demurrer assigned were, 1. That the plea was uncertain in setting forth a continuance from August term, 1808, to the second Monday of November, without saying in what year. ,</p> <p>2. In averring that the defendants agreed to assign their stock and debts to their creditors, without averring that the plaintiff was a creditor of the defendants.</p> <p>3. Because it does not appear by the plea, that the defendants did assign their stock in trade pursuant to the agreement set forth in the plea.</p> <p>4. Because the plea does not set forth, to whom the assignment was made.</p>

THIS was an action of assumpsit, on a promissory , 1 J note, lor 475 dollars and 70 cents, dated December 15, 1807, made by the defendants, payable to the plaintiffs, ninety days after date The cause was triec before Mr. Justice Tates The cause was tried at the Albany circuit, April, 1807, . . . r, , At the trial, Keeler testified, that he was master of an Albany sloop, owned by him and the defendants.

THIS was an action of assumpsit, brought to recover tiie price ot a cargo oi wheat, sold by the plain» tiffs to the defendants, at ten shillings the bushel. Plea non assumpsit. The cause was tried before Mr. Justice Van Ness, at the New-Tork sittings, the 19th April, , .. , r , , . ._ , . 1809, and a verdict was taken for the plaintiffs, subject to the opinion of the court, on a case, containing the following facts.

<p>The answev of one defendant is no evidence against his co-defendant.</p> <p>Subsequent declarations by a party to a sale or transfer of property, which go to take away st vested right, are not admissible evidence.</p> <p>A debtor in insolvent circumstances, may bona fide give a preference to one creditor, to the exclusion of others; and such preference, though voluntary, is valid, unless done in contemplation of bankruptcy. And even if an act of bankruptcy be contemplated by the debtor, yet if*, at the instance, and on the application, of a particular creditor, he pays such creditor, or assigns him property, such payment or assignment will be valid, as against the assignees of the bankrupt. »</p> <p>A. who had been discharged under the bankrupt law, and whose estate would not, probably» pay more than 25 per cent, was held to be a competent witness, in a suit brought by the assignees of B. a bankrupt, against whom A. had proved a debt under the commission.</p>

<p>la a declaration í'or a libel, the plaintiff alleged, that the defendant had published several libels against him, in a .certain newspa|>fcr, and, after betting out one Itotimiftdth «1 seeded64 tims10; íLt part ofati°e" srid .newspaper, among other things, the libellous matter following, of and concerning the plaintiff, to wit,” setting forth the words, among which were the following; “ none but the bribers and the bribed contemplated the incorporation, meaning that the plaintiff had been guilty of' bribery and corruption, in obtaining; the incorporation of the said" bank.” After an interlocutory judgment by default, and a writ of inquiry of damages executed, on which judgment was rendered in the supreme court, it was held, that the declaration contained two distinct counts, and that the second count being bad, for want of sufficient averments, and entire damages having been given on the whole declaration, the judgment below was erroneous.</p>

<p>In a declaration for a libel, the plaintiff alleged, that the defendant had published several libels against him, in a .certain new spa-per, and, after setting out one part of the publication, with innuendoes,he proceeded thus : “ And in another part of the said newspaper, among other things, the libelJoas matter following, of and concerning the plaintiff, to wit,” setting forth the words, among which were the following; “ none but the bribers and the bribed contemplated the incorporation, meaning that the plaintiff had been guilty of bribery and corruption, in obtaining the incorporation of the said bank.” After an interlocutory judgment by default, and a writ of inquiry of damages executed, on which judgment was rendered in the supreme court, it was held, that the declaration contained two distinct counts, and that the second count being bad, for want of sufficient averments, and entire damages having been given on the whole declaration, the judgment below was erroneous.</p>

