Volume 6 — Barbour's New York Supreme Court Reports

In EauiTY. The bill in this cause was filed to restrain the defendants from committing waste on a farm in Berlin, Rensselaer county, and for an account for waste already committed. The bill stated that Stephen Van Rensselaer leased the farm to Daniel Dennis on for the term of 60 years, by an indenture of lease dated June 23d, 1791.

This was a motion by the assignees of Loucks & Gray for a rule to compel William S. Bellinger, the owner of the judgment in this suit, to enter a satisfaction thereof, and to direct the sheriff to sell, on the execution issued upon the judgment, the individual property of the defendant, and not to sell the premises secondly described in the sheriff’s advertisement of sale.

This case came before the court on an appeal from a judgment of the Cortland county court, reversing the judgment of a justice in favor of the appellant for $>21,94 damages and costs. The declaration before the justice was upon a promissory note as follows: 11 South Cortland, Jan’y 22, 1842. For value received, I promise to pay Franklin Hatch or bearer thirty-five dollars and interest the first day of January next.

Ejectment for the recovery of lands situate in the county of Otsego. On the 22d of July, 1837, Jesse Rose mortgaged several parcels of land, comprising improved and unimproved lots, to the commissioners of the United States deposit fund for the county of Otsego, to secure the payment of a loan of $2000. In 1843, default was made in the payment of interest, and the premises were sold on the 6th of February, 1844, and bid off by Rose at $2296,69.

This was an action on the case for a libel. The defendant pleaded the general issue, and gave notice of special matter. The alleged libel was contained in a letter written by the defendant and addressed to the plaintiff, and sent to him by mail, after having been read to two or three persons by the defendant. The most material part of the letter was as follows: “ Sir: It is now discovered who had received the balance of account from George W. Cole.

This was an action of ejectment, commenced on the 28th of November, 1843. It was tried at the Washington circuit in June, 1848, before Justice Hand. The plaintiff claimed title as a purchaser under a decree of foreclosure in chancery of a mortgage given by William Burch to Lewis Fort, dated April, 1838, acknowledged on the 11th and recorded on the 13th of April, 1838.

<p>A mere levy upon personal property, by an officer, where it is not authorized by law, is, without either a sale or removal, a trespass.</p> <p>To maintain either replevin or trespass it is not necessary to show an actual, forcible dispossession of the plaintiff. Any unlawful interference with the property of another, or exercise of dominion over it, by which the owner is damnified, is sufficient to maintain either action.</p> <p>As a sheriff, by levying on goods and chattels which are not the property of the defendant in the execution is a trespasser, if the plaintiff in the execution directs the levy to be made, he is a trespasser also.</p> <p>The officer, in such case, is the plaintiff’s servant or agent, and trespass or replevin will lie against either of them.</p> <p>In an action of replevin against a sheriff for the act of his deputy, it is sufficient for the plaintiff to show that the deputy was a deputy of the defendant, and that he acted colore officii, in order to make his declarations in relation to his official acts, admissible in evidence against the sheriff.</p> <p>The declarations of a deputy sheriff, made within the scope of his authority and while the process is in his hands and in the course of execution, are to be taken as part of the res gesta, and bind his principal.</p> <p>Proof of a person’s being deputy sheriff, and of his advertising property for sale under an execution, as such, is sufficient to authorize evidence of his declarations, without proving the issuing and delivery of an execution to him.</p>

<p>To sustain an action for a malicious prosecution, the plaintiff must show that the prosecution originated in the malice of the defendant, without probable cause.</p> <p>Proof of express malice is not enough, without showing, also the want of probable cause.</p> <p>What amounts to probable cause. '</p> <p>The question of probable cause does not turn on the actual guilt or innocence of the accused, but upon the belief of the prosecutor, concerning such guilt or innocence.</p> <p>The want of probable cause cannot be inferred from express malice, but malice may be implied from the want of probable cause.</p> <p>The question of probable cause is a mixed question of law and fact. Whether the circumstances alleged, to show probable cause, or the contrary, arc true, and existed, is a matter of fact; but whether, supposing them true, they amount to a probable cause, is a question of law.</p> <p>Where there is a conflict of evidence, and the credibility of evidence is to be passed upon, it is proper for the judge to submit it to the jury to find whether the facts relied on as evidence of probable cause, or of the want of probable cause, are true. And, if requested by the defendant's counsel, it is the duty of the judge to state to the jury his opinion, distinctly, whether probable cause is or is not established, if they find the truth of the facts relied on by the defendant as evidence of probable cause.</p> <p>If a party lays the facts of his case fully and fairly before counsel, and acts, in good faith, upon the opinion given him by such counsel, (however erroneous that opinion may be,) it is sufficient evidence of a probable cause, and is a good defence to an action for a malicious prosecution, or for a malicious arrest.</p> <p>But in such a case it is properly a question for the jury whether such party acted bona fide on the opinion given him by his professional adviser, believing that the plaintiff was guilty of the crime of which'he was accused, or that he had a good cause of action against the plaintiff.</p> <p>Good faith merely, in making a criminal charge against another, is not sufficient to protect the party from liability. There must be a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person charged was guilty of the crime of which he was accused, to make out such a probable cause as will he a defence to an action for a malicious prosecution.</p>

In Equity. This was an appeal from a decree of Vice Chancellor Cushman, setting aside a general assignment made by the defendant Hart, to the defendant Livingston, in trust for the payment of the debts of Hart. The bill was a creditor’s bill against Hart as a judgment debtor; and Miller was made a party to the bill on the ground that he was a debtor of Hart, or had in his possession property, or choses in action, in which Hart had an interest.

<p>The delivery of a deed to the county clerk, for record, and for the use of the grantee, is a perfect delivery by the grantor; and upon an acceptance of such deed by the grantee, it takes effect from the time of such deliveiy.</p> <p>Parol evidence will not be received for the purpose of engrafting upon a deed any condition, limitation, or reservation inconsistent with its terms.</p> <p>Accordingly, held that a trust could not be established between the grantor and grantee in a deed absolute on its face, by evidence of a parol message sent to the grantee, by the grantor, after the delivery of the deed, informing him of such delivery and expressing a hope that the grantee would take the property and sell it to pay the grantor’s debts, and that if there was any balance left, the grantee would let him have it in money, or lands in some other place; such message not being simultaneous with the delivery of the deed, and a part of the same transaction, and the messenger not being the agent of the grantor, and no assent or dissent on the part of the grantee to the terms and conditions mentioned being required.</p> <p>The confessions and declarations of parties are always received with distrust, and should be closely scrutinized. Per Allen, J.</p> <p>Under the statute of frauds parol evidence is inadmissible to establish a trust respecting real estate. And the doctrine of part performance will not be applied, and held to take such a trust out of the statute.</p> <p>The acts of part performance which will estop a party from insisting upon the statute of frauds must be on the part of the person asking a performance, and not by the person insisting upon the statute.</p> <p>To constitute a part performance of a parol agreement which will estop a party from insisting on the statute of frauds, the acts of such party must be so clear, certain, and definite in their object and design, as to refer exclusively to a complete and perfect agreement of which they are a part execution. And they must be a part performance of the precise agreement set up.</p> <p>The grantor in a deed containing covenants of warranty is estopped from claiming a resulting trust in the premises conveyed, for his own benefit. Even if he might so far explain his own deed as to show a non-payment of the purchase money, he can not, by parol evidence, do away with his covenants of warranty. Where a deed contains an express declaration that the conveyance is for the use of the grantee, and it is made for a good and valuable consideration, there can be no implied or resulting use or trust in favor of the grantor.</p>

