Volume 5 — Wendell's New York Reports

<p>Conviction for perjury. The indictment stated that on the 26th October, 1829, Abner B. Phelps, late of, &c. presented to the Hon. Richard Riker, then being the recorder of the city of New-Tork, and authorized to receive petitions under the act to abolish imprisonment for debt in certain cases, passed April 7, 1819, and the several acts relative to insolvent debtors therein referred to, a petition, (as well in his individual capacity as in the capacity of the partner of Elias Warner,) therein represented as being then actually an inhabitant within the said city, setting forth his insolvency and praying that his estate might be assigned for the benefit of his creditors, and that his person might be exempted from arrest and imprisonment ; that upon presenting such petition, Phelps delivered to the recorder certain papers purporting to be an account of his creditors, and the money them respectively (omitting the words owing to, supplied however by an innuendo, thus, “meaning the money owing to them respectively”) by the said insolvent, the place of residence of the creditors, &c. and also a full, just and true inventory of all the estate, both real and personal in law and equity, of him the insolvent, and of all the books, &c. relating to the same; that on the day of presenting the petition, Phelps unlawfully, wickedly and maliciously intending to injure one J. H. and sundry others of his creditors, and wrongfully, fraudulently and unlawfully to obtain the benefit of the said insolvent law, produced and exhibited to the recorder a certain oath and affidavit in writing, and then and there, before the said recorder, was duly sworn, and took his corporai oath concerning the truth of the matters contained in the said oath and affidavit, averring that the recorder, by virtue of the said act, had lawful and competent power and authority to administer the oath and to take and receive the affidavit of Phelps in that behalf; and that the said Phelps being so sworn, and not having, &c. and being moved and seduced, &c. and not regarding the said acts, but fraudulently, wickedly and corruptly devising to suppress and avoid a full and true disclosure of his estate and effects, and to subvert the truth itself, did then and there, in and by his said oath and affidavit, upon his oath aforesaid before the said recorder, falsely, corruptly, knowingly, wilfully, maliciously, and wickedly say, depose and swear, (among other things,) in substance and to the effect following, to wit: “ I, Abner B. Phelps, &c. (setting forth the affidavit prescribed to be taken by insolvents, with proper innuendoes,) as by the said oath and affidavit, and said petition with the said papers, so purporting as aforesaid, thereto annexed, filed in the office of the said Richard Riker, recorder as aforesaid, at, &c. more fully appears; whereas in truth and in fact the said papers so purporting to be a full, just and true account of all the creditors of him the said Abner B. Phelps, &c. and also a full and just inventory of all the estate both real and personal in law and equity of him the said A. B. Phelps, &c. and so produced and delivered to the said recorder, and so referred to by the said A. B. Phelps, in his said oath and affidavit, as containing an account of his creditors, &c. and the inventory of his estate, &c. were not in all respects just and true, as the said A. B. Phelps well knew at the time he took and made said oath and affidavit in manner aforesaid, for that the said A. B. Phelps was interested in and owned individually and as the partner of Elias Warner, the following estate and property, to wit, $3,500 in goods, wares and merchandize in the hands of G. M. & Co., merchants in Philadelphia; also sundry trunks of dry goods, jewelry and hardware found in a dwelling house lately occupied by'him in Elizabelh-street, in the city of New-York, of the value of $1000; also sundry goods in a store in Chaihnm-street of the value of $2000, and also sundry trunks of dry goods in the house of one J. B. of Troy of the value of $900; also sundry other goods, wares and merchandize ; also sundry notes of hand due from the said J. B. of the value of $900, and money, bonds, notes of hand, bills of exchange and debts due said Phelps and said Phelps and Warner of the value of $1000, all which was knowingly and fraudulently by said Phelps left out of his aforesaid inventory and papers referred to in said oath and affidavit.” Then followed an averment that the papers purporting to be a full and just inventory of the estate, &c. of the insolvent, referred to in his affidavit, were not a just and true inventory of all such parts of the goods, wares, merchandize, money, estate and effects of the said insolvent individually and as a partner of Warner, as were at the time of presenting the said papers to the recorder, in the custody, possession, power or knowledge of him the said insolvent,for that the said insolvent was then and there interested in a large part and proportion of the estate and property above enumerated, and other property consisting of dry goods, merchandize and debts due to a large amount, to wit, $1000 and up wards; and had for the future benefit of himself or his family, disposed of and made over a part of his personal estate, to wit, money, notes of hand, goods, waves and merchandize, above enumerated, of the value of $5000j (not being necessary wearing apparel, &c.) with the intent to defraud his creditors, and with a view fraudulently to obtain the benefit of the said act; concluding that Phelps in his oath and affidavit aforesaid did knowingly, falsely, maliciously, wilfully and corruptly commit wilful and corrupt perjury in and upon points and things material to his obtaining the benefit of the said act, to the great displeasure, &c. in contempt, &c. to the evil example, &c. and contrary to the form of the statutes, &c. .</p> <p>The defendant was tried at the New-York general sessions and convicted, and the case was brought up for the advice of this court upon the sufficiency of the indictment.</p>

Error from the Seneca common pleas. Leek sued Rumsey in a justice’s court, and declared on a note given by the defendant to one Catharine Losee or bearer for the sum of $100, bearing date 15th February, 1828, on which there were two endorsements, one of $50 and the other of $7; the defendant pleaded the general issue, and that the note was fraudulently obtained, and charged the plaintiff with notice.

Error from the Nevv-York common pleas. Hopkins sued Gardiner in the common pleas, and declared that one Charles Wiley, being indebted to him in a large sum of money, to wit, &c. for work and labor, care and diligence in the printing of a certain book, the sheets of which book, or some part thereof, were in the possession of the plaintiff as his security for the payment of the said sum, the defendant promised to pay the plaintiff such sum so owing to him by Wiley, in…

This was an action of ejectment, tried at the New-York circuit in March, 1829, before the Hon. Ogden Edwards, one of the circuit judges. The lessors of the plaintiff were the owners of a leasehold estate consisting of six houses and lots in Washington-street in the city of New-York, originally demised by A. L. Stewart, which had come to them by sundry mesne conveyances from the lessees.

Demurrer, to replication. The declaration is in case for a deceit in the sale of land.