<p>AN action of ejectment was brought in the supreme court, by the defendant in error, to recover the possession of a lot of land in the town of Catskill, in the county °f Greene, being lot No. 12, in the second diyjsi0n of a tract called Lindsay’s patent.</p> <p>. ... The defendant m error, claimed title in three ways :</p> <p>. . . e 1. By an uninterrupted possession of 60 years.</p> <p>2. By a possessory right, derived from a peaceable possession of twenty years.</p> <p>3. By letters patent from the king of Great Britain. and seisin under that title#</p> <p>The defendant in error gave in evidence ; 1. an Indian deed, dated 26th June, 1684, witnessed by Marte Garretse and Cornelius Van Dyke, by which, the then Indian proprietors conveyed to Guysbert Outen Bag art, a tract of land which included the premises in question.</p> <p>2. An Indian deed to Capt. Francis Salisbury Marte Garretse, dated 8th July, 1678.</p> <p>3. An Indian deed to the same parties, dated 25th .November, 1678.</p> <p>4. An Indian deed to Cornelius Van Dyke and Marte Garretse, for land now known by the name of Corlairskill patent.</p> <p>5. A patent to Helmer Jansen, for the tract of land as described in the Indian deed to Guysbert Outen Bogart, bearing date, January 15, 1703, which recited, among other things, that Guysbert Outen Bogart, the father-in-law, and Mary Jokinse, the mother of Helmer Jansen, on the 18th February, 1688, conveyed the same premises to the said Helmer Jansen, the grantors having then been in possession above twenty years.</p> <p>6. A writ of escheat and inquisition, dated 15th and 17th September, 1733, whereby it was found that Helmer Jansen, died seised in fee of the premises in question, leaving no heir; by which the crown became seised thereof, and continued so seised, until August 22, 1738, when a patent for the lands described in the Indian deed to Guysbert Outen Bogart, and in the patent to Helmer Jansen, was granted to John Lindsay, reciting all the preceding facts.</p> <p>The defendant in error deduced a regular title under the patent to Lindsay, to one Egbert Bogardus, deceased, the father of tire lessors ; and he proved that Bogar- ■ dus left three sons, the lessors, and a daughter ; and by his last will and testament, devised the premises in question to the lessoi-s.</p> <p>In August 19, 1741, Vincent Matthews, Gerrit Van Bergan, Martin Van Bergan, Cadxuallader Golden and . George Clarke, the grantees of John Lindsay, the patentee, entered and made partition of parcel of the said tract of land, and held in severalty the lots divided, according to their several rights under the partition. The partition deeds contained a covenant mutually to share the expense of defending their title against other claimants of the same land.</p> <p>In 1752, David A. Abeel and William Fan Bergan, took possession of Lindsay’s patent, under the patent, and for the benefit of the proprietors, claiming under it. On the 12th January, 1773, the then proprietors, (among whom was Egbert Bogardus, the father of the lessors,) made a partition of the residue of the Lindsay patent, on which partition, the lot No, 12, among others, became the several property of Egbert Bogardus. The said lots, in whole or in part, were then and now are severally held by the said proprietors, or those claiming under them ; and the greater part have since been possessed by Bogardus, according to that partition.</p> <p>The defence set up, on the part of the plaintiff in error, who was the defendant below, was : 1, That the premises in question were comprehended in an elder patent, called the Catskill patent; and</p> <p>2. Thíjt there had been an adverse possession, under that patent, by him and those under whom he claimed, for more than twenty years.</p> <p>To establish his first point, the plaintiff in error produced the patent, called the Catskill patent, granted by governor Dong an, on the 29th April, 1588, to Elizabeth Fan Dyck and Martin Garritson. This patent recites a purchase made by Silvester Salisbury and Martin Garritson, of the native Indian proprietors, on the 8th July, 1678, of “ a certain tract of land with the appurtenances, lying, situate and being at a certain place called Catskill, in the county of Albany, on the west side of Hudson River, and on the south and north side of the creek or kill, consisting of five great plains, the first called Wachachkeek ; the second Wichquannacktekak ; the third Pachquaick ; the fourth Assiskowachkak, and fifth, called Potic ; together with the wood land adjoining to the said plains, extending four English miles from the said plains ; that is to say, four English miles from the "said plains, eastward; four English miles northward from the said plains ; four English miles westward from the said plains ; and four English miles southward from the said plains; (the land of John Bronk, out of the premises, only excepted.) It recites also, a former grant, or patent, from Sir Edmund Andross, of the 26th March, 1680, (said to be for the same premises,) and a petition of the grantees, for a more full and ample grant of the premises, and a more certain limitation of the estate, than was contained in the" former grant. It then goes on to give, grant, ratify and confirm to the patentees, in the manner therein mentioned, all the above recited and mentioned tracts of land and premises, butted and bounded, containing and extending as before expressed, with their and every of their appurtenances, to be holden in socage, subject to the yearly rent of one bushel of wheat.