<p>This was an action of ejectment, tried at the Oneida circuit on the 26th day of September, 1845, before his Honor Philo Gridley, Circuit Judge. The declaration contained two counts, in each of which the plaintiff claimed in fee an equal undivided fourth part of the easterly part of lot No. 60, in Gage’s Patent, situate in the town of Deerfield, in the county of Oneida, and containing one hundred acres, &c. The plea was the general issue, and upon the trial the defendant’s counsel admitted that the defendant was in possession of the premises described in the declaration at the time the declaration was served on him in this cause. John A. Staring, a witness on the part of the plaintiff, testified that he was a brother of the plaintiff; that his father, Adam Staring, died in June, 1812, at Openheim, in the county of Montgomery, where he owned real estate; that in 1811 Adam Staring bought of one Tedder the farm now occupied by the defendant, and took possession thereof in the spring pf 1812, and planted a portion of the land; that Tedder, by some arrangement with Adam Staring, continued to occupy a part of the farm until the ensuing winter; that at his death Adam Staring left Nelly Staring his widow, and four sons, viz. Frederick A., Philip A., John, and the plaintiff, Henry A. Staring, and four daughters, Betsey, Nelly, Peggy and Caty; that Peggy died several years before, intestate and without issue, and Nelly died in 1840; that Philip died several years ago, leaving children who are now living; that after the death of Adam Staring, the witness and his brothers harvested the crops and cut the grass on the lot, except such portions as belonged to Tedder; that-soon after their father died Frederick and Philip A. Staring went on to said lot, and one or both of them continued to occupy it until within eight or ten years since, when the defendant took possession. The plaintiff’s counsel then offered in evidence a paper writing which he alleged was the original will of the said Adam Staring, bearing date June 4th, 1812, which purported to have been duly executed in the presence of three witnesses, who subscribed it as such, and under whi&h the plaintiff claimed title to an undivided fourth of the lot in question, as devisee. The following endorsement and certificate were upon said will: “Registered in the surrogate’s office of the county of Montgomery, in register of probate No. 2, page 389, &c. the 16th day of June, 1814. James Lansing, surrogate.” “ Be it remembered that on the 16th day of June, in the year of our Lord one thousand eight hundred and fourteen, personally appeared before me James Lansing, surrogate of the county of Montgomery, Luther Pardee, who being duly sworn deposeth that he saw Adam Staring sign and seal the foregoing testament, by making his mark thereto and acknowledging the seal, and heard him publish and declare the same as and for his last will and testament; That the said Adam Staring was at the time thereof of sound, disposing mind, memory and understanding. That this deponent subscribed his name thereto as a witness to the execution thereof, in the presence of the said Adam Staring, the testator, and that he at the same time saw John Staring and Reuben Ford, respectively, subscribe their names thereto as witnesses to the execution thereof, also' in the presence of the said testator, James Lansing.” The reception of said will as evidence was objected to by the defendant’s counsel, on the ground that before the revised statutes there was no law authorizing a will that had been proved before á surrogate, and duly certified by him, to be given in evidence on a trial at law. The circuit judge decided that said will could not be received as evidence, under such proof, and that it must be proved by a subscribing witness, if living, &c. in order to be evidence. To which decision the plaintiff’s counsel then and there excepted, and then showed that one of the other witnesses, John Staring, was dead, and that Reuben Ford, the other, resided in Canada, and insisted that the will had been proved by the only witness who could be called to prove it; and he had testified to all the necessary facts, as appeared by the surrogate’s certificate. It was admitted, by the plaintiff’s counsel, that Luther Pardee, whose name as a witness was subscribed to said will, was now living and resided at Oswego, in the county of Oswego. But his honor held the proof insufficient, and rejected the will, to which decision the plaintiff’s counsel excepted. The plaintiff’s counsel then offered said will in evidence, (without proof of its execution,) as an ancient will or deed, and proposed to show that all who had occupied said lot, since the death of Adam Staring, and down to the death of Nelly, his widow, had done so in subservience to the provisions of said will, and had acknowledged and recognized it as the common source of their title. And as evidence of such proposed facts in connection » with said will and the evidence already given,- the plaintiff’s counsel proved the due execution óf two instruments under seal, and offered them as evidence, to wit. an agreement between Frederick A. Staring, Philip A. Staring and John Staring, dated May 18th, 1817. Also an agreement under seal between Nelly Staring, Frederick A. Staring and Philip A. Staring, dated June 24th, 1817. The defendant’s counsel objected to the will being given in evidence as an ancient will, without proving its due execution, and also to the agreement and other evidence so offered being sufficient to authorize it to be so read as to enable the plaintiff to recover. His honor, the circuit judge, thereupon decided the evidence offered was inadmissible, and rejected the said will and agreement so offered as evidence, on the ground that there appeared to be a living witness to the will, within the jurisdiction of the court, and that from the death of Nelly Staring, the widow, in 1840, back to the death of the testator, was less than forty years, and there was no evidence, (though an attempt had been allowed and made to prove the fact,) of the defendant’s occupation or claim under the will, though it was admitted he had been in possession several years. To which decisions and rejections the plaintiff’s counsel excepted. And no further evidence being offered the circuit judge directed the clerk to enter a nonsuit, which was done accordingly. And to this direction the plaintiff’s counsel also excepted; and upon a bill of exceptions the plaintiff now moved for a new trial.</p>

This was an action of ejectment, tried at the Oneida circuit in July, 1848, before Justice Gridley. The declaration contained three counts. In the first count the premises were claimed as belonging to the plaintiff Pearl Kellogg, in fee. In the 2d count the plaintiffs Lester Barker, Rufus Mills and Alonzo Bradner claimed an undivided seven-elevenths and two-thirds of one-eleventh part of the premises, in fee.

Demurrer to replication. The declaration was in replevin for one wagon, one plough, one cow, and other property. The defendants pleaded separately.

<p>The verdict of a jury should be set aside when there has been no evidence to support it.</p> <p>When there is a disputed question of fact, and evidence has been given on both sides of such question, the court will not disturb the finding of the jury. But when upon any one question which is decisive against either party, there is evidence on one side of such question and none on the other, and the verdict has been given for the party who has given no evidence upon the point in question, the verdict will be set aside.</p> <p>And if the county court does not reverse a judgment of a justice, founded on such verdict, it is the duty of the supreme court to correct the error.</p>

Appeal, by the plaintiffs, from a judgment of the county court of the county of Onondaga. The facts sufficiently appear from the opinion of the court.

<p>Error to the common pleas of Madison county. The facts are stated in the opinion of the court.</p>

In Equity. The bill in. this cause alledged that in May, 1802, Jonathan Wales and wife, being the owners of a certain piece of land in the Oriskany patent, embracing a mill-privilege, on which C. Wales had previously erected a forge for manufacturing iron, and two blacksmith’s bellows, which were then in operation, sold and conveyed to Alfred Smith and others certain other premises, describing them, “ with the privilege of digging from the head of said race to said land for…

<p>In Eqjjity. This was an appeal, by the defendants, from a decree made by a justice of this court at a special term. The decision appealed from is reported in 2 Barbour’s Sup. Court Reports, 300, where the facts in the case are fully stated.</p>

In Equity. This was an appeal from an order made at a special term of this court, dissolving the injunction that had been issued, and denying the motion for the appointment of a receiver.

Assumpsit, tried at the New-York circuit in October, 1847, before Justice Morehouse. The plaintiff recovered a verdict for $47, and the defendants, on a bill of exceptions, moved for a new trial.

Demurrer to the first count of the plaintiff’s declaration. The declaration alledged that on the 2d of December, 1846, the defendant agreed to charter unto the plaintiff, and the plaintiff agreed to take of and from the defendant, the ship Jessore, of New-York, at that time on her passage from Havre to New-York, having cleared from Havre about the 24th of September; to load with a full cargo of flour from New-York to Liverpool or London, at the option of the plaintiff, for…

In Equity. This was an appeal by the plaintiff from a decree of the late assistant vice chancellor of the first circuit. The bill was a creditor’s bill, filed to obtain satisfaction of a judgment obtained by one Nathaniel W. Smith, in May, 1845, against the defendant Tompkins for $1004,30, which judgment had been assigned to the plaintiff. The defendant Blunt was made a party to the bill under the following circumstances.

<p>This was an appeal by the defendants from an order made at a special term of this court, denying a motion on the part of the defendants, to dissolve an injunction, and granting the plaintiffs’ motion for a receiver. The complaint was filed by the plaintiffs as judgment creditors of Charles M. Pelton, against the said Charles M. Pelton, George P. Pelton and William H. Bradley, to set aside a sale made by Charles M. Pelton, to George P. Pelton, of all his property, and an assignment made by him to Bradley, of the securities taken from George P. Pelton on such sale, for the benefit of certain specified creditors of the assignor. The facts are stated in the opinion of the court.</p>

<p>In Eq.uity. This was an appeal, by the plaintiffs, from a decree of the Hon. A. L. Robertson, late assistant vice chan- 1 cellor of the first circuit. James I. Roosevelt, being a man of / large estate in the city of New-York, and having one daughter, I married to the defendant Michael Burke, on the 30th of April, / 1833, bought a house and lot in that city, in the vicinity of his \ own residence, taking the title to himself. He also repaired and / furnished it, and permitted his daughter to occupy it as tenant at will, under him. After occupying it a few months she aban- i doned it. Afterwards, and on the 9th of January, 1834, Roosevelt (the father) executed a letter of license which recited that he was the owner of the house and furniture which had cost him $10,987, and that he was desirous of providing a suitable residence for his daughter, free from the control or debts of her husband, and declared that in consideration of the premises he granted and allowed her to enter upon and occupy the house ^ and furniture during his pleasure, but not to extend beyond his life or hers; and it was provided that nothing therein contained should divest the father of the possession of the house and furniture, and that the interest on the above sum, and the deterioration of the house and furniture, and all future advances for her, should be charged to her as a debt, and be deducted from her portion of his estate after his decease. This instrument, formally sealed and executed, was approved by the daughter and delivered to her. By virtue of it she, on the day of its date, again went into the occupation of the house, and (with an intermission of a year, during which she and her husband took board,) continued to occupy it until her death on the 12th of Feb. 1844. At the time of purchasing the house in 1833, Roosevelt had made his will, in which he devised to his daughter $40,000. On the 11th of February, 1837, he made another will revoking former ones, in which he devised to his daughter $60,000. He died in August, 1840. After his death, a paper was found by one of his distant relatives, among his clothes, in the drawer of a bureau in which he was not in the habit of keeping his papers, which was in the following words:</p> <p>■ “ In consideration of one dollar to me in hand paid, I do here-</p> <p>assign and convey in trust to Cornelius V. S. Roosevelt, James I. Roosevelt junior, Peter Augustus Jay, and Isaac Caxow, my house and lot of ground with the furniture therein, known as house No. 116 in Greenwich-street, next door to the corner of Carlisle-street in the city of New-York, containing about twenty-three feet front and rear and about fifty-four feet deep, to have and to hold the same for the use and support of my daughter Catharine Angelica and also her children, with full power to them my said trustees, or a majority of them, to sell and convey the same and convert the proceeds into such other funds as they may deem most advisable for the purposes aforesaid. In witness whereof I have hereunto set my hand and seal this second day of November, 1836.</p> <p>Signed and sealed in presence of us,</p> <p>R. G. Palmer, Lewis McMullen.</p> <p>James I. Roosevelt.’í [l. s.]</p> <p>(The following was attached to it after the grantor’s death:) “ City and county of New-York, ss.: On this 28th day of September, 1840, before me personally appeared R. G. Palmer, satisfactorily proved to me to be the subscribing witness to the foregoing instrument by the oath of William H. Roosevelt, who being duly sworn says that he knows him to be such person, and that he resides in the city of New-York; and the said R. G. Palmer being duly sworn, says that he is acquainted with James I. Roosevelt, knows him to be the same individual described in and who executed the foregoing instrument—that he saw him execute the same, and that he acknowledged that he executed the same for the uses aiql purposes therein mentioned ; and that he the said witness resides in the city of New-York, and that he is a subscribing witness thereto.</p> <p>W. R Beebe, Comm’r of deeds,” &c.</p> <p>“ Recorded in the office of register of the city and county of New-York, in liber 406 of Con’s, page 633, September 28, at 40 min. past 1 P. M.”</p> <p>This paper, dropped on the floor from among the clothing of Mr. Roosevelt, as the person above mentioned was removing them from the drawer, was picked up by her and laid upon the mantel-piece, where it remained unnoticed for several days, until a younger brother, Wm. H. Roosevelt, accidentally found it there, took possession of it and delivered it to Mrs. Burke. He took it to a commissioner of deeds and had it proved by one of the subscribing witnesses, and then left it in the register’s office to be recorded. Neither of the subscribing witnesses knew the nature of the paper which they had thus attested, nor was the existence of the paper known to any one but the father until it was thus accidentally discovered; except that W. H. Roosevelt had seen it among his father’s clothes in the drawer of the bureau about two years before his father’s death. The whole of the paper, except the signatures of the witnesses, was in the hand-writing of the grantor; but the fact that it had been executed by him was not disclosed by him to either of the grantees named in it. Three of the grantees were the same persons who were afterwards named by him as executors of his will and trustees for the ¡$60,000 which he had given by his will to his daughter and her children, two of them being his sons and residuary devisees. The daughter left her surviving, her husband and two children. The bill in this cause was filed by the residuary devisees against Michael Burke and his two infant children, and Isaac Carow, to have the paper of November, 1836, given up and cancelled and declared void; the husband and his children continuing to occupy the house and furniture, and claiming to own it under that, paper.</p> <p>On the part of the defendants it was given in evidence that in March, 1840, Mrs. Burke requested her father to purchase a house in Walker-street for her, instead of that in Greenwich- j street, and he declined, saying he wished her to remain in Green- S wich-street, as he had bought a house for her there and he did ' not like to make out any more papers. He wished her to re- f main there and have the house repaired; and after that he ' made extensive repairs oh it, at a cost of at least $1000. It i was also proved that Mr. Roosevelt had frequently said he had H bought the house for his daughter and intended it. as a perma- J nent residence for her. v X</p> <p>The assistant vice chancellor made a decree establishing the deed of the 2d of November, 1836; and declaring that on the death of Mrs. Burke the premises therein mentioned passed to her children, the infant defendants, in equal proportions, and directing a reference to inquire whether it was for the interest of the infants that the same should be sold, &c.</p>