Error from the Albany common pleas. Arnold and Bovee sued Halenbake and Fassett in the justice’s court of the city of Albany, and declared In trover for 12 cords of wood; the defendants pleaded the general issue ; the cause was tried by a jury, and the defendants had a verdict; and the plaintiffs appealed to the Albany common pleas.

Demurrer to declaration. The declaration, after commencing in these words, “Joshua Christopher, administrator of all and singular the goods, chattels and credits which were of James M. Christopher, deceased, at the time of his death, who died intestate, plaintiff in this suit, complains of Abraham B. Stockholm, defendant in this suit, in custody,” &c. proceeds to state for that whereas the defendant on, &c. at, &c. was indebted to the plaintiff in the sum of $400 for divers…

The defendant was tried on an indictment for perjury at the oyer and terminer in Rensselaer county, in November last, and found guilty by the jury. An application was made to that court for a new trial; the court doubted its power to grant a new trial on the merits, and suspended sentence to give the defendant an opportunity to apply to this court for its opinion, as to the power of the court of oyer and terminer to grant a new trial. The question was argued in this court by

This was an action of ejectment, brought for the recovery of 56 acres of land, part of lot 79, in the township of Pompey, in the county of Onondaga. The cause came before the court on a case made by consent.

This was an action of assumpsit, tried at the New-York circuit in September, 1829, before the Hon. William A. Duer, then one of the circuit judges.

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

This was an action of ejectment, tried at the Delaware circuit in November, 1828, before the Hon. Ogden Edwards, one of the circuit judges. The action was brought for the recovery of lot No. 6, in the subdivision of a tract containing 950 acres, for the nonpayment of rent. The larger tract was demised, in 1792, jjy John Leake to James Howard and six other persons in fee, reserving an annual rent of a shilling per acre.

Error from the Albany common pleas. Bill sued Ten Eyck in the common pleas and declared against him in trover for a horse. Ten Eyck, as sheriff of the city and county of Albany, had taken the horse by virtue of an execution on a judgment in favor of one Mapes against one McEIroy, and sold the same to Philo Fuller for the sum of $72, and the money remained in the hands of the sheriff.

Demurrer to plea. The plaintiff declared in debt on bond. Loder, who alone was taken on the copias issued in the cause, appeared and craved oyer of the bond and condition, from which it appeared that the bond was executed 2d September, 1838, on which day the plaintiff Sunderland had obtained a judgment in a justice’s court against Lockwood for (§35,04 damages and costs; that the plaintiff was about taking out execution in the same, and to stay such execution the bond was…

Error from the Onondaga common pleas. Canfield sued Millard in an action of trover for $40 in bank bills.

This was an action of assumpsit tried at the Onondaga circuit in February, 1829, before the Hon. Daniel Mosely, one of the circuit judges. The plaintiffs declared on a promissory note, bearing date in November, 1820, payable on demand. The declaration was entitled as of the October term, 1837. The defendant pleaded the general^ issue, and annexed to his plea a notice that he would insist and rely upon the statute of limitations as a bar to the plaintiff’s action.

This cause came before the court on a case made by consent. The action was on'a promissory note for $1200, dated in June, 1826, made by the defendants, and payable to the president, directors and company of the bank of Rut-land ninety days after date. The note was made to enable Spear and Everest to raise money for their own accommodation ; it was signed by Buck as surety, and delivered by him to Spear and Everest.

Writ of replevin. On the 19th May the defendant De Witt sued out a writ of replevin against the plaintiff Morris and one Platt, returnable at the July term, to the sheriff of Schenectady, commanding him to replevy 350 tons of bog or iron ore. The ore was delivered by the sheriff to the defendant De Witt.

Motion to amend. The defendant was sued as an owner of the steam-boat Independence, for materais furnished in her construction. The declaration was served in New-York, on the agent of the defendant’s attorney, (who and his client resided in Albany,) on the 3d February.

Costs against administrators. This was an action on a promissory note given hy the intestate. The suit was-cominenced by the filing and service of a declaration in the month of February last. The defendants appeared and put in a plea of the general issue, and subjoined thereto a notice of special matter. On the 12ill March the plaintiff noticed the cause for trial, at the Onondaga circuit, on the third Monday of Jlpril then next.

Entitling of netrr. The cause of action in this case arose on a promissory note due in February, 1830. The suit was commenced by filing a declaration in the office of one of the clerks of the court, in pursuance of the statuale, 2 R. L. 347, § 1, on the 13th March, 1830.

Question of costs of non-enumerated motion. The defendant gave notice of his intention to move this court to set aside the default entered in this case for not pleading, and all subsequent proceedings for irregularity. It. appeared on examining the case that, the default was regularly entered, but that the subsequent proceedings were irregular.

Trial hv record. This was an action of debt, on recognizance oj bail in error.

In an action for trespass on lands and taking and carrying away timber, the jury found the value of the timber taken to be ,$67, and found a verdict for that amount. Tiie judge certified that on the trial of the cause, the title of the plaintiff to the lands entered upon came in question; that the lands were not in the actual possession of the plaintiff, and he was required by the defendant on the trial to prove his title to the same.

A question arose ns to the construction of the eighth rule of 1st January, 1830, whether a service of papers on an agent was good, where the attornies for the adverse parties resided within 40 miles of each other, but not in the same county.

<p>Where there are several causes in the name of the same party against sever-a! defendants, in which the question is the same, and the evidence the same, and one is tried and the plaintiff nonsuited, who presents a bill of exceptions, and refuses to try the other causes, the defendants in the other causes are entitled to judgment as in case of nonsuit, unless the plaintiff pays the costs of the circuit, and stipulates that the causes remaining untried shall abide the event of the cause tried.</p>

Motion to set aside proceedings for irregularity. This is an action of ejectment to recover dower in pursuance of the provisions of the revised statutes, 2 R. S. 303, 4. The notice subjoined to the declaration stated that the declaration would be filed on the 24th May, which was the twenty second day of term. The default of the defendant was entered on Monday the 14th June.

Motion to set aside an execution on the ground of the judgment having been paid. In December, 1827, C. Adams became the endorser of a note of $500 made by the defendant, which was discounted at the New-York State Bank. The note, when, due, not being paid, the maker and endorser were sued, and separate judgments obtained against them, in August, 1828.

<p>Motion to vacate a rule discharging the defendant from an arrest on a ca. sa.</p>

Motion to set aside a judgment entered against an executor for costs ; leave for the entry of such judgment not having been previously obtained.

