Volume 6 — Cowen's New York Reports

Assumpsit, commenced in August term, 1821; and tried at the Chenango circuit, August 26th, 1823, before Nelson, C. Judge. The declaration was on the special contract of Fuller and Smith, as proved upon the trial; and also contained the money counts.

<p>On certiorari from a justice’s court. The plaintifts sued the defendant before the justice, on a subscription, dated September 25th, 1817, by which the defendant obligated himself to pay the plaintifts 6 dollars annually, in semi-an-r 1 /-v nual payments, so long as the reverend Orange Lyman should continue to administer the gospel, &c. Plea, the general issue.</p> <p>The only question before the justice was, whether the plaintiffs were a corporation when the suit was brought, * A ° The original certificate of their proceedings to organize as a corporation, in 1803, was, by counsel here, admitted to be sufficient; that they were regularly incorporated under the 3d section of the act of 1801; (1 A. ⅜ R. 336, &c.) and that all irregularities in their proceedings previous to the 5th of April, 1813, were cured by the statute then passed, re-enacting the statute of 1801; and expressly eonfirming former incorporations. (2 R. L. 212, 218.) But it appeared before the justice, that at the annual elections subsequent to that period, only one person presided; whereas the statute, (2 R. L. 214, s. 36,) requires two: that at such elections no certificate of the result was given as required by the 6th section of the statute, (2 R. L. 216:) that the regular annual meetings of the society were the first Tuesday of May. in each year: yet there was no record of any meeting in 1818; and no evidence of any meeting in that year, except the record of a resolution ín 1820, reciting that the record of 1818 was lost; and di- ' ° recting the clerk to record the election of the trustees of that year. It appeared by the plaintiffs’ book of minutes, first introduced by them, but afterwards used by the defendant, that the persons prosecuting in the court below were trustees of Vernon society; but they produced no certificate of their having been regularly elected.</p> <p>On this evidence, the justice gave judgment for the defendant below.</p> <p>insisted that none of the irregularities presented by the justice’s return, were such a misuser or nonuser as would work a dissolution of the corporation. But if otherwise, it is clear that it did not lie with the defendant to make the objection in the suit before the justice. Though a corporation may forfeit its charter by an abuse or neglect of its franchises, the forfeiture must be ascertained and declared by regular process and judgment of 1»™, before its powers can be taken away, or the corporation be considered as dissolved. The remedy is by set. fa. prosecuted at the instance, and on behalf of the government, or by an information in nature of a quo warranto. (1 Bl. Com. 485. She v. Bloom, 5 John. Ch. Rep. 3G6, and the cases there cited. 19 John. Rep. 456, 474, S. C.) The cases cited shew the rule and its exceptions; and indeed are perfectly conclusive.</p> <p>The trustees who are duly elected, hold over till others are chosen in their place. (9 John. Rep. 147.)</p> <p>Besides, the defendant contracted with the plaintiffs as a corporation, and by their corporate name, and he is precluded from objecting that they are not a corporation. (14 John. Rep. 245.)</p> <p>cited 8 John. Rep. 378, to show that the plaintiffs must prove themselves a corporation upon the general issue. He said, no one election had been legally conducted. Only one person had presided at any of them. This was the same as if no election had taken place. The whole was void ; and the plaintiffs not authorized to sue as trustees. (2 R. L. 216, s. 3, 6.)</p> <p>There is no need of a sci. fa. or quo warranto, to try the question of dissolution, in the case of a religious incorporation under the statute. It must at all times, and in all suits, be prepared to shew its continuance as a corporation, as well as its original formation. Here is not only an irregularity in the election for a single year; but it was continued for a series of years. The 9 John. 147, therefore, is not applicable; nor will the 14 John. 245, be found to help the plaintiffs.</p>

The defendant was convicted at the last oyer and terminer of Washington county, of forging a promissory note for the payment of money, purporting to be signed by Solomon Dean, payable to Gerrit Wendell, or order, at the bank of Lansingburgh, with intent to defraud Wendell. On the trial, Solomon Dean was offered as a witness for the peo-pie; but he admitting that he had not paid the note, was objected to by the defendant’s counsel as incompetent.

moved to set aside the inquest taken against the defendants, at the last Otsego circuit, on the ground, (among others,) that though the notice of trial tor circuit was not for an inquest ; yet an inquest was taken by the plaintiff out of its order on the calendar. There were issues of different dates in the cause ; the first was the general issue ; and the others were joined,- at a later period, by replication to the defendants’ special pleas.

moved to change the venue from Albany to Schenectady. He read an affidavit of the defendant, that he had thirteen witnesses residing in Schenectady, whose testimony, as he was advised by counsel and verily believed, would be material to his defence ; but lie did not add that, as he was advised by counsel and believed, he could not safely proceed to trial without their testimony; and therefore, objected that the affidavit was defective.