The action was assumpsit. The plaintiff declared upon the money counts, and gave notice that he would give in evidence a note upon which he had paid moneys as surety for the defendant, viz. the sum of §1122,50 and interest from the 1st day of October, 1847. The note was as follows: 11 §2000. For value received, we jointly and-severally promise to pay Wm. Davis, his heirs or assigns, two thousand dollars one year from date at seven per cent interest.

This was an action of assumpsit, brought by the plaintiff to recover the amount, of a promissory note for $1000 and interest, given by the defendant Radcliff and four others.

The respondents, in then return, set forth the various proceedings for the construction of the sewer and the assessment of the expenses, at length.

This action was brought by the plaintiffs as executors of Elizabeth Jones, deceased, to recover moneys alledged to be due to the testatrix in her lifetime. The cause was commenced in 1844, and was tried at the Livingston circuit in October, 1845, and a verdict rendered for the defendant. The plaintiffs made a case and moved for a new trial at the general term held in Allegany county, in May, 1848, which motion was denied, and the defendant perfected judgment on the verdict.

<p>A principal is not liable to one agent or servant, for an injury sustained by him in consequence of the misfeasance or negligence of another agent or servant of the same principal, while engaged in the same general business or employment.</p> <p>Accordingly Meld, that a person in the employ of a rail-road company, as a track-man, could not maintain an action against the cbmpany to recover damages for injuries sustained in consequence of being rub over by a train of cats belonging to the defendants.</p> <p>The rule of respondeat superior does not spring directly from principles o'f natural justice and equity, except as those principles grow out of and are’Connected with, principles of expediency and public policy. Per PratI', J.</p>

This was an action of assumpsit upon two promissory notes dated Oct. 3,1842, signed by Dillaye, Hayden & Co. and payable to the order of the plaintiff, six months after date; one of which was for $108,35, and the other for $108,36. The defendant Dillaye pleaded the general issue, and payment, and gave notice of set-off. The other defendants did not appear. The cause was tried at the Madison circuit in Feb. 1849, before Justice Gridley.

Action for an assault and battery and false imprisonment. The defendant Tomlinson pleaded the general issue. The defendant Ney pleaded the general issue, with a further plea of justification. In January, 1846, the plaintiff was arrested by a constable upon a warrant issued by the defendant Tomlinson, a justice of the peace, upon the complaint of Ney, a constable, for an assault upon him while performing his duties as a public officer.

The action in the court below was brought upon an appeal bond; and the plaintiff was nonsuited because he had not issued' execution on the judgment against the appellant, within thirty days after the rendition of the judgment against him. The execution was in fact issued thirty-one days thereafter.

<p>Where, in an action against a party for a forfeiture of a contract executed in duplicate, the copies produced by the respective parties vary in their phraseology, the court will follow the copy which is in the defendant’s hands and by which he was governed in malting his payments.</p> <p>Where, by the terms of a contract, dated Dec. 34th, for the sale and purchase of land, the payments were to be made as follows: “ $100 on the date hereof, $100 by the 1st of May next, and the residue to be paid in ammal payments of $100 each, with interest on the whole sums unpaid from the date hereof,” Held that the “ residue” was payable in annual payments computed from the 1st of May, and not from the date of the contract.</p> <p>Although, as a general rule, money payable at no particular place must be tendered personally to the person to whom it is payable, yet where, on the day previous to the time when a payment upon a contract became due, the debtor made an ineffectual attempt to find the creditor, but his house was closed, and nobody at home: Held, that a tender made at the house of the creditor, on the day, to his family, he being absent from home and out of the county, was valid; the creditor being chargeable with notice that the money would be tendered at the day, and it appearing from the circumstances, that the creditor, by his voluntary absence, &c. intended to render it impossible for the debtor to make a valid payment on the day it became due.</p>

This was an action on the case, tried at the Jefferson circuit in December, 1848, before Justice Allen, when the jury found a verdict for the plaintiffs for $250. The defendants having filed a bill of exceptions, moved for a new trial. All the facts necessary to an understanding of the decision are stated in the opinion of the court.

<p>In expounding a written instrument, the antecedent and surrounding circumstances are competent evidence, for the purpose of placing the court in the same situation, and giving it the same advantages for construing the instrument, as is possessed by the parties who executed it.</p> <p>K. and B. entered into a written contract, by which K. leased a farm and personal property to B. for one year, at a specified rent. And it was covenanted and agreed by K. that in case B. should “ at any reasonable time” pay to K. the interest on the money paid by K. towards the property, and secure the said purchase money, he would deed and convey such property to B. Under this agreement B. continued in the possession ond occupation of the property, paying the stipulated rent, for several years; the agreement being continued from year to year by implication. On a bill by B. against K. to compel a specific performance of the contract to convey the property to him; Held that the “ reasonable time” within which B. had the right to pay for or to secure the payment of the purchase price, and to have a conveyance, did not expire with the current year after the date of the contract; but that the rights of the parties were to be adjudged as though a new agreement, with the clause concerning the sale of the property, had been made each year, or at the expiration Of the period covered by the preceding one; especially as K. had stood by and seen the farm rendered more valuable by permanent improvements, without setting up any claim that the condition conferring on B. the right to purchase had become forfeited.</p> <p>Held also, that the execution of the new agreement between the parties, omitting the clause giving to B. the right to purchase the property, did not cut off the right of B. to avail himself of that provision in the former agreement, where it appeared that, so far as that provision was concerned, the old contract was, by the express agreement of the parties, still to remain in force.</p> <p>The cases in which a legal tender is indispensable, notwithstanding a refusal to receive the money, and a general refusal to perform the contract, on other grounds, are very few. Per Gridlby, J.</p> <p>The general rule is that a strictly legal tender may be waived by an absolute refusal to receive the money; on the principle that no man is bound to perform a nugatory act.</p> <p>Where there is a mutual obligation on a purchaser to pay or secure the purchase price, and on the vendor, to convey the property purchased, an offer and readiness to perform, on the part of the purchaser, is enough; especially where the vendor refuses to convey at all.</p>

<p>Where S. and G. made a promissory note, payable to the order of N. D. & Co., and before delivering it to the payees, the makers, at the request of N. D. & Co. procured it to be indorsed by B., who indorsed it for the accommodation of S. . & G., and for the purpose of giving them credit with the payees; whereupon N. & D. took the note and advanced property thereon to the makers, and subsequently took it up, and indorsed the same to E.; Held, in an action upon the note, in the name of E., for the benefit of N. D. & Co., brought against B. “ as a party to the note,” that B. could not be made liable as guarantor or maker of the note.N'</p> <p>Held also, that B. was not liable to N. D. & Co., in an action brought upon the note as indorser thereof</p> <p>A first indorser can not maintain an ¿&M|P^iinst the second, “ as a party to the note,” either directly or indirecSp^’'</p> <p>A person who guaranties a note is in no sense a party to the note.</p> <p>A guaranty is a special contract, and must be specially declared on.</p> <p>The law will not imply a contract of guaranty when the evidence shows that the defendant undertook to be bound only as indorser.</p> <p>When parties have agreed upon an express contract, the court will not vnvplnj one of a different legal effect and obligation. Per Gridley, J.</p> <p>Previous to the indorsement of a negotiable promissory note, the property of the note is in the payees; and until they have indorsed it to some other person and thus transferred the legal title to him, no indorsement by such person will be operative as such, or convey any title to the note, so as to enable the holder to sustain a suit thereon, in his own name.</p> <p>f If the payees of a note indorse the same, generally, after it has been indorsed by f another person, they will be liable as first indorsers, and the other person as j second indorser.</p> <p>In an action by the holder of a note against the second indorser, it is a perfect defence to show that the plaintiff has paid no consideration for the note, but has received it from the payees merely to collect for their benefit.</p> <p>Although there is a strong analogy between an indorsed note and a bill of exchange, yet an indorsee of an ordinary promissory note can not declare upon it as an accepted bill of exchange, and recover.</p>