<p>Motion for double costs, on (he affirmance of a judgment after verdict.</p>

<p>Motion for a mandamus. In April last the attorney general sold 74 acres of land, situate in a tract called the Oneida Purchase of 1798, mortgaged to the people of this slate by one Setli Holmes. Willard, the relator, became the purchaser, and paid as much as was required of him, and subsequently tendered a bond and mortgage for the residue of the purchase money, and demanded a conveyance from the attorney general. The conveyance was refused, because, in the mean time and within 60 days after the sale, one Joseph L. Williams, the owner of 36 acres, part of the land sold, had paid into the treasury of the state all that was due to the state charged on the mortgaged premises, and all that, was necessary to be paid to entitle the owner of the mortgaged premises to redeem. Application was now made for a mandamus, commanding the attorney general to execute a conveyance to Willard, on the ground iliat apart owner of mortgaged premises has not a right to redeem.</p>

Motion in an action of ejectment brought against eleven defendants, that they have leave to sever in their defence, and that the plaintiff enter into a separate consent rule with each defendant.

Motion to quash a certiorari. The plaintiff sued out a certiorari to remove a justice’s judgment rendered for the sum of $39 into this court. The certiorari was allowed by a commissioner, without leave having previously been obtained from the court.

It appeared that there was not sufficient time after the stipulation, regularly to notice the cause for trial at the circuit immediately thereafter.

<p>A party in an action of ejectment commenced previous to the revised statutes going into effect, in the name of the nominal plaintiff, is not entitled to a neto trial according to the provisions of those statutes.</p>

In this case,- the commissioner-taxed a fee of $2 to the attorney and $2 to counsel for attendance before referees, in a case in which the plaintiff was entitled only to common pleas costs. It was objected that an allowance of one fee only was taxable for each attendance, and so it was held.

Motion to strike out demurrers. The action in this case was brought to recover for the breach of the covenants of seisin and warranty contained in a deed of land executed by the defendant to the plaintiff The declaration contains four counts, in each of the three last of which, four breaches are assigned.

A suit was commenced against the relator in the Monroe common pleas by the filing and service of a declaration pursuant to the revised statutes. The defendant demurred to the declaration, and the plaintiffs in the suit entered a rule to amend, amended their declaration, and served a copy of the same on the defendant.

Motion (o set aside inquest. The action was commenced 2Slh August. There were three defendants, two of whom appeared and put in a plea; the third suffered a default. About, the 20th September, the plaintiffs gave notice of trial to the defendants who bad pleaded, for the Rivingston circuit to be held on the fourlh Monday (25il>) of October last, and on the second day of the circuit, took an inquest ; which was now moved to be set aside as irregularly taken.

The plaintiff declared in assumpsit. The first count was on a promissory note for $400, (lie second on a note for $30, and then followed the common money counts. The defendant pleaded, 1. The general issue; 2. Payment; and 3. Accord and satisfaction to tlie first count. To the last, plea, the plaintiff demurred, and the defendant joined.

Priority of executions. A record of judgment was filed in the first above entitled cause on 9ih July, at nine o’clock, A. M., and in the second above entitled cause on the same day at 50 minutes after itoo o’clock, P. M. A fi. fa. was delivered to the sheriff of Rensselaer in the second above entitled cause at half past nine, A. M., on the same day, and in the first entitled cause a similar writ was delivered to a deputy of the sheriff at eleven, A. M. The sheriff sold the…

J. G. Nichols was convicted at a court of special sessions, in the county of Yales, of an assault and battery, and fined $15; he notified the magistrates before whom .the conviction was had, that he intended to remove such conviction by certiorari into this court, and entered into a recognizance to appear at the next court of general sessions of the peace to be held in the county of Yates, and to abide (lie judgment or order of that court in the premises, 2 R. S. 718, § 50.

Case submitted for advice of court. This case is precisely like the last, except that the party prosecuting after conviction of (lie defendant acknowledged to have received satisfaction for the injury; on which state of facts the court of general sessions of Yales was moved that the defendant be discharged from the conviction. The court respited the recognizance of the defendant until the next general sessions, so as in the mean time to obtain the advice of this court.

* The defendant pleaded the general issue in an action of assumpsit and an insolvent discharge, exempting his body from imprisonment. The plaintiff replied fraud.

The action in this case is debt on bond. The defendant is a female. The suit was commenced in Mny, 1829, and txvo individuals became special bail for the defendant. Under the provisions of (he revised statutes, 2 R S. 428, § 9, declaring that no female shall be imprisoned on arty process in any civil action founded upon contract, a motion is now made that an exonerelur be entered on the bail pieces in this cause.

An action of assumpsit was brought in the superior court of the city of Nexv-York, in favor of E. G. Oehricks against The President and Directors of the Phoenix Hank, to recover tlie amount of a Ifill of exchange for $2,500, drawn hy one Heckscher, in favor of himself, on N. Pearce of Baltimore, payable at sight and endorsed by Heckscher to the plaintiff; which bill of exchange was deposited with the defendant for collection, and the amount thereof was claimed from them on…

The defendants were the endorsers of a note drawn by O'. & D. H. Clapp as makers, for the sum of $1000, discounted at the Bank of Lansingburgh. The makers paid a part of the note. The endorsers were sued and a judgment obtained against them for the balance. About the 1st September, 1829, an execution issued upon the judgment. In October, 1829, Billings paid $420,89, the moiety of the execution.

Motion to set aside execution. In 1821, the defendants obtained a judgment against the plaintiff for the costs of the defence of a suit prosecuted against them, amounting to $164,88.

I. Hamilton moved for a mandamus to a circuit judge, that he restore to a bill of exceptions as prepared by the attorney for the defendants, certain parts of the evidence given on the dial, and certain parts of his charge to the jury, stricken out. by him on amendments proposed by the plaintiff’s attorney; and that he affix his seal to the bill thus corrected.

The defendants were sued on a bond to stay a justice’s judgment for $28,09. Ttie penally was $60, conditioned to pay the amount, of the justice’s judgment. On the 23d July an action of debt was commenced in this court, on the bond, by the filing and service of a declaration. On the 16th August the defendants tendered to the plaintiff’s attorney the sum of $28,96, being the amount due the plaintiff according to the condition of the bond.