<p>In assumpsit. J. Dickson, for the plaintiffs, moved to set aside three special pleas interposed by the defendants, rpjje fjrs{ was a piea 0f accord and satisfaction, in nearly the r ’ _ J eommon form. The second was, that the parties had sta-an account, when a balance was found for the plaintiffs of $700,99; for which the defendants gave their bond, . , , . as security; that the plaintms had recovered judgment thereon 5 &at one of the defendants paid the judgment in full, &c. These facts were pleaded with great particularity of day, place and circumstance. The third plea was a veiT termal plea, first of a special accord between the parties; and a formal and particular satisfaction in pursuance of it.</p> <p>These had been pleaded, according to the statute, &c. with the general issue. The plaintiffs had replied to the BPec*al pleas, taking issue to the country; and the defendants had demurred to the replication; and the plaintiffs joined in demurrer. At the last Monroe circuit, the plaintiffs took an inquest, pursuant to notice for that purpose, x 7 * 4 4 no affidavit of merits having been filed by the defendants.</p> <p>The plaintiffs’ attorney had also placed the demurrers on the calendar of the present term for argument.</p> <p>The counsel read an affidavit, of one of the plaintiffs, shewing the falsity of the special pleas in point of fact; and this was not denied in any way by the defendants, or their attorney. He cited 2 B. & A. 197, 199; 5 id, 750; 2 Cowen, 634, and 637, note (a.)</p> <p>said the court would not interfere in this form, merely because the pleas were untrue in point of fact, (4 Cowen, 47-8, and note.) Beside, it is now too late to move ; the plaintiffs having replied to the pleas, and joined in demurrer to the replications. They must now be argued.</p> <p>relied on Corbet v. Powell, note to Shadwell v. Berthoud, (5 B. & A. 750,) to show that he Was not too late with his motion. In the ease cited, the plaintiffs had replied, and there was a demurrer to the replication; yet the] plea was stricken out, on motion, as false.</p>

moved for an attachment against the defend ants for not paying costs, pursuant to a rule of this court.

<p>The «u-win not order referred *a circuit judge for settlement as to the evidence, where It has once been settled cot Jinglo the practice of the court; unless there be e v6 • rj- plain mistake-</p>

Upon a mere notice, unfounded on any affidavit, or other papers, a motion was made to amend the declaration by . . . adding a new demise particularly specified m the notice; and Anonymous, (2 Caines, 261,) was cited.

<p>On motion that an argument take preference on the calendar ;</p>

The defendant being brought up on attachment for not returning a fi. fa., in answer to the interrogatories filed, said that the fi. fa. had been received by his under sheriff ; and that the money had been collected ; and that he had not returned the execution ; but did not say, whether he had received notice of a rule to make the return ; and the attorney for the plaintiffs had inadvertantly omitted an interrogatory to that point. moved to amend by inserting this…

Ejectment. Verdict and judgment for the plaintiff. The cause had been noticed for trial twice. On the first notice, the plaintiff not being ready at the circuit, the cause went off for that reason. The plaintiff ⅛ attorney insisted on having his costs of that circuit taxed in the final bill; and that they should make a part of the judgment ; but Storrs, first judge of Oneida, before whom the taxation took place, excluded them.

moved for a mandamus to the C. P. of Madison county, commanding them to vacate a rule allowing Ratmour and Smalley, defendants in replevin, in that court, at the suit of Fort, to file a plaint nunc pro tunc. The facts were, that the clerk of Fort's attorney had made out and delivered a plaint in replevin to the sheriff of Madison, against Ratmour and Smalley ; which was executed.

Stafford sued Faniham before a justice of Madison # 0 county. He declared ; and Faniham pleaded the general «ssue. The cause was then adjourned. The defendant did not appear at the adjourned day ; when the justice heard the cause, and gave judgment for Stafford. Fan-iharn appealed to the Madison common pleas.