<p>The denial of a motion to amend, where the law reposes a discretion in the judge, is not an appropriate ground of exception.</p> <p>To sustain an exception for a refusal of the judge, at the trial, to allow an amendment of the complaint, the party must show a clear case of unquestionable right.</p> <p>Money paid in satisfaction of a valid judgment, which stands unreversed, can not be recovered back, on the ground that the execution issued upon the judgment, by virtue of which the defendant’s goods were seized, was irregularly issued ; both parties at the time supposing it to be regular.</p> <p>After a judgment has been recovered in a court of common pleas, and an execution issued to another county and levied upon the defendant’s property there, without the filing of a transcript or the docketing of the judgment in that county, the court in which the judgment was recovered has power to order a transcript to be filed, and the judgment to be docketed, in the county where the defendant’s property was seized, nunc pro bwnc.</p> <p>Such a defect in an execution is amendable, and the execution will stand good, and afford a justification to the sheriff, until it is set aside by a court of competent jurisdiction.</p>

Demurrer to declaration. This was an action on the case. The declaration stated that the defendants were the owners or possessors of a certain railroad running near and contiguous to the lot of land belonging to the plaintiffs, as hereinafter mentioned, upon which railroad the defendants were accustomed to run their cars and locomotive engines; and that the said plaintiffs were the owners of a certain piece or parcel of land situate and being in the city of Schenectady, and…

<p>What is sufficient evidence of adultery, in a suit for a divorce.</p>

<p>The act of April 11th, 1843, to exempt certain property from distress for rent, and sale on execution, applies only to cases in which the debt was contracted after that statute took effect; and does not extend to debts contracted previous to its passage.</p> <p>Accordingly held that the act did not authorize an execution issued upon a judgment recovered for the purchase price, of property sold previous to the passage of that act, to be levied upon such property.</p>

Motion to set aside the report of a referee. This was an action of assumpsit. The declaration contained the common money counts, alledging promises to the plaintiff. There was no count on promises to the testator. Annexed to the declaration, was a copy of a promissory note, and a notice that it constituted the only cause of action. The following is a copy of the note. “$878,11. New-York, Sept. 14,1844.

Covenant upon an agreement, which is set out at length in 5th Barbour’s Sup. Court Rep. 162, where will be found a report of this case when it was before the court on demurrer to the plaintiff’s declaration. The facts set forth in the pleadings, on which the questions now decided arose, are sufficiently stated in the opinion of the court, which follows.

<p>In Equity. On the 16th of November, 1835, Horatio W. Orcott recovered a judgment before John Dewey, Esq. a justice of the peace of Greene county, against William Burroughs, for damages and costs $25,20, and on the same day Orcott assigned the judgment to John Van Vleck, Esq. On the 24th of the same month, an affidavit was made and bond executed in behalf of Burroughs, and a certiorari allowed, for the purpose of removing that judgment to the court of common pleas of Greene county. On the 29th of November, 1835, William Burroughs died. The certiorari and accompanying papers were served on the justice on the 7th December, 1835, and, together with the return of the justice, were filed in the county clerk’s office on the 14th of December, 1835. Letters of administration were granted to the administrators of William Burroughs, deceased, on the 7th of March, 1836. In January, 1841, Mr. Van Vleck made an affidavit, and served on K. Van Dyke, Esq. the attorney who brought the certiorari, a copy thereof, with notice of motion, and on the 9th of September, 1841, made a motion in the court of common pleas, which was opposed by Van Dyke by affidavit. On that motion a rule was entered in the court of common pleas directing the writ of certiorari to be dismissed with costs. The bill of costs for arguing the certiorari was taxed at $20,21, and the costs of the motion to dismiss the same were taxed at $8,26. No order for creditors to exhibit claims was ever granted by the surrogate of Greene county, to the administrators.</p> <p>On the 16th of July, 1844, on a petition presented by Mr. Van Vleck, to the surrogate of Greene county, a citation was issued to the administrators of William Burroughs, calling on them to account, returnable 19th of August, 1844. On that day Mr. Van Vleck appeared, by his counsel, and the administrators appeared by K. Van Dyke, Esq. as their counsel, and the proceedings were adjourned from time to time until the 9th of September, 1844, when the surrogate proceeded to hear the proofs and allegations of the parties. The administrators then admitted that there were sufficient assets in their hands to pay Van Vleck’s claim and costs. The facts above stated were then proved before the surrogate. The cause was then submitted by the parties on written points. In the points submitted by the administrators they claimed, among other things, that the demand in question was barred by the statute of limitations. The surrogate decreed that the claim of Van VIeck, on the judgment, and the costs of arguing the certiorari, were not a legal claim against the estate of Win. Burroughs, and rejected the same, but directed the costs of motion, $8,24, to be paid by the administrators, out of the estate. The surrogate also charged Van VIeck with the surrogate’s fees, being $14,25, and also with his attorney’s costs, and witnesses fees, $44,67, and directed the administrators to pay the costs of the attorney, and charge them to the estate.</p> <p>This decree was made on the 26th of December, 1844. Van VIeck appealed from it to the late court of chancery.</p>

<p>In Equity. This was an appeal from a decree made in the late court of chancery by the vice chancellor of the 8th circuit. On the 22d of April, 1835, Russell S. Brown and Rodman Starkweather confessed a judgment in the supreme court of this state to Richard S. Williams, on a bond and warrant of attorney, for forty thousand dollars of debt, and #18,79 costs, which judgment was entered and docketed on the 14th of October, 1835. This judgment was given to secure an indebtedness then existing to, and advances thereafter to be made by, the firm of Richard S. Williams & Go. On the 15th of September, 1837, Russell S. Brown executed to George Truscott and John C. Green a bond conditioned to pay #50,000. And to secure the same said Brown and Rodman Starkweather and wife executed to Truscott and Green a mortgage on real estate in the-city of Buffalo. The mortgage was recorded on the 16th of October, 1837. This mortgage was assigned to Janet Stretch, and was foreclosed by bill in chancery. Pending the foreclosure suit Brown died, leaving a will, by which he devised his property to Starkweather. The suit was revived, and a decree for sale made on the 9th of December, 1845. After the death of Brown, Williams revived his judgment, by scire facias, on the 1st of January, 1845. He afterwards assigned said judgment to King, the defendant, who issued an execution thereon, and sold the premises in question, (being the same real estate covered by the mortgage,) on the 4th of August, 1845, which were bid in by the defendant King. Neither Williams nor King were made parties to the foreclosure suit. It was proved that at all times after the giving of the judgment there was due to Richard S. Williams &• Co. over $20,000 for advances made to Brown & Starkweather. That on the 20th of February, 1839, on a settlement between Williams & Co. and Brown &. Starkweather, there was found due to the former $22,742,26, and that there was over $30,000 due on the judgment when it was assigned to King. Most if not all the indebtedness due upon the judgment, at the time of the assignment, accrued for advances made after the 16th of October, 1837.</p> <p>The plaintiffs prayed that their mortgage might be declared a prior lien; that the judgment might be adjudged void as against the claim of the plaintiffs; and that the defendant might be perpetually enjoined, «fcc. &c.</p> <p>The cause was heard on pleadings and proofs before the vice chancellor, who made a decree dismissing the bill with costs; from which decree the plaintiff appealed.</p>

<p>be has no power to decide upon the validity and amount of a cldim an estate, upon the petition of a creditor praying for a decree directing its payment, when such claim is disputed by the executor, and the right of the surrogate to make such a determination is denied. A surrogi</p>

This was an action of trover to recover the value of a canal boat. It was tried at the Sullivan circuit, in September, 1846, before Barculo, Circuit Judge.

<p>As against the mother of a bastard child, the putative father has no legal right to its custody. The mother, as its natural guardian, is bound to maintain it, and is entitled to the control of it.</p> <p>The office of a writ of habeas corpus is to inquire into the ground upon which any person is restrained of his liberty, and, when it is found that the restraint is illegal, to deliver him therefrom.</p> <p>In the case of a child too young to be capable of determining for itself, the court or officer assumes to determine for it, and in doing so, the welfare of the child is chiefly, if not exclusively, to be had in view.</p> <p>Upon habeas corpus to determine as to the custody of an infant, all the court is bound to do, ex debito justitim, is to set the infant free from improper restraint. Whether it will deliver it over to any body is left to its discretion.</p> <p>And whether the court, or officer, exercises that discretion wisely, or not, is a question which can not be reviewed upon certiorari.</p>

Trover for a quantity of wheat, tried at the Steuben circuit in November, 1846, before H. Gray, circuit judge. On the trial the following facts appeared: On the 24th of December, 1842, Uri Balcom presented his petition in bankruptcy to the district court of the United States for the northern district of New-York, accompanied by the usual schedules, and on the 9th of February following, was duly declared a bankrupt.