Motion that writ of inquiry be executed at the circuit. The action was for an assault and battery. The day laid in the declaration was the second day of January, 1830. The defendant did not plead, and a writ of inquiry was executed and an inquisition found for $300 damages, which inquisition was set aside and a new inquiry held.

Motion to vacate judge’s order. The plaintiff sued out a writ of error from this court to the superior court of the city of New-York, and gave bond with sureties for the prosecution of the same. The defendant excepted to the sufficiency of the sureties.

Notice of trial. The notice of trial in this case was served on the ninth day of November for the twenty-third day of the same month, and an inquest was taken at the circuit. A motion was now made to set aside the inquest for irregularity, on the ground that notice of trial was not served fourteen days before the first day of the court at which the trial was had.

<p>Special motions should be argued and not submitted on briefs, as was the practice under former rules.</p>

Error from the Seneca common pleas. In May, 1827, a contract was entered into, by which the intestate agreed to sell and Jackson to purchase a boat load of wheat, amounting to 1251 bushels, at 78 cents per bushel, to be delivered on board of Jackson’s boat at Kidder’s landing on the Cayuga lake. The contract was not in writing, no earnest was paid, nor was there at the lime of the contract a delivery of any part of the wheat.

This was an action of ejectment, tried before the Hon. Eseic Cowen, one of the circuit judges. The defendant was in possession of about twenty-one acres of land, part of a lot designated as lot F.- 6, which it was alleged had never been granted by the state to any person whatever.

Debt on judgment rendered in a sister state. The declaration sets forth a judgment obtained by the plaintiffs against-the defendant in the court of common pleas of the commonwealth of Massachusetts, holden at Boston, in the county of Suffolk, in the term of April, 1827, for $393,36, averring the same to remain in full force. The defendant pleads, 1.

Error from the New-Vork common pleas. The declaration was in debt on a judgment obtained in the common pleas of Suffolk, in the commonwealth of Massachusetts. The defendants jointly put in a plea like the first plea in the cause of Starbuck and others v. J. B. Murray, ante, 148.

This was an action of covenant, tried at the Delaware circuit in September, 1829, before the Hon. Jambs Emott, one of the circuit judges.

Error from the Onondaga common pleas. The trustees of the village of Syracuse prosecuted Lamed for a violation of one of the ordinances of the village, and recovered a judgment for a penalty of $15 in a justice’s court. Earned appealed to the Onondaga common pleas, where the cause was again tried, and a recovery again had.

■ Demurrer to replication. The plaintiff declared in trespass for an assault, battery and false imprisonment. The defendant pleaded, 1. The general issue; 2. A justification, for that he as a constable, by virtue of an execution issued by a justice of the peace, on a judgment rendered against the plaintiff in assumpsit, for $7,38, arrested the plaintiff and committed him to jail; and 3. A similar justification, setting forth the judgment.

<p>A note reserving interest, negotiated by a broker or agent, who obtains the money on the same for the maker from a third person, is not usurious in the hands of the holder, although the agent be the payee of the note and receives 125 per cent, for the negotiation, no part of such sum being paid or agreed to be paid to the person advancing the money.</p> <p>An endorser not shewn to have been made liable by notice of the dishonor of a note, and not called to prove the genuineness of the note, is a competent witness, in an action by the endorsee against the maker, to shew that the note is not usurious.</p> <p>It seems that he would be a competent witness for such purpose, although he had been fixed by notice of the non-payment of the note.</p>

Error from the Jefferson common pleas. La Farge, by his agent M’Nitf, on the 27th September, 1827, distrained certain property of C. Carpenter, his tenant, for rent.

This xvas an action-of debt, tried at the Jefferson circuit in June, 1829, before the Hon. Nathan Williams, one of the circuit judges. The suit was commenced in February, 1829.

Demurrer to declaration. The declaration contains two counts: in the first, it is stated that on the 16th October, 1828, the defendants entered into a policy of insurance, whereby, for the premium of $9,75, they engaged to insure one John Van Velzer against loss or damage by fire, to the amount of $1300, upon two buildings, to wit, $! 200 upon a dwelling house and $100 upon a stable and waggon house, for the period of one year, specifying the terms and conditions of the…

Motion to set aside report of referees. This was an action to recover for work, labor and services done and performed by the son of the plaintiff for the defendant. The declaration contained only the common counts. The cause was heard before referees.

This was an action of assumpsit, tried at the Allegany circuit in May, 1828, before the Hon John Birdsall, one of the circuit judges. The declaration contained the common money counts.

Information in the nature of a quo warranta. The trustees of Geneva College (being an incorporated college,) located in the village of Geneva, in the county of Ontario, in the western part of this state, established a Medical Faculty in the city of New-York, called “ The Rutger’s Medical Faculty of Geneva College,” and appointed professors of medicine, surgery and anatomy residing there, to have the care of the education and government of students in the city of New-York;…

<p>A motion in arrest of judgment must be made on the circuit roll; it will not be heard on a copy of the declaration served and an affidavit that a trial has been had.</p>

Demurrer to declaration. The declaration is on a sci-re facias to revive a judgment obtained by the plaintiffs against the defendant for $215,99 in asumpsit. The defendant pleads, 1. Jful tiel record; and 2.

This was an action of assumpsit, tried at the Madison circuit, before the Hon. Samuel Nelson, one of the circuit judges. The defendants were co-partners in trade; Goodsell residing at Hamilton, in the countjr 0f Madison, where the defendants carried on business as merchants, and Sparrow residing at Cooperstown, in the county of Otsego. In January, 1828, Goodsell borrowed of the plaintiff $150, saying that he wanted the money to send to Sparrow.

This was an action of assumpsit, tried at the Albany circuit in September, 1829, before the Hon. William A. Du-er, then one of the circuit judges. The suit is for the recovery of the amount of several bills of exchange accepted by James Gibbons in his life time.

Error from the Orleans common pleas. Smith sued Wilcox in an action of trespass de bonis asportatis. Wilcox justified the taking as a constable, by virtue of an execution tested in June, 1826, issued by Justus Ingersoll as a justice of the peace of the town of Shelby in the county of Orleans, upon a judgment rendered by him against Smith. It was admitted that the execution on its face was strictly regular.