The venue in this cause was at first laid in the county of Onondaga ; and was noticed for trial and inquest there, at the last March circuit. To prevent an inquest, and put the plaintiff to the regular course of the calendar, the defendant filed with the circuit clerk the usual affidavit of merits; and served a copy on the plaintiff ⅛ attorney, The cause not being then tried, the venue was changed to the county of Rensselaer, by stipulation between the parties.

THE plaintiffs were incorporated by an act of the Iegislature of New-Jersey, reserving the right to repeal or modify the act at any time. The plaintiffs sued in this court for a debt due to them. Afterwards the legislature of New-Jersey repealed their charter, and passed a law vesting all the property of the corporation in three trustees.

In covenant against the defendants, they pleaded non infregit conventionem, and news per discent. To the latter plea the plaintiff replied that the defendants had sufficient lands by descent, &c. and issue.

<p>This action was assumpsit against the defendants, as ⅜ r ° . neirs at law of Aaron Brower, deceased. The capias ad respondendum was returned served on all the defendants, ⅛ August term, 1820. A. and J. Brower, being adults, appeared and pleaded the general issue. The other two de^en(^anfs being then and still infants, the plaintiff, at the October term, 1820, obtained a rule that they appear by some guardian, in 20 days after personal service of the rule; or that the plaintiff’s attorney should have leave to appoint . .. , ,. John Doe for their guardian, and enter their appearance. Service the rule being made accordingly, and they not appearing, on filing an affidavit of the service, the plaintiff entered his rule for the appointment of John Doe, a nomin-a; guardian, having no real existence. ” ^ o</p> <p>The cause was afterwards tried on the general issue as ^ p}ie 0ther defendants ; and no defence of riens per dis-cent was interposed. In February term, 1825, the plañí-tiff entered a judgment for the plaintiff generally against ajj defendants, upon the verdict against the adults, and 1 # 0 on nil dicit as to the infants.</p> <p>fi- fa- was >ssucd against, and levied on the property 0f all the defendants before one year had elapsed after the judgment. No return day was mentioned in this execu-v</p> <p>moved to set aside the judgment, and all subsequent proceedings. He cited 2 Tidd, 854; Id John, Rep. 97; 1 R. L. 515; 14 John. Rep. 417; 12 John. Rep. 434; Bac. Ah. Error,(M) ; 1 R. L. 318, s. 6; 14 John. Rep. 424; Simonds v. Catlin, 2 Caines’’ Rep. 61; 2 Str. 1076; 2 Wils. 50 ; 2 John. Dig. 20, Infant III.; 2 John. Rep. 192 ; 2 Cowen’s Rep. 430.</p> <p>cited 2 Sell. Pr. 67, 68; 2 Archb. Pr. 145; Bac. Ah. Heir and Ancestor,(H); Plowd. 440; 20 JoAn. Rep. 414 ; 1 R. L. 316, s. 4 ; 2 Cowen’s Rep. 619.</p>

Assumpsit for goods sold, &c. with the other common eounts- Plea, non-assumpsit, with other pleas, and a notice of set off. The cause was referred on the defendant’s motion; and the question before the referees was, whether certain pay-5 r J ments made by the defendant to, and receipted by S. Gould, should be applied to the demand in favor of the plaintiffs, The referees allowed the payment; and reported only , 1 v x $3,70 m favor of the plaintiffs.

<p>The affida-ceived to «hew a mistako in making up take is pro-eircumstanceJ passing at tha trial which are equivalent J?o* ’⅛⅛ judge,</p>

This cause being referred; and the referees having convened to hear it, the defendant’s counsel moved, on the affidavit of the absence of a material witness, to put off the ⅝ hearing. This was objected to by the plaintiff’s counsel, unless the plaintiff’s costs of preparing for the hearing were first paid.

Motion, by the defendant, to set aside the plaintiff’s verdict for irregularity. The action was a bailable one. The defendant put in R. Farr and John Doe as bail; and sent a plea of the general issue to the plaintiff, the 24th of April last. On the BOth, the plaintiff gave notice of exception to the bail. The defendant then gave notice of moving for an order to mitigate bail; and that two substantial persons would justify as such, on the 20th day of May.