<p>Ejectment for an undivided one third of seven acres and 46 rods of land in Manchester, Ontario county. The plaintiff claimed to recover as one of the heirs at law of Coonrod Schutt, his father. On the first day of November, 1834, one David Briggs and his wife conveyed to Coonrod Schutt by warranty deed, about 17 acres of land, including the premises in question. This deed was duly acknowledged, but was never recorded. Coonrod Schutt entered into possession of the premises described in the deed, and remained in possession until his death, in July, 1837. He left a widow, Dorothy Schutt, and three children, the plaintiff and two daughters. Cotemporaneously with the execution of the deed from Briggs and wife to Coonrod Schutt, the latter, "with his wife Dorothy, executed to Briggs a mortgage upon the 17 acres of land described in the deed, to secure the sum of $363,39, being part of the purchase price of the land. The mortgage was duly acknowledged on the 3d of November, 1834, and recorded in the ofiice of the clerk of Ontario county, September 1st, 1835. After the death of Coonrod Schutt, and in the fall of the year 1837, an arrangement was entered into between Briggs and Dorothy Schutt, the widow of Coonrod, to the effect that the latter should deliver up to Briggs the deed from him to Coonrod, which had remained in her possession since the death of her husband, to be cancelled; that Briggs should convey to Dorothy the seven' acres in question, and should give up to her, and satisfy of record, the mortgage from Coonrod and wife for the $363,39. This arrangement was carried into effect, and Briggs and wife, on the 17th of November, 1837, conveyed to Dorothy Schutt the seven acres in question, and the mortgage was satisfied of record, and the deed from Briggs and wife to Coonrod Schutt was delivered up by Dorothy to Briggs, to be cancelled. The remaining ten acres were afterwards sold and conveyed by Briggs to one Hardin. There was, at the time of this arrangement, about $300 unpaid of the mortgage debt, which was all due at the time of the death of Coonrod Schutt. This amount was secured to Briggs by Hardin, by a mortgage upon the ten acres sold to him by Briggs, and upon other lands. There was no other consideration for the satisfaction of the mortgage than the delivering up by Dorothy to Briggs of the deed from Briggs to her husband, to be cancelled. The defendant was in possession of the premises described in the declaration, at the time of the trial, and had been for two or three years. The case stated—“ It was admitted on the part of the plaintiff, that the defendant was a bona fide purchaser of the premises in question, in good faith.”</p> <p>After the plaintiff had rested, the defendant gave in evidence, the above mentioned deed from Briggs and wife to Dorothy Schutt, dated 17th of November, 1837, which was duly acknowledged and recorded February 6, 1841. Also a warranty deed from Dorothy Schutt to Martin Schutt, dated 19th of April, 1841, for the premises described in the declaration, which was duly acknowledged, and was recorded April 24, 1841. Also, a warranty deed from Martin Schutt to Dorothy Schutt, for the same premises, dated 11th of January, 1843, duly acknowledged, and which was recorded 19th of September, 1843. Also, a warranty deed from Dorothy Schutt to Belinda Jane Peer, wife of Richard Peer, dated 18th of December, 1843, duly acknowledged the same day, and recorded 19th of December, 1843, for the same premises. Also, a deed of quit-claim, from Richard Peer and Belinda, his wife, to the defendant, dated 11th of April, 1844, acknowledged the same day, and recorded 4th of March, 1844, consideration $400, for the same premises. The defendant went into possession of the premises in question, under the last mentioned deed. Mrs. Peer was a daughter of Coonrod Schutt. Evidence was given on the subject of the defendant’s knowledge of the arrangement between Briggs and Dorothy Schutt, above detailed, before he purchased the premises of Peer and wife.</p> <p>The cause was tried at the Ontario circuit, before Whiting, circuit judge, and the jury, under the charge of his honor, found a verdict for the plaintiff. The defendant now moved for a new trial.</p>

<p>Motion by the defendant for a new trial. The action was assumpsit, tried at the Cayuga circuit in February, 1846. The action was brought to recover the amount of a promissory note made by the defendant and one William Smith, payable to Silas Beardsley or bearer, for five hundred dollars, six months after date, with interest, and dated November 30, 1838. Smith had been discharged from his debts under the United States bankrupt law. The defence set up was usury. It was claimed on the part of the defendant that the note in question was given to secure a loan made by the payee to the maker Smith, and that as a condition of the loan, Smith was to pay, and did pay, to the payee, $25 beyond the legal rate of interest. On the trial Smith was sworn as a witness for the defendant, and testified to the usurious contract. On the part of the plaintiff, Beardsley, the payee, was introduced and sworn as a witness, and denied the usury. He was corroborated in his statements, to some extent, by his daughter Sally Ann Beardsley, another witness for the plaintiff, who it appeared was present during most of the negotiation for the loan. The testimony of the witness Smith was clear and positive, and was corroborated by statements which he testified were made, at the time of the transaction, in his cash book. That of Beardsley was less positive in detail. He evidently testified with much caution. It appeared from his evidence, that at the time the note in question was given, he paid Smith about half of the amount, being all the money he had by him at the time, and gave his notes for the remainder, payable in a short time. In his testimony he said, “ There was no agreement or understanding that I was to have more than seven per cent; that he did not pay me back any money at that time, to my recollection; the money I paid him and my note made $500. I paid him the whole of that note and the interest. After I paid Smith the money on that note, he said I had been to trouble in getting the money for him, and he would some time make me a present of $25. I think there was no agreement at the time. I believe Í did not make any exaction of him. 1 tifiink I should have remembered it, if it had been so. He did riot pay me back money alt that time, to my recollection. I should suppose I should recollect it, if he had.” The counsel for the defendant asked the witness if Smith had been in the habit of making him presents on other loans before that 1 The plaintiff’s counsel objected to the question, and- the circuit judge sustained the objection.</p> <p>After the evidence was closed, the circuit judge charged the jury by first explaining to them what constituted a usurious agreement; and after recapitulating to them the testimony on both sides, stated that there was in the case the conflicting evidence of Smith on the one side and Beardsley and his daughter on the other side, as to the usurious agreement, and the paying of the money back. That it was the exclusive province of the jury to judge of the testimony, and give it that weight it merited; and if, in their judgment, the preponderance of the testimony was in favor of the plaintiff, they would find for him for the amount which appeared to be due on the notes. On the contrary, if they thought the preponderance of the testimony was in favor of the defendant, and established the defense of usury, they would find for the defendant.</p> <p>The jury returned a verdict in favor of the plaintiff for $736,71.</p>

The plaintiff declared in covenant for rent accrued under the following instrument, executed by the defendants, and dated March 4, 1845: “ This is to certify that we have hired and taken, from William McCullough and Hiland B. Weeks, the house and store at the corner of Fourth Avenue and Twenty-fifth-street.

The action was assumpsit, upon a promissory nóte made by David H. Dick, and indorsed for his accommodation, by the defendant. The defence was usury. The suit was tried before Edmonds, Cir. Judge, in February, 1847. The making and indorsing of the note were admitted by the defendant’s counsel. The plaintiff produced a notarial certificate of protest and notice to the defendant, and rested.

<p>The owners of a ship involuntarily stranded can not claim a contribution from the owners of the cargo, for the destruction of the masts and rigging, by the master, in order to save the ship and cargo, and the lives of the crew, as general average; where, although the cargo is saved, the ship is finally lost, totally.</p>

The suit was brought by Gray to recover of Hook the sum of $250, and interest, being one.half the amount of counsel fees paid by Gray for defending a suit commenced against him by one Christopher P. Tappen, which was carried to the court of errors; upon an alledged agreement by Hook to pay one half of all liabilities which should be incurred by Gray in defending any suit brought, or to be brought, against him by Tappen.