<p>Where A. in consideration of property transferred and delivered to him byB. promises to pay and discharge, amongst other creditors of B. named and specified at the time, the demand or claim of C. against B. on certain notes held by him, an action will lie by C. against A. although the promise of A. is not reduced to writing.</p>

Error from the Madison common pleas. Merrill sued Near and Forbes in a justice’s court, and declared in these words: “The plaintiff declares against the defendants for two chains, one yoke of oxen, one yoke of stags, one yoke of steers and one ox yoke, bows and irons, to his damage $50.” The defendants pleaded not guilty.

Error from the Clinton common pleas. M’Guinty sued Herrick in a justice’s court, and declared in trespass for taking certain goods and chattels. The defendant pleaded not guilty, and justified under an execution issued on a justice’s judgment in favor of one Monty against M’Guinty, of which judgment the defendant was the assignee.

This was an action of ejectment, tried at the Madison circuit in March, 1829, before the Hon. Nathan Williams, one of the circuit judges. The lessor of the plaintiff deduced title to the premises in question, being part of lot No. 78 in the Canastola tract, in the town of Lenox, by the production of a deed from Barnharcll Jfellis to Toleration II.

Demurrer to declaration. The plaintiff declared on a bet, made on the 15th November, 1828, by which the defendant undertook to pay the plaintiff one cent for every vote which JMarlin Van Burén had received for the office of governor of this state, at the election ending on the 5th day of that month, over 20,000 more than were given .for Smth Thompson, his competitor for that office.

Trial for second offence. At the Rensselaer oyer and terminer, in December, 1829, holden by the Hon. William A. Doer, then one of the circuit judges, and two judges of the county courts of Rensselaer, the defendant was tried for a second offence of petit larceny.

This was an action of assumpsit tried at the Rensselaer circuit in June, 1829, before the Hon. William A. Duer, one of the circuit judges.

This was an action of assumpsit, tried at the Washington circuit in June, 1829, before the Hon. Esek Cowen, one of the circuit judges, The plaintiff declared as the endorsee of two promissory notes, made by the defendant, payable to Robert Dean or order. The notes bear date 15th October, 1808, payable in March and October ensuing their dates. The suit was commenced in October, 1828.

This was an action of slander. The plaintiff was the owner of a distillery, and carried on the business of distilling extensively, purchasing large quantities of coarse grain.

Thvs action was tried at the Madison circuit in September, 1839, before the Hon. Samuel Nelson, one of the circuit judges. The ■ declaration contained two counts in case for taking certain personal property from the possession of one 3E. Hull, who had mortgaged the same to the plaintiff to secure the payment of a debt and disposing of the same, and a third count in trover for the conversion of the same property. The defendant pleaded the general issue.

This cause came before the court on a case agreed upon between the parties.

At the New-York general sessions, holden in June last, the defendant was tried on an indictment for perjury in taking the oath required from insolvents on presenting their petitions, &c. for a discharge.

EkPvOR from the Greene common pleas. Musier sued Trumpbour in a justice’s court, and declared for about 200 bushels of lime ; the defendant pleaded the general issue, and gave notice of set off. The cause was tried before the justice, and judgment rendered for the defendant for $2,60. The plaintiff appealed to the Greene common pleas ; where the cause was tried on the issue joined before the justice.

Error from the Dutchess common pleas. Toof sued Bently and Harris in trespass for breaking open his blacksmith shop and taking and converting to their own use certain tools and other property there found. The defendants justified under a judgment and execution in favor of Bently against Toof.

This was an action of assumpsit tried at the Oswego circuit in June, 1829, before the Hon. Nathan Williams, one of the circuit judges. The action was brought to recover for the building of a tan„bouse by the plaintiffs for the defendant.

This was an action of trespass tried at the Tompkins circuit in January, 1829, before the Hon. Samuel Nelson, one of the circuit judges. Held: acknowledged Jerome as his landlord, and agreed to pay the income of the mill to him, and continued miller. It appeared that the summons issued by the defendant was preceded by an affidavit made by Jerome.

Demurrer to pleas. The declaration is in debt on a recognizance entered into on the suing out of a writ of error to remove into this court a judgment in favor of the plaintiff against one Thorne, rendered in the New-York common pleas, for $83,43. The recognizance was.acknowledged on 2d July, 1823. The judgment was affirmed in this court, and $309,13 were adjudged to the plaintiff for damages, &c. for delay of execution.

The defendants were tried for murder, at the oyer and terminer of Genesee. The trial occupied four days, and was closed about ten minutes before twelve o’clock on Saturday night. It was conceded by the public prosecutor, that if the jury were of opinion that the defendants or either of them were guilty of manslaughter only, they might so find.

Error from the Erie common pleas. The plaintiff brought replevin in the C. P. for stoves and heading taken by the defendant on the 1st July, 1827, from certain lots on Grand Island in Buffalo, in the bounty of Erie.

Error from the Madison common pleas. In an action of debt on judgment, the plaintiff in support of his declaration produced a certificate of a justice of the peace that at a court holden before him, at his office in the town of Middlebury, in the county of Schoharie, on the 17th day of April, 1817, Borst did, by the consideration and judgment of the said court, recover against Benn $15,75 in a certain plea of trespass on the case, for the damages and costs of Borst.

<p>A statute foreclosure of a mortgage 31 years after the monies secured there. by fell due, rebuts the presumption of payment arising from lapse of time.</p> <p>The fact of the premises being occupied by a mere naked possessor, neither holding or claiming under the mortgage, may be relied on as a circumstance to rebut the presumption of payment.</p>

<p>False imprisonment will not lie against a plaintiff who insists in a justice’s court that he is entitled to a general judgment against a defendant, notwithstanding an insolvent discharge exempting the body of the defendant from, execution, obtains such judgment and procures an execution to be issued on which the defendant is arrested.</p> <p>Although the judgment be erroneous, the point having been discussed an£ judicially decided, the plaintiff is protected by the judgment.</p> <p>Where resort is had to management or artifice to deprive a defendant of the-benefit of exemption from execution against his body, it seems the actioo will lie.</p>

This was an action of assumpsit, ivied at the Nevv-York ^circuit in June, 1829, before the Hon. Ogden Edwards, one of the circuit judges. The declaration contained a count stating that the defendant, in consideration of the plaintiff delivering to him a Hudson Insurance Company bond for $1000, on which interest to a certain amount, had accumulated, promised to pay the plaintiff the sum of $1000, with the interest thereof, when he should be thereunto afterwards requested.