</p> <p>The deed executed by the Indians, and the patent from Sir Edmund Andross, referred to in the Catskill patent, conveyed only the five plains above described, and jthe woods around the same, containing, by estimation, in circumference, one Dutch mile.</p> <p>It appeared further, in evidence, that on the 13th of June, 1684, Cornelius Van Dyke, who had married Salisbury's widow, and Martin Garritson, obtained a deed from certain Indians, whereby they declare the land consisting in five plains, besides the woods surrounding the same, lying one Dutch mile east, west, north and south, is the true property of Salisbury and Garritson ; but that as the Indians pretend that they have some right beyond the mile, stretching as well eastward, towards the river side, as northward, towards the great plain, which was formerly bought by Captain Cloot and others ; they therefore sell to ' Van Dyck arid Gar-v ritson, all the lands which might lay out of the limits ^eir f°rmer purchase, that is to say, more than the mile in circumference, before bought, stretching east-towards the river side, so far as the right of Guysbert Outen Bogart, and northward, up from a certain kill, called Stuck, where the right of Outen Bogart ends, along the river up northward, to the Vlaught Hook, by the Indians called Machawamick, further stretching along the right of Captain Cloot, deceased, and others, to the old Catskill road, .under the hills, and so further to the former right of Catskill, heretofore bought by Captain Salisbury, deceased, and Martin Garritson.</p> <p>The plaintiff in error contended, that the location of the Catskill patent, ought to be made as follows : that its out bounds should run in such manner round the plains, as that with a line of four miles long, you would always be able to touch some part or other of the exterior boundary of the said plains, from any one point in the out bounds of the patent; this construction, he said, was adopted by the commissioners, who divided the Catskill patent in 1767, and this location, as appeared by the map of the division, will include the premises in question. The plaintiff in error below, also exhibited two other modes of locating the said patent, so as to include the premises in question, and which were explained by diagrams, exhibited on the argument of the cause. In support of this construction, he produced Christopher Tappen and Leonard Bronck, two surveyors, as witnesses, who agreed that the location, adopted by the said commissioners, was one that was practicable, and in their opinion, made agreeable to the intention and import of the grant.</p> <p>He also gave in evidence, an ancient return of a' survey, made in the year 1719, by one John Beatty, the then deputy surveyor-general, as made pursuant to an order for that purpose, issued by Peter Schuyler, the president of his then majesty’s council, for the province of New-Tork, on the petition of Gerrit Van Bergan, the eldest son of Martin Garretse, one of the patentees, named in the before mentioned patent, and of Francis Salisbury, also named therein. This survey was protracted by Christopher Tappen, who testified, that the said commissioners, in running out the boundaries of the said last-mentioned patent, discovered on its north and south bounds, a line of ancient marked trees, a little outside of the line run by the said commissioners, but corresponding to it in form, which they supposed to be trees marked by the said Beatty, when he made his survey as aforesaid. To show the contemporaneous exposition that had been given to the said patent, the plaintiff in error produced and read in evidence, an order, dated 22d August, 1717, made by the then council of the province of Nezv-Tork, setting out a patent to Henry Beekman, and giving two courses along the bounds of the Catskill patent; also a patent of the same date, for the same lands, to the said Henry Beekman. This patent is known by the name of the Kiskatamanatje patent, and is at the distance of four miles from the plains.</p> <p>He also called several witnesses, to wit: Christopher Tappen, Nicholas Van Schaick, Stephen Landtman, and Peter Brandozv, who testified, that along and up to the west, northwest and north bounds of the Catskill patent, were ancient possessions made from forty to eighty years ago, which were originally taken under the Catskill patent, and still continue to be holden under it.