<p>In Euuity. This was an appeal, by the plaintiffs, from an order of the Hon. A. L. Robertson, late assistant vice chancellor of the first circuit. The bill alledged that Michael Burnham, late of the city of New-York, departed this life on the 19 th of January, 1836, seised and possessed of considerable real and personal estate, leaving his last will and testament, duly executed, so as to pass real estate. That by such last will the testator gave and devised unto his sons Warren S., Henry and Charles, all his real estate in trust, after the death of the' testator’s wife, to sell and dispose of the same: and the testator declared his will further to be that the moneys arising from such sale or sales should be deemed to be part of his personal estate,' and that his wife should receive one-third of the rents and profits of the real estate for life, and that the residue of the clear yearly rents and profits, in the meantime, until the real estate" should be sold, should be deemed to be part of his personal estate, and subject to the dispositions of the will concerning his personal estate. As to the personal estate which should remain, after" payment of his debts, and funeral and testamentary charges, the' testator gave the same to his said trustees, upon the trusts and for the intents and purposes, and under and subject to the powers, provisos, declarations and agreements in the will after expressed and declared; that is to say amongst other things, upon trust that the trustees should invest the same in public stocks, or on real securities, at interest, and should pay or transfer all such principal moneys, stocks, funds and securities unto his sons Warren S., Henry, Charles, Michael, James and Thomas, and his daughters Elizabeth, Harriet, Ellen and Anna, equally to be divided among them, share and share alike; the shares of the sons to become vested in them respectively, and to be paid to them, on their attaining their respective ages of twenty-one years; and the shares of the daughters to be vested in the trustees, and applied and disposed of in the manner afterwards stated in the will; with the proviso, however, that if any of the children of the testator, being a son or sons, should die before attaining the age of twenty-one years, or, being a daughter or daughters, should die without leaving lawful issue, then the share of him, her or them so dying should go and accrue to the survivors and be equally divided amongst them. And upon the further trust that the trustees should pay and apply the dividends or interest of the share or shares of such of his said sons as should not have attained the age of 21 years, and of such of his daughters as should be under the age of 21 years and unmarried, for and towards his, her or their maintenance and education respectively. And with respect to the shares of his said daughters respectively the testator declared his will to be that the trustees should pay the dividends, interest and income thereof from the time when his said daughters should attain their respective ages of 21 years, or be married, (which should first happen,) into the hands of his said daughters respectively, for their sole and separate use and benefit, exclusively of their husbands; and that after the decease of his said daughters respectively the shares of such of them ds should leave lawful issue should go to, and become vested in, stich issue, and the shares of such of them as should die without leaving lawful issue should go and accrue to the survivors of his children. The testator further declared his will to be that when, and so often, as any of his trustees should die, or refuse to act, or be desirous to be discharged from, or become incapable of acting in the execution of the said trusts, it should and might be lawful for the other trustees to nominate and appoint any other trustee or trustees for the purposes mentioned in the will, in the place of the trustee or trustees so dying, or refusing to act, or desiring to be discharged. The testator, in and by said will, appointed his sons Warren S., Henry and Charles executors thereof, and guardians of his other children during their respective minorities. The bill alledged that the said Warren S. Burnham and Henry Burnham died before the testator, intestate, unmarried, and without lawful issue; that the testator left him surviving his wife, and the following children: Charles Burnham, Michael Burnham, James M. Burnham, and Thomas Burnham, Anna, now the wife of Henry Sherman the plaintiff, and three other-daughters. That the said Thomas Burnham died, on the 21st of August, 1841, under the age of 21 years, intestate, unmarried, and without lawful issue, and the said Charles Burnham died on the 23d of February, 1843, intestate, unmarried and without lawful issue, and after he had attained the age of 21 years. That on the 18th of March, 1836, letters testamentary upon said will were issued to Charles Burnham, the sole surviving executor, and that he took upon himself the execution of said will, and of the trusts therein expressed. That on the 26th of July, 1839, the said Charles Burnham, as sole surviving executor of, and trustee under, the said will, by an instrument in writing reciting the power contained in the will for that purpose, appointed the defendant Michael Burnham, one of the testator’s sons, to be a trustee in the place of Warren S. Burn-ham and Henry Burnham deceased, who accepted such appointment. That after the death of Charles Burnham letters of administration upon his estate were issued to the said Michael Burnham and the defendant James M. Burnham; that from the death of the said Charles the said Michael solely assumed the execution of the trusts of the said will, and entered into possession of all the estate which was of the said testator Michael Burnham, deceased, and all the books, vouchers and securities belonging to said estate, and assumed the administration thereof and the execution of said will; although the plaintiffs charged that the said Michael had never been appointed or qualified as administrator on the unadministered estate and effects which were of the said testator, but had assumed so to act as executor in his own wrong, and from thence hitherto had continued iu the sole possession of the said estate, books, vouchers, securities, <fcc. as such trustee and executor and trustee, and still possessed the same as such. The bill charged the defendant Michael Burnham with having made various improper sales of the property belonging to the estate, and alledged that Charles Burnham never rendered to the surrogate any account of his doings as executor and trustee; that Ire never made any division or distribution of the estate, among the devisees and legatees, and never paid or transferred to them, or any of them, or to himself as trustee for the plaintiff Anna A. Sherman, or for any of the daughters of the testator separately, any of the principal moneys, stocks, funds or securities of the estate, or the proceeds or avails, or income, or rents and profits thereof. The bill alledged that the plaintiffs intermarried on the 20th of September, 1843, and that the plaintiff Anna A. Sherman became of the age of 21 years on the 28th day of December thereafter; whereby the plaintiffs became entitled to have and receive from the said Michael Burnham, as trustee, an accurate inventory and account of the estate of the testator, and of Mrs. Sherman’s portion of such estate; and that the plaintiffs also became entitled to have and receive from the said Michael Burnham and James Burnham, as administrators of the estate of the said Charles Burnham deceased, a full and accurate inventory and account of Mrs. Sherman’s portion of the estate of Michael Burnham deceased which came to the hands of the said Charles as her guardian, and of the rents, issues and profits thereof, together with an account of all the expenditures made on her behalf, during her minority, from the death of the testator to the death of the said Charles; and also from the said Michael as trustee, from the time of Charles’ death to the time when Mrs. Sherman became of the age of 21, &c.; but that they had refused to render the same. The bill then charged that the defendant Michael Burnham was negligent and inattentive to his duties as trustee, and improvident and prodigal in his expenditures; that the plaintiffs had requested him to nominate and appoint two other trustees in association with himself, so as to fill up the original number appointed by the testator, in his will, but that for a long time he refused to make any new appointment; that finally, on the 22d of January, 1845, in opposition to the remonstrances and protests of the plaintiffs, he appointed the defendant James Burnham such trustee, whom the plaintiffs alledged to be an improper person to be thus appointed. The bill charged that the defendants had given no security for the faithful execution of their trusts, and that the rights and interests of the plaintiffs were unsafe in their hands. The bill set forth the execution of a deed, on the 1st day of February, 1841, by Michael Burnham and wife and Elizabeth Burnham, the widow of the testator, to Charles Burnham, Elizabeth Burnham, James M. Burnham, Thomas Burnham, Harriet Russ, and the plaintiff Anna A. Sherman, by virtue of which the grantees, each, became entitled to, and was seised and possessed absolutely and in their own right, of one-seventh part of the portion of the estate of the testator, (being one-eighth part thereof,) given by the will, and which under and by virtue of such will came, or should come to said Michael Burnham, the son; and also to all estates in reversion and remainder, and all benefit and advantage which might come or accrue to him by virtue of the provisions of such will; and also that on the death of Thomas Burnham and Charles Burnham respectively, Mrs. Sherman and the other-surviving grantees in that deed became in like manner entitled to all the estates and interests of the said Thomas and Charles in the estate of the testator which they the said Thomas and Charles, or either of them, derived under and by virtue of the. will of the testator or the said last mentioned deed.</p> <p>The bill prayed for an account from the defendants, and that they might be decreed to pay to the plaintiffs what, upon such accounting, should appear to be due to them, or either of them ;■ that the defendants might be removed from their office of trustee, and other and new trustees be appointed in their stead, and also that a third trustee might be appointed; and that the estate of the testator might be distributed agreeably to the will. The bill also prayed for an injunction, and a receiver.</p> <p>Answers were put in, by the defendants, and proofs taken. It appeared from the proofs that since the filing of the bill, Mrs. Sherman, the plaintiff, had given birth to a child, who was not made a party to the suit. On the 30th of December, 1846, the assistant vice chancellor made an order as follows : “ It appearing that the bill and proceedings in this cause are defective for want of proper parties—but such defect has not been set up by the defendants, or any of them, in their answer to the complainants’ bill of complaint—and it appearing to the court that this suit involves the distribution of a fund claimed to be in the hands of the defendants, Michael Burnham and James M. Burn-ham, a part whereof, it is alledged, is the separate estate of said Anna A. Sherman, one of the complainants, and it also appearing that there is no personal representative of the estate of Michael Burnham, deceased, made a party to this suit, and it not appearing by the proceedings or proofs in this cause whether any and what children of the daughters of Michael Burnham, deceased, are in existence, and this court being unwilling to make any decree in relation to said fund before the said Anna A. Sherman shall be properly represented and made a party to this suit, in regard to her said separate estate, and also that such personal representative and children of the daughters of the said Michael Burnham, deceased, if any, should also be made parties to this suit; it is ordered that it be referred to Stephen Oambreling, Esq. one of the masters of this court, to inquire whether there are any such personal representatives, or children, and who the same are, and generally whether all persons who are interested in the fund, the distribution or an account whereof is sought in this suit, are made parties, and, if not, who such persons are, and that the said master report thereon with all speed. And it is further ordered that the hearing of said cause stand over in order to enable the said complainants, on the com? ing in and confirmation of the said master’s report, to make such persons parties as said master shall report to be such necessary parties. And it is further ordered that the said complainant, Henry Sherman, have liberty to add such parties, either as co-defendants or co-complainants, as he may elect; if complainants, by suitable amendments of the bill in relation to their interests, or if defendants, by like amendments, or supplemental bill, as he may be advised, and to add the said Anna A. Sherman, by a next friend, as complainant, or to add her name as a co-defendant, and amend the bill and proceedings in this cause by striking out her name as a complainant therein. And it is further ordered that the said complainant, Henry Sherman, shall not be permitted to add the said Anna A. Sherman, by her next friend, as a co-complainant, unless he amend the prayer of his bill by striking out therefrom so much thereof as seeks to appoint or remove any trustee of the separate estate of the said Anna A. Sherman, and consents (reserving his right thereto in any future suit,) not to ask in this cause any relief wherein he may have an interest adverse to that of his wife, the said Anna A. Sherman, in regard to her separate estate, such consent to be filed and a notice thereof served as hereinafter directed. Nor shall he be permitted to add, as co-complainants, any other parties interested in the removal of or appointment of trustees of the estate and funds mentioned in the bill of complaint, without a consent to waive all right to proceed for such removal or appointment in this cause, (without prejudice to any new bill to be filed therefor,) such consent to be filed, and a copy thereof, with notice to be served in manner aforesaid. And it is further ordered that the said complainant, Henry Sherman, elect whether he will amend the pleadings and proceedings in this cause in the matters aforesaid, and the manner in which he shall so elect to amend the same, by serving notice of such election, in twenty days from the date hereof, on the solicitor for the defendants Michael and James M. Burnham, and shall actually amend the same in ten days after the confirmation of said master’s report by such amendment and consent as aforesaid, or else that the bill in this cause be dismissed, with costs to the defendants Michael, James and Elizabeth Burnham, without prejudice to the complainants, or either of them, filing a new bill making proper parties. And it is further ordered, that in case the said Henry Sherman elect to make any such amendments, that he pay to the solicitor for the defendants Michael Burnham, James Burnham, and Elizabeth Burnham, the costs of this present hearing, to be taxed, excepting therefrom the costs of any papers furnished to the court on such hearing, and that the question of the costs of said amendments and proceedings, in case the same shall be made or had, and of this hearing, be reserved until the final hearing, and that all other questions and equities be reserved until such final hearing.”</p> <p>From this order the plaintiffs appealed.</p>