Error from the Madison common pleas. Hewit sued Lamouriex in a justice^ court, on a warranty endorsed on a promissory note given by P. Wilkinson, payable to S. Beecher or bearer on the 10th October, 1827. Lamourieux sold the note to one Tuttle previous to its becoming due, and endorsed a warranty thereon in these words: “ I warrant the collection of the within note for value received,” and signed the same.

Error from the Monroe common pleas. Magne sued Seymour, sheriff of Monroe, in an action on the case for a false return of nulla bona on an execution in favor of Magne againt one Barrington, for $510.

Demurrer, to replication. The plaintiffj in the declaration in this cause, is described as “ A. T. Bodle, acting executor of the last will and testament of A. Bodle, deceased.” The defendant pleadsln abatement that the testator, in and by his last will and testament, constituted and appointed the plaintiff and one Oliver Bodle executors, &c. and that Oliver Bodle, at the time of the commencement of the suit, was and still is living, &c. The plaintiff replies that Oliver…

Ingersoll sued Van Bokkelin in the supreme court in an action of trover for 50 hogsheads of tobacco, which Van Bokkelin had received of Ingersoll on storage, for account and subject to the order of Ingersoll, as expressed in a receipt given by Van Bokkelin.

Error from the supreme court. Johnson sued Bridge on a promissory note for $50, dated 12th March, 1823, payable to Sheldon Smith or bearer, on 1st June, 1824.

Error from the supreme court. ■ Packard and others brought an action of assumpsit in the supreme court against Hill and Haskins, on an instrument in writing given by them on the I5lh August, 1815, in these words: We hereby bind ourselves, our heirs, executors and assigns, to Messrs.

Error from the supreme court. Pinney sued Gleason in the Onondaga G. P. in an action of assumpsit, and declared upon three notes ; the first was in the following form : “ For value received, I promise to pay John Pinney seventy nine dollars and fifty cents, on the first day of August, 1822, in salt, at fourteen shillings per barrel, in good boating order. Liverpool June 30, 1820.” (Signed) Ara Gleason.

Error from the supreme court. McLaughlin came, by finding, to the possession of a certificate granted by the Waites, who were lottery ticket venders, in these words: “ Literature lottery, second class, new series, Waites’ office, 13, 27, 29.

Error from the supreme court. Parker endorsed a bill of exchange for the accommodation of D. H. Stone, drawn by Stone on Greele for $2500, dated 11th February, 1827, payable four months after date; Parker was induced to become such endorser on being shewn by Stone a letter from Greele to him bearing date New-York, 9th February, 1827, in these words: “ I have received 42 bundles medium as you mentioned. The imperial I think will sell readily.

Error from the supreme court. At the October term, 1826, of the supreme court, the relator George Tibbits obtained a rule that the canal commissioners and canal appraisers shew cause why a mandamus should not issue, commanding them to assess, appraise, allow and pay certain damages alleged to have been sustained by him in consequence of the erection of the dam across the Hudson, at the shop lock be= tween Troy and Lansingburgb, by means whereof the water is raised to the…

This was an action of assumpsit, tried at the Washington circuit in June, 1829, before the Hon. Esek Cowen, one of the circuit judges. The action was on a promissory note for $280, dated 23d October, 1827, payable to “ McGregor, Darling & Co.” and signed “Oliver Cleveland, Frederick Cleveland and Rufus Cleveland.” The signature of Oliver Cleveland was proved, and that the names Frederick Cleveland and Rufus Cleveland were in the proper hand writing of Rufus Cleveland.

<p>The government of the territory of Michigan have the power, under the law-organizing the territory, to incorporate a banking company.</p>

<p>This was an action of assumpsit, tried at the Albany circuit, in February, 1829, before the Hon. William A. Dues, then one of the circuit judges.</p> <p>The Mechanics’ and Farmers’ Bank in Albany, of which bank the plaintiff is the cashier, was the holder of a note for $380 drawn by the defendant, payable to and endorsed by Samuel Rathbone. On the 4lh April, 1828, when the note was about to fall due, an agent of the drawer and endorser called at the bank with two checks drawn by Samuel Rathbone on a bank in the city of New-York, one for $261,26, and the other for $120, and with two notes drawn by J. H. Rathbone, and endorsed by Samuel Rathbone for the same sums, and requested the cashier to receive the check for the smallest amount and the note for the largest amount, for the $380 note. The cashier declined doing so, but offered to receive the check for $261,26 and the note for $120, which the agent agreeing to, the check and note were accordingly received by the cashier and the $380 note delivered up. The check was protested for non-payment; the hole for $120 was paid. A suit was then commenced in the name of the cashier against the maker of the $380 note. The declaration contained a count on the note in the name of the plaintiff as endorsee, the note being described as bearing dale 31st January, 1828; it also contained the common money counts. The note was endorsed in blank by the payee, and was discounted by the bank; at the time it was delivered up it was the property of the bank, and had not been transferred to the plaintiff. It bore date on the 1st February, 1828. The contents of the note were proved by paroi after notice to the defendant to produce it.</p> <p>The defendant insisted that the plaintiff was not entitled to recover on the note on account of the variance, nor on the money counts, there being no privity of contract between the parties to this action. The judge ruled and so charged the jury, that the check not being paid, an action might be sustained on the note, and that the plaintiff having failed to prove it as described in the count, might recover under the money counts; and that it having been endorsed in blank, the action was sustainable in the name of the plaintiff without proving that it bad been transferred to him. The defendant excepted, and (jie jury faun(j a verdict for the plaintiff, which was now moved to be set aside.</p>

Demurrer to plea. In March, 1828, the parties entered into a written agreement, by which the plaintiff transferred to the defendant all his right to the first crop of ninety acres of land cleared by the plaintiff for General Morgan Lewis, and agreed to have the land cleared and fenced as fast as the defendant should require to sow, and to take all the young cherries and elders off of the land; and if he failed to clear and fence the land as fast as the defendant should…

Demurrer to declaration. The declaration contains three counts. In the first count, it is stated that the parties having been co-partners in trade, the partnership was dissolved on 8th January, 1827, when the defendants entered into a covenant ¿o pay off and fully discharge all the company debts due from the firm, and to hold and save the plaintiff harmless and indemnified from the payment of the same, and from all costs and charges thence arising.