A motion was made in behalf of the defendants, that the judgment for the plaintiffs, as to costs, be set aside : and 6 .... ’ that the defendants be allowed their costs. The action was debt for the penalty of $¡500, on sealed ar-tides between the parties,by which the defendants (among other things) agreed to pay certain moneys to the plaintiffs, The breaches assigned, were in the non-payment of the . ... moneys.

Baker recovered judgment against Decker in a justice’s court of the county of Steuben, whence Decker sought to appeal. For this purpose, within the time limited for appealing, the requisite bond was prepared, with a blank for the penalty and the amount of the judgment; and ex-ccufec¡ Decker and a surety.

General indebitatus assumpsit. On the application of the defendant’s attorney to a commissioner having power to do chamber business of a judge of this court, he made * 0 * an order, “ that the plaintiff’s attorney deliver to the defendant’s attorney a copy of the receipt, which is the evidence of the payment of the money for which this suit is 1 * * broughtand in the mean time that all proceedings in the suit be stayed.

moved for a mandamus to the judges of the C. P. of Jefferson county, commanding them to vacate a rule quashing an appeal, by La Farge, from a judgment before a justice against him, at the suit of Fuller & Everts.

moved for a rule upon 1 # , the plaintiffs, that they furnish to the defendant’s attorney C0P'es °f certain entries made in their books relating to the note which they had declared on in this cause, or allow some proper person to inspect and take copies of their books, He cited Cliff ord v. Taylor, (1 Taunt.- 167;) Gold-' sehmidt v. Marryat, (1 Campb.

Covenant, on a bond given by De Graw, as surety, under the statute authorizing an appeal from a justice’s court, conditioned to prosecute the appeal, &c. moved to set aside a default for not pleading; and that, on the defendant’s paying the penalty of the bond, which was 100 dollars, with costs, into court, all further proceedings be stayed, &c. The facts are stated by the court.

<p>moved to set aside the testa-tum fieri facias, issued in this cause against the defendant, for irregularity.</p> <p>He read an affidavit, showing that a judgment was perfected in favor of the plaintiffs against the defendant, for $442,96, in October, 1817. That soon afterwards, a testatum capias ad satisfaciendum was issued on the judgment, upon which the defendant was imprisoned in the common gaol of Herkimer county; and having procured bail for the gaol liberties, had continued a prisoner upon the liberties from that time to the present, upon the ca. sa. That on the 3d day of February last, a testatum fieri fa-cias was issued upon the judgment, and placed in the hands of the present sheriff of Herkimer, by virtue whereof he had levied on a large amount of personal property owned by the defendant.</p> <p>read various affidavits, showing that the defendant had made frequent escapes from the liberties since he was committed; and before the issuing of the fi. fa. ; and claimed that it issued properly within the statute, (1 R. L. 426, s. 24,) which provides, “that if any person who shall be taken on any execution, or committed thereon to any prison, shall escape by any ways or means howsoever, the creditor, at whose suit such prisoner was taken or charged in execution, may re-take such prisoner by any new capias ad satisfaciendum, or sue forth any other kind of execution on the judgment, as if the body of such prisoner had never been taken in execution.”</p> <p>But it appeared that these escapes were principally on Sunday; and that when the fi. fa. issued, the defendant had returned, and was within the gaol liberties.</p> <p>Ford insisted that the statute did not apply to a temporary escape, from which the prisoner has returned and is in custody at the time of the second execution. The escape intended is a permanent one ; such an escape as will work a forfeiture of the gaol bond.</p> <p>Departing from the gaol on Sunday was an escape. This was held in Tillman v. Lansing, (4 John. 45.) Janson v. Hilton, (10 John. 549,) supports the same position. The escape being on Sunday, goes only to the remedy. Process cannot be served if there be a return before the day closes. (1 R. L. 163, s. 5.) Formerly even this was otherwise. (Com. Dig. Temps. (B. 3.) Every going at large is an escape, unless it be on habeas corpus or rule of court. (1 R. L. 426, s. 21.) The condition of the limit bond is, that the person arrested on the ca. sa. shall remain a true and faithful prisoner; and shall not, at any time, & c. escape. The re-caption or return is matter of defence to an action ; (id. and 3 Salk. 150, case 5 ;) and it must be pleaded. (1 JR. L. 426, s. 23.)</p> <p>If this be an escape, the condition arises within the statute