Demurrer to declaration. The action was for a libel. The declaration alledged that the plaintiff was an attorney and counsellor at law and a solicitor in chancery; that having been concerned in the prosecution of divers suits, &c. for the defendant Selden and one Richards, upon their retainer, he commenced in action in this court against them for the recovery of, moneys claimed by the plaintiff to be due from them to him, for his work, labor and services as such attorney,…

<p>Error to the superior court of New-York. Story and others •sued the Harlem Railroad Company in covenant upon a sealed contract made by the plaintiffs with the railroad company for making about twelve miles of the Harlem Railroad, from Willi amsbridge to White Plains. By this contract the contractors were to be paid half in the bonds of the company and half in cash. “ The cash portion to depend upon a subscription made by the inhabitants of Westchester county.” And in case that subscription should not be paid, the company reserved the right of stopping the work until they could obtain such installments. The terms of the Westchester subscription were that the subscribers were to loan to the company the amount set opposite to their names, payable in ten monthly installments commencing August 1, 1841, with interest. The company were to execute their bonds to each subscriber, for the amount subscribed, payable in five years, with interest semi-annually, secured by a mortgage to Gouverneur Morris, (including the sum of §40,000 then due to him) as a first lien upon the road, from Harlem river to White Plains. The Westchester subscribers paid one or two of the installments. The railroad company never gave the mortgage, and they could not give it; not having obtained the right of way. In consequence of this default the Westchester subscribers refused further payment. The railroad company ceased paying the contractors, and finally, in September, 1842, stopped the plaintiffs in their work, and prevented them from fulfilling their contract. The plaintiffs had sub-contracted for the entire work, at fixed prices, which, if they had been allowed to complete their contract, would have given them a profit. The sub-contracts were made under the eye, and with the approbation, of Mr. Shipman, the engineer of the company. The cause was referred to referees to hear and determine. On the trial before them the plaintiffs proved the execution of the contract, and the amount of labor performed by them up to the time they were stopped by the company. They also proved, by the engineer, the amount of profits which they would have made, had they been permitted to complete the contract; being the difference between the contract price of the entire job and the amount for which they had contracted to have the same performed by sub-contractors. The referees reported in favor of the plaintiffs for $19,020,51; the report specifying the items upon which it was founded, with the conclusions of the referees upon the proofs. It embraced an allowance for the work done under the contract, by the plaintiffs, at the time they were stopped; interest upon the balance due them on that account; damages in consequence of suspending the work; and nominal damages. The report was confirmed by the superior court, and judgment was given for the plaintiffs; whereupon the defendants brought a writ of error.</p>

This was an action brought by the plaintiff to recover damages of the defendant for his refusal to give the plaintiff possession of the lofts of a store in Cedar-street, New-York. By a lease executed in February, 1844, the defendant rented the lofts to the plaintiff for one year from the 1st of May thereafter, at a rent of $500.

This was an action for a malicious prosecution in making a criminal complaint against the plaintiff, for receiving stolen property.

<p>In a suit brought against the defendant as executrix, she pleaded in bar, ne unques executrix; the plaintiff replied that the defendant had been, and was, executrix, and that she had administered divers goods and chattels of the deceased, as such executrix, “ to wit: at M. in the state of F., that is to say, at the city and in the county of New York.” Held, on demurrer, that the replication was bad; and that the defendant could not be sued in a court of law in this state, by reason of her being a foreign executrix, or by reason of her having administered, in another state, any of the goods and chattels of the deceased.</p> <p>It is a general rule of pleading, that if the matters alledged are local in their nature, the truth of the venue is material and of the substance of the issue.</p> <p>And if in such a case, it appears upon the face of the pleading that the venue is untrue, it is a defect which may be taken advantage of by demurrer.</p>

This was an action on the case, tried before Edmonds, circuit judge, at the New-York circuit in December, 1846. The declaration contained three counts.

<p>Motion to set aside report of referee. This was an action of trover. The declaration stated that on the first day of December, 1844, the plaintiff was possessed of. three certain promissory notes, one of which was made by Donner & Co., dated 15th April, 1837, for $375,82 payable fifteen months after date, to the order of B. F. Lee & Co., another of which said notes was made by Donner & Co., dated 15th April, 1837, for $375,82, payable twenty-one months after date, to the order of B. F. Lee & Co., and the other of which said notes was made by William Cronkhite, dated 7th September, 1837, for $545,28, payable twelve months after date, to the order of B. F. Lee & Co. That the said three notes were severally duly indorsed by the said B. F. Lee & Co.; that the said plaintiff casually lost said three notes on the said 1st December, 1844, and that on the twenty-fifth December, 1844, the said three notes came to the possession of the said defendant by finding. That the said defendant had not delivered said notes to the plaintiff, although often requested so to do, and that on the 36th December, 1844, be converted the same to his own use. The pleas were the general issue and statute of limitations. The cause, by the consent of the attorneys for the respective parties, was referred by rule of court to Daniel B. Tallmadge, Esq., as sole referee therein. Upon the hearing of the cause before the referee, the following statement of facts was agreed upon between the parties.</p> <p>On the 9th day of March, 1837, Benjamin F. Lee, James P. Cronkhite and Henry Weston, composing the firm of B. F. Lee do Co., purchased of George Griswold, direct or through Ship-man, Corning do Co., £3000 sterling of exchange at 14$ per cent, 90 days and 7 per cent interest, amounting to $15,508,80. In payment of this exchange, B. F. Lee do Co. gave their notes to George Griswold, as follows, viz: One note due the 29th of May, 1837, another due on the 8th of June, 1837, and another due on the 18th of the same month, for $5169,60 each. To secure the payment of these notes, on or about the 9th of March, 1837, B. F. Lee & Co. gave George Griswold sundry notes as collateral, and among others the notes in question in this suit. As the collaterals fell due and were paid, or any payment made on them, the money was applied to the payment of B. F. Lee do Co.’s notes so given to Griswold, and new notes were given by B. F. Lee do Co. for the balances due, after applying the cash so received from the collateral notes, and the last of the notes given to George Griswold by B. F. Lee do Co. for such balances, fell due on 23d August, 1838, viz: One note for $208,06, and another one for $1716. On the 23d of August, 1838, Griswold had in cash in his hands, received from the collateral notes, $2092,26, being $168,20 more than B. F. Lee do Co. owed him for the exchange so bought as aforesaid. There were, also, remaining in the hands of Griswold on the 23d of August, 1838, sundry notes of the collaterals, surplus, after paying him in full, and among them were the three notes in question; and B. F. Lee &. Co. then, on the 23d day of August, 1838, demanded of Griswold all the notes deposited with said Griswold as collateral for the payment of the notes of B. F. Lee & Co., given for exchange aforesaid and among others demanded the three notes in question, which said collateral notes Griswold refused to deliver to B. F. Lee & Co., claiming that he the said Griswold had a lien on them for the amount of the indebtedness to him of B. F. Lee & Co., on two several promissory notes then and still held and owned by said Griswold, one of which notes was for the sum of $232,15, dated March 30th, 1838, and due the 17th of May, 1838, and the other was for the sum of $2095,32, dated March 30th, 1838, and due June 1st, 1838, of which said notes B. F. Lee & Co. were the makers, and the same were indorsed by Shipman, Corning & Co., who passed them, or the originals, of which they were part renewals, to said Griswold, on or about the 19th day of April, 1837, for exchange purchased of said Gris-wold by Shipman, Corning & Co. The original note passed by said Shipman, Corning & Co., to Griswold, was for the sum of $3101,52, which became due the 22d of June, 1837, when a partial payment -was made by B. F. Lee &. Co. to said Griswold, and a new note was given for the balance, and such partial payments and renewals were continued down to the 30th of March, 1838, during all which time said Griswold was the holder and owner of the notes. On the 30th March, 1838, instead of a partial payment being made, a short note was given by B. F. Lee & Co., payable to the order of Shipman, Corning & Co. for $232,15, which note B. F. Lee & Co. promised to pay at maturity, and at the same time of giving the above note, they gave another for $2095,32 at sixty days, that being the usual time of the renewals to be given. Said two notes being equal in amount to a note of B. F. Lee & Co., which became due on or about the 30th of March, 1838, of which they were the renewals. Both of said notes were protested when they became due, and have remained unpaid in the hands of George Griswold to the present time, and said Griswold claimed that the collaterals in his hands should be applied to the payment of the two said notes of B. F. Lee & Co. The two notes of Donner & Co. were paid to Griswold at the time of their maturity, and the note of Cronkhite was of no value, but was cancelled on payment by his father of $75, shortly after it became due, which sums being the amount received upon the three notes in controversy, were passed to the credit of B. F. Lee & Co., and a large balance still remained due from B. F. Lee & Co. to George Gris-wold. Two of the members of the firm of B. F. Lee & Co., viz. Benjamin F. Lee and James P. Cronkhite each filed their separate petitions for a discharge under the late United States bankrupt law, and B. F. Lee was, on his own petition, on the fourth day of March, 1842, declared a bankrupt, and received his discharge on the first day of July, 1842, and said James P. Cronkhite was on his own petition, declared a bankrupt on the 20th of May, 1842, and received his discharge on the 20th of December, 1842, and Henry Weston, the other member of the firm was declared a bankrupt in the state of Indiana, on the first day of July, 1842, and in the same year was duly discharged. The notes in question were inventoried in their schedule in bankruptcy, by Lee & Cronkhite, as the property of B. F. Lee & Co., and the general assignee in bankruptcy for the southern district of New-York, on the 20th of December, 1842, sold at public auction to Humphrey B. Dunham, all Benjamin F. Lee’s and James P. Cronkhite’s interest in thirty-three notes, including the three notes in question, amounting in the aggregate to the sum of $25,000 for the sum of $93,50, that the interest of Lee & Cronkhite in the thirty-three notes was sold separately, but the interest of each in all the thirty-three notes was sold at one time, at one bidding. The interest of B. F. Lee in the thirty-three notes was sold for $50, and the interest of Cronkhite for $42,50. Their interest in each note was not sold separately, but the interest of each in the whole 33 notes was sold at one time. The notes were sold in a lump. On the 8th of March, 1843, Humphrey B. Dunham sold the same to John B. Coles, jr., and on the fourth of April, 1843, Coles sold the same to George H. Kelsey, the plaintiff. Benjamin F. Lee, Henry Weston and James P. Cronkhite were general co-partners in trade, entitled to the profits and bearing the losses of the business proportionally. B. F. Lee furnished all the capital, and no profits were made and the firm was largely insolvent. On the 26th of December, 1844, the plaintiff sent a written demand of the notes to the defendant, which demand the defendant refused, saying that the matter was in the hands of Joseph W. Allsop.</p> <p>The referee reported in favor of the defendant.</p>

Motion, by the defendant, to set aside the report of a referee. The facts are sufficiently stated in the opinion of the court.