Demurrer to pleas. The declaration is on a promissory note made by A. Plumb, W. H. Ward and H. R. Bender to the plaintiff for $2000, dated 13th December, 1826, and payable with interest one year after date. Ward and Bender are described in the note as sureties.

Error from the Cortland common pleas. Crofoot sued Allen in a justice’s court, and declared against him in trespass for entering his house in his absence and obtaining copies of papers for the purpose of commencing a suit against him. The defendant pleaded the general issue and license to enter the house. The cause was tried by a jury, who found a verdict for the plaintiff for $50, for which sum and the costs of suit (as stated in the return) the justice gave judgment.

This was an action of assumpsit, tried at the Albany circuit in September, 1829, before the Hon. William A. Duer, then one of the circuit judges. The steam-boat Sandusky was attached under the acts authorizing the arrest of ships or vessels for debts, &c. The plaintiff declared for work and labor in and about the building, repairing, fitting, furnishing and equipping the steamboat, and finding and providing her wish supplies, materials and other necessary things.

The action in this case was assumpsit. The defendant pleaded actio non accrevit infra, &c. The plaintiffs replied that a suit had been commenced by their testatrix for the same cause of action within six years after the accruing of the same, which abated by her death, and that within one year after the death of the testatrix this suit was commenced by the plaintiff; to which the defendants rejoined, denying the suit by the testatrix.

Error from the New-York common pleas. Elmendorf was the surety of one Taylor to an arbitration bond entered into by him with Harris, to abide the award of two arbitrators to be made by a certain day, and if they could not agree and determine and make their award, then to abide the award of an umpire, to be chosen by the arbitrators. Previous to the time limited for the making of the award by the arbitrators, they appointed by paroi an umpire.

Error from the Orange common pleas. The plaintiffs sued Stanley in a justice’s court for overflowing their lands by means of a dam of a cotton factory belonging to him. The defendant had a verdict before the justice.

This was an action of ejectment, tried at the Washington circuit in November, 1828, before the Hon. Esek Co wen, one of the circuit judges. The defendants occupied a basin, connected with the Champlain canal by a ditch through which saw-logs were passed from the canal, situate on a farm formerly belonging to one Simmons, and a portion of an inclined plane extending from a saw-mill of the defendants to the basin covered a part of the same farm.

<p>A court of special sessions have the power, and it is their duty to issue a second venire for a jury to try the defendant, if the first jury are discharged because they cannot agree upon a verdict.</p> <p>Continuing a cause over from Saturday to Monday is nol keeping the court open on the Sabbath, within the meaning of the statute.</p> <p>Stating an offence to have been committed in the fount of S., without adding the county in which the same is situate, is sufficient to give the justices jurisdiction ; the court taking judicial cognizance ofthe towns created bylaw.</p> <p>The supreme court cannot pass upon the question whether the finding by the jury before a court of special sessions was against or without evidence; and therefore, though the facts of the case be returned, they will riot look into them to see whether or not the jury erred.</p> <p>The proceedings of a court of special sessions will not be reversed for the cr. rors of the magistrate before whom the complaint was made.</p>

This was an action of ejectment, tried at the Seneca circuit in June, 1828, before the Hon. Enos T. Tiiroop, then one of the circuit judges. The plaintiff claimed to recover part of lot No. 93, Junius, under a conveyance to Gillet, bearing date 29lh May, 1809, executed by William Sagaharre, identified as the son and only child of Lieut. John Sagaharre, an Indian, to whom the lot was granted for military services during the revolutionary war.

Report of referees. Armstrong sued Percy in an action of assumpsit for failure of title to a horse sold to him by Percy. The cause was referred by consent of parties to referees. On the hearing, the following facts appeared; In August, 1825, the plaintiff bought a horse of the defendant and gave him in payment $55 in cash, and a horse valued at about $85.

This was ail action of assumpsit, tried at the New-York circuit in June, 1829, before the Hon. Ogden Edwards, one of the circuit judges. The declaration contained the common money counts. The plaintiff claimed to recover one sixth of the amount of monies received by the defendant under a policy of insurance on a brig in which they were jointly interested, the plaintiff owning one sixth and the defendant jive sixths of the vessel.

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

<p>This was an action of assumpsit, tried at the Livingston circuit in May, 1828, before the Hon. John Birdsall, then one of the circuit judges.</p> <p>The action was brought for the support and maintenance of Esther Ganson, the mother of the plaintiff, and the step mother of the intestate. It appeared when the father of the intestate married Esther Ganson, she was possessed of propetty to some considerable amount; in 1804, the father of the intestate bought a place and went into the business of tavern keeping; his sons, John the intestate and James the administrator, lived with him after they arrived of age and carried on business together. In 1811, a division was made of all the property between John and James, John receiving $1000 more than his brother, and agreeing to support his father and step mother, and accordingly did so until the death of his father, which happened about two years after the division of the property ; after the death of his father, John refused to continue to support his step mother, when her son, the plaintiff in this cause, took her to his house, and now brought his action against the administrators of John, to recover for her support and maintenance. On the trial of the cause an admission of James, the administrator, made since the death of the intestate, proving the whole case, was received in evidence, though objected to, but the point was reserved. Independent of that admission, the case was established by other evidence. The defendant claimed a nonsuit, which was refused, and the judge charged the jury to inquire whether a sum of money or other funds had come to the hands of the intestate for the support of Esther Ganson ; whether that fund had been expended; or whether, for a good consideration, the intestate had become liable for the support of Esther Ganson. If they found that no fund had been created, or that it had been expended, or that the intestate was not liable by contract for the support of Esther Ganson, then'he directed them to find for the defendants, otherwise for the plaintiff. The jury found for the plaintiff for ,f297,50, subject to the opinion of this court whether the action could be'mainiained in the name of the present plaintiff. The verdiet was now moved to be set aside.</p>

This was an action of assumpsit, tried at the Albany circuit in September, 1829, before the Hon. Willaim A. Duer, then one of the circuit judges. The cause was called as an inquest, the defendant not having filed an affidavit of merits. The declaration being on a promissory note given by the defendant to the plaintiff, the making of the note was proved.