</p> <p>He also gave in evidence, two leases, dated 22d April, 1749 ", one executed by Martin and Gerrit Van Bergan, sons of Martin Garretse, one of the patentees . the other, by Francis Salisbury, son of the other patentee, both to John Spoor, for lands between three anti four miles from the plains, and a lease to James Taylor. dated 19th February, 1735-6, for all the lands contained *n Lindsay's patent; which lease was executed by Martin, and Gerrit Van Bergan and Francis Salisbury.</p> <p>He also produced written and parol evidence, of very ancient possessions under the Catskill patent, in part of it where the premises in question lie. Nicholas Van Schaick, a witness, also testified, that no part of Elizabeth Banker's patent had ever been possessed by her, or any other person claiming under her, but had always been possessed under the Catskill patent; and that part of Lydias's patent, which interfered with the Catskill patent, was held under it; that one Price, who had originally held his farm under the patent of Lydias, when he found that part of it was included within the bounds of the Catskill patent, as claimed by the defendant, in the court below, purchased from the proprietors, that part of his farm which was included within its bounds, as above.</p> <p>The judge, at the trial, rejected the construction of the Catskill patent, set up by the plaintiff in error, and adopted that before sanctioned by the supreme court; that is, by running lines of four miles in length, due north, south, east and west, from the extreme northern, southern, eastern and western parts of the plains, and closing those lines by straight lines from the extremities, (a)</p> <p>Besides the patents above stated, produced by the defendant in error, at the trial, several other patents were also given in evidence, as interfering with the Catskill patent, to wit: William Loveridge’s patent, dated 8th February, 1687. Corlair's kill patent, dated 23d May, 168Y. Jacob Lockerman's patent, dated in 1695. The Kiskatamanatje patent, granted to Beekman and Livingston. Elizabeth Banker's patent, dated 20th August, 1691. Van Vechten's patent, Lydias's patent, and the Vlacte patent; all of which, except Banker’s, Van Vechten’s and Lydias’s patents, were marked out on a map, produced at the trial.</p> <p>In regard to the second point, as to the adverse possession, there was various and contradictory evidence, which it is unnecessary to state.</p> <p>The judge, before whom the cause was tried, charged the jury, that by a just construction of the Catskill patent, the premises in question were not included in it; that evidence of possession, to defeat the title of the defendant in error, should be such as to establish a peaceable and unequivocal adverse possession, for twenty years antecedent to the commencement of the suit; but he submitted it to the jury, at the same time, intimating to them his opinion, that the evidence did not make out such an adverse possession. To this opinion, the plaintiif in error excepted, for the following reasons :</p> <p>1. That the judge ought to have charged the jury, that by a just construction of the Catskill patent, the premises in question were included in it.</p> <p>2. That he ought to have charged the jury, that the evidence of adverse possession was sufficient to bar the plaintiff’s right to recover.</p> <p>3. That it was clearly proved, that the defendant below held the premises adversely, at the time of the death of Egbert Bogardus, so that nothing passed by his will, and the lessors derived no title under it.</p> <p>4. If the lessors claimed by descent, then the plaintiff below was entitled to recover three-fourths only of the premises, as Egbert Bogardus left four children, and three of them only were made lessors of the plaintiff.</p> <p>On the bill of exceptions tendered to the judge, a writ of error was brought to this court.</p> <p>It was contended, on the part of the defendant in error,</p> <p>1. That even if the Catskill patent was not founded in fraud and misrepresentation, yet that it ought to receive a strict interpretation ; and that it will be fully satisfied by the construction adopted at the trial; and that it ought, probably, to be more narrowed in its extension.</p> <p>2. That all the ancient documents, contemporary with the Catskill patent, demonstrate that the extent, attempted to be given to that patent by the plaintiff in error, was not originally contemplated; and that no idea was entertained of its interfering with Outen Bogart's land, afterwards granted by patent, first to Jansen, and subsequently to Lindsay.</p> <p>3. That the doctrine laid down by the judge, as to the adverse possession, was correct and consonant to the rule of law on the subject.</p> <p>4. That the question, whether such an adverse possession had been proved, was properly submitted to the jury ; and that the expression of his opinion on a matter of fact, was not binding on the jury, nor the proper subject of a bill of exceptions.</p>

THIS cause came before the court, on a writ of error r from the supreme court. It was an action of slander. The declaration containec¡ four counts.

<p>THIS cause came before the court, on a writ of error, from the supreme court. (See 2 Johns. Rep. 297.)</p>

THIS cause came before the court, on a writ of error from the supreme court.