This was an action of trover for a promissory note for $375, made by John Ives, payable to the order of Isaac Wilson, three months from date, with interest, at the Washington County Bank, and dated Hebron, March 2, 1847.

This was an action for money had and received, and was commenced on the 29th June, 1848, and was heard before a sole referee in October of the same year, who reported that there was nothing due from the defendant to the plaintiff. A motion had been made on the part of the plaintiff to set aside that report, and the cause came before the court on a case containing the testimony and the exceptions taken on the hearing before the referee.

Demurrer to the defendants’ 6th plea. The declaration was in debt on a bond given to the plaintiff by the defendants and one John F*. Lipe, deceased, for the faithful performance by Lipe of the duties of deputy to the said plaintiff, who was then sheriff.

This was a motion, made in behalf of the Agricultural Bank, and of the assignees of the defendant Loucks and of his copartner, Morgan Gray, for an order directing the sheriff of the county of Montgomery to pay over the surplus moneys in his hands, arising on the sale of real estate of the defendant under the execution issued in the above cause, to the Agricultural Bank, on a mortgage of said bank, given by the defendant, on one of the lots sold by the sheriff.

In Equity. This was an appeal from a decree of the vice chancellor of the eighth circuit. The bill was filed by the complainant, to obtain satisfaction of a decree in chancery obtained by one William Watson against Elijah Bigelow, out of a lot of land in Erie county, in which it was alledged in the bill that a trust resulted in favor of the plaintiff as a creditor of Bigelow.

In Eq.uity. William Cook died on the 4th of July. 1834, leaving his mother, Candace Cook, and his two nieces, Sara Cook and Jeannette M. Cook, his only heirs at law and next of kin surviving him.

The action was debt against a sheriff, for an escape. The plaintiff proved, upon the trial, the issuing, but not the service, of the capias against the sheriff, while the debtor was off the jail limits. The judge decided that it was necessary to prove not only the issuing of the writ, but the service thereof upon the sheriff, during the debtor’s absence from the limits; and nonsuited the plaintiff. The plaintiff excepted, and now moved for a new trial.

In Eguity. This was a bill filed by the plaintiff to restrain the defendant, by injunction, from the commission of waste. The plaintiff was the vendor and the defendant the vendee of premises, in the possession of the latter- under a contract of sale. The other facts in the case sufficiently appear in the opinion of the court. The cause was brought to a hearing upon pleadings and proofs,

This was a motion, by the defendant, for a new trial, on a bill of exceptions. The action was ejectment, and was tried before the Hon. Ira Harris, justice, at the Montgomery circuit. The cause had been once tried previously, and a new trial granted. The plaintiff sought to recover seven acres of land described as the northeast comer of lot No. 10 in a patent of land granted to Brodt and Livingston.

Demurrer to declaration. The action was debt on a bond for $3000, given to the plaintiff by Thompson as principal and Bishop as his surety, dated on the 18th of June, 1844, with a condition, to be void if Thompson should, among other things, “ save harmless the said” obligee “ from a bond executed by him to Nathan R. Crippen deceased, dated on or about the 3d day of March, 1840, the said Crippen giving the said Thompson notice of any proceedings at law or otherwise thereon.”…

This was a demurrer to the first count of the plaintiffs’ declaration.

This was a civil action, commenced and carried to judgment under the code of 1848. It was tried before a sole referee, in pursuance of title 8, chapter 5, of the code, and a report was made in favor of the plaintiff for $>150. According to the former division of actions, it was trover for three sets of stove patterns.

Motion to set aside the report of a referee. Oil the 2d of August, 1836, one James B. Reid made his promissory note as follows: “ Nine months after date, I promise to pay D. Wright or order, at the Montgomery County Bank, two hundred and fifty dollars value received, with interest. August 2, 1836. James B. Reid.” On the 28th September following.

This action was commenced under the code of 1848. The complaint stated that the plaintiff, by his agent, on the 16th of June, 1847, purchased and received of the defendant 218 barrels of flour in closed barrels, iohich the defendant sold and delivered to the plaintiff as superfine flour, Michigan mills, at $7,50 per barrel, which price was paid therefor by the plaintiff.

<p>The mere fact that the name of a witness appears as a party upon the record is not sufficient to exclude him, if it appears affirmatively that he has no interest in the event of the suit.</p> <p>The true rule is, not that a witness shall be excluded merely because he is a party to the suit, but that a party to the issue tried, shall not be examined as a witness.</p> <p>And whenever it happens that a party upon the record is not a party to the issue upon trial, his competency or incompetency as a witness depends, as in every other case, upon the question of his interest in the event of the trial.</p>

The defendant in error was plaintiff below. The action was assumpsit. The declaration contained the common money counts and a count upon an account stated. The defendants pleaded non-assumpsit, and gave notice that they would rely upon the statute of limitations. Upon the trial the plaintiff below offered in evidence the book of records of the defendants, containing the minutes of the proceedings of the trustees.

This was an action of debt, tried at the Columbia circuit in December, 1848, before Justice Harris. The declaration was upon a judgment in favor of the plaintiff against the defendant, rendered by John Yan Burén, Esq. a justice of the peace of the town of Chatham, on the 12th day of August, 1840, for $100,47. This suit was commenced on the 23d of November, 1847. The defendant pleaded 1. Nul tiel record, and 2.

In Egiuitt. On the 19th of September, 1837, John Z. Sax-ton, having been extensively engaged in mercantile and other business, and being insolvent, made an assignment of his property to Pearson Crosby and John Crane, in trust for the payment of his debts. By the terms of the assignment the debts to be paid were divided into four classes, which were to be paid in the order specified.

Error from the court of general sessions of Washington county. This was an indictment for an assault and battery, committed upon one Martin Burch by the defendant below, while Burch was engaged in removing a fence. The question on the trial was, whether the place where the fence (attempted to be removed) was standing, and where the assault and battery was committed, was a public highway.

This was an action of debt, brought upon a judgment rendered by the court of common pleas of Merrimack county, New Hampshire. The defendant pleaded that he did not reside in New Hampshire at the time, and was not served with process in the suit; had no notice thereof, and did not appear in the action, &c. The plaintiff replied that the defendant appeared, &c. The cause was tried at the Essex circuit, in October, 1848, by Justice Parker, without a jury.

<p>The docket of a justice of the peace, or a transcript from such docket, of the proceedings in a suit in which the justice acquired jurisdiction of the cause, and of the person of the defendant, is conclusive evidence of the facts therein stated ; and in a suit upon the judgment rendered by the justice, can not be contradicted by parol evidence.</p> <p>Where an inferior court has once acquired jurisdiction, it will not lose it by a subsequent error or irregularity. Accordingly hcl/LAhsX. a justice of the peace did not lose jurisdictionofca cause by erroneously adjourning it, contrary to the agreement of the parties^, and that a judgment subsequently rendered by the justice was valid untiLreversed on cbrtiorari.</p>

Motion to set aside a nonsuit and for anew trial. The action was brought against the defendant, who was postmaster at Rome, to recover $100 alledged to have been lost, and which belonged to the plaintiff.

Demurrer to declaration. The action was on a policy of insurance dated Sept. 21,1844, by which the defendants insured the plaintiff for the term of five years, to the amount of $1020 on his dwelling house No. 1 and wood shed, $300 on his dwelling house No. 2, and in different sums upon other buildings, amounting, in the aggregate, to $2000, against all losses or damage which the plaintiff might sustain “ by, or by reason, or by means, of fire, not exceeding in the whole the…

This was an appeal, by the defendant, from the judgment entered in this action upon the verdict at the circuit.

<p>A warrant of commitment, issued by a justice of the peace, upon a conviction for petit larceny, is void, unless it be directed to the officer, or class of officers, by whom it is to be executed; and will afford no protection to a constable who executes it.</p> <p>The legislature, by the section of the statute relative to warrants of commitment, issued by courts of special sessions, did not intend to prescribe a form for such warrants, or to vary the common law rule respecting them. Hence a warrant which would be good at Common law, will be valid under the statute.</p>

Motion to set aside report of referee. The declaration contained two counts, the first of which was in the following form: “ Monroe county, ss. James O’Maley, plaintiff in this suit, by Paine and Cochrane, his attorneys, complains of John Reese, defendant, by declaration without writ of a plea that the said defendant render unto the said plaintiff, the sum of two hundred dollars which he owes to and unjustly detains from the said plaintiff.

<p>Where a complaint alledged that on a certain day, and at a certain place, the defendant, by his promissory note in writing, for value received, promised to pay to the plaintiff or bearer, a specified sum; that he had not paid the same ; but was indebted to the plaintiff therefor; Held, on demurrer, that this was sufficient; although there was no allegation that the defendant delivered the note, and the complaint did not state when the note was payable, nor whether the same was due, or not, nor that the plaintiff was the owner or holder of the note.</p>