Error from the New-York common pleas. Lawrence and Sneden attached the sloop Farmers’ Delight, under the acts authorizing the arrest of ships or vessels for debts, &c. The owner of the sloop appeared and pleaded ; first denying the indebtedness, and secondly that the sloop or vessel “is a small, open, undecked boat, used and employed within the port of New-York, to wit, within the city and county of New-York, and not engaged, used or employed in foreign trade, or in…

This was an action of assumpsit, tried at the Albany circuit, before the Hon William A. Duer, then one of the circuit judges. The plaintiff claimed to recover as the endorsee of a note for $115, bearing, date 21st April, 1828, payable at the Mechanics’ and Farmers’ Bank in sixty days, made by one Groat to the defendant, and endorsed by him.

Error from the Montgomery common pleas. This cause was brought into the Montgomery common pleas by an appeal from a justice’s judgment.

This was an action of ejectment, tried at the Madison circuit in March, 1829, before the Hon. Nathan Williams, one of the circuit judges.

Demurrer to declaration. The plaintiff declared on an agreement under seal, entered into between him and the defendants, wherein they are described as the administrators of the estate of J. Grow, deceased, and whereby they bound themselves to execute to the plaintiff a proper conveyance of a certain piece of land owned by their intestate, as soon as they could obtain a sale of the same under an order of the surrogate.

<p>Error from the Rensselaer common pleas. Herrick sued Stover in a justice’s court for an encroachment upon a private road, obtained by him over the lands of the defendant, under the statute regulating highways. The encroachment consisted in (he building of worm or Virginia rail fences, on each side of the road, so near to each other that in eleven places the width of the road was only 22 feet and xaT of an incii on an average, varying'from about 20 to 23 feet, instead of two rods. The justice rendered judgment for the plaintiff for six cents damages, and $1,81 costs. The defendant appealed to the Rensselaer common pleas, where the cause was again tried. The plaintiff produced a record of the road, containing a particular description of the place of beginning, the courses and distances, stating its extent across the lands of the defendant to be 19 chains and 74 links, and its contents to be 3 roods and 38 perches of land. The road was laid out by commissioners on the oath of twelve freeholders declaring it to be proper. The surveyor emploj'ed by the commissioners testified that he ran but one line; (hat the road was calculated to be two rods wide, measuring from the line run by him as a centre, and that only by estimating the road to be two rods wide, could the quantity of land taken amount to 3 roods and 38 perches: this evidence was objected to by the defendant, but received by the court. The encroachment by means of the fences was proved as above stated ; they are worm rail fences, the centres of which are placed on the exterior line of the two rods, angling alternately on the land of the defendant and on the road, having stakes at each angle. The road is on high ground, and subject to drifts in the winter season ; it was laid out in July, 1824; in September following the defendant built the fences, and in the ensuing month of October, the plaintiff required the defendant to remove them. The damages of the plaintiff were appraised at $100, including $10, the costs of the proceedings, which sum was paid to the defendant, who elected to use the road in common with the plaintiff.</p> <p>On the part of the defendant, it was proved by two of the commissioners who assessed the damages of the defendant by reason of the road, that they made their assessment on the assumption that rail fences were to be built, and that the cen^re 0f j[le fences was to be placed on the exterior of the two rods; that it was spoken of by the parties that rail fences were to be built, and that in the presence of the parties (hey made an estimate of the number of rails necessary for the building of the fences; and that on the assumption that the fences were to be placed otherwise than on the centre of the exterior lines of the two rods, they would have assessed the damages at a greater amount: this evidence was objected to, but received. The defendant further proved that 1 he fences were built as nearly on the exterior line of the two rods as possible, and that one of the commissioners of highways who laid out the road directed the fences to be built on the line; this direction was given to a son of the defendant, when the other commissioners and the plaintiff were present, but whether the plaintiff heard the directions, the witness could not say : this testimony was also objected to, but received.</p> <p>The court charged the jury that the width of the road was not designated by the record, and that (hey must decide whether it was intended to be two rods wide or not; if they should find it was to be of that width, there could be no doubt that the defendant had encroached upon it, and the plaintiff was entitled to their verdict for such damages as they should think proper to allow ; but if they believed that the commissioners of highways declared and intended at the time of the laying out of the road that the fences should be placed as they had been placed, and that the plaintiff so understood it and assented to the assessment of damages according to such understanding, and that the fences had been placed according to such assent and understanding of the parties, then they should find for the defendant. The jury found a verdict for the defendant, on which judgment was entered, The plaintiff having had a bill of exceptions signed, sued out a writ of error.</p>

This was an action of assumpsit against the endorser oí a promissory note for $350, dated at South Bainbridge, 29th June, 1827. The note was made in renewal of a previous note, endorsed by the defendant for the accommodation of the same maker.

This was. an action of ejectment, tried a.t the Erie circuit in April, 1830, before the Hon. Addison Gardner, one of the circuit judges. The plaintiff claimed the premises in question under a mortgage from the Bank of Niagara to the people of the state, bearing date the 10th September, 1818, registered in the office of the secretary of state the 25th September, 1819.

This was an action of assumpsit, tried at the Rensselaer circuit, in June, 1829, before the Hon. William A. Duer, then one of the circuit judges. The declaration was on a promissory note for $300 with interest given by the defendants to the plaintiff, dated llt'h August, 1828, and payable in six months; it also contained money counts. The defence was usury.

<p>The holder of a note payable to bearer, in the possession of the payee after due, cannot maintain an action upon it against the maker, if the payee be a mere agent, and the persons having the beneficial interest in the note forbid its payment to him.</p>

In 1821, Astor leased Vc.uxhall garden, in the city of New-York, to one Timothy Madden, for the term of 14 years from the 1st May, 1825, reserving an annual rent of $750; Madden engaging to pay all assessments imposed on the premises under the authority of the state or general government, or of the corporation of New-York.

William Wood, the appellant, and John B. Lasher, the former husband of Mrs. Young, were interested in three commercial adventures to the Mediterranean, carried ou in the years 1806-7, in the brig Seaman, commanded by Lasher, as master. In the last of the voyages performed the vessel was captured by armed boats under the Spanish flag, and carried into Mgesiras, where the vessel and cargo were lost, the vessel being driven on shore in a gale.

Knickerbocker filed his bill for a specific performance of a paroi contract by Harris, to purchase a lot of land.

Joshua Pell, junior, the appellant, a man of fortune, is the maternal uncle of Hannah Tredwell, the respondent. From 1804, when he became a widower, without children, until subsequent to 1812, he took a particular interest in the welfare of the family of his brother-in-law, and in the management of its con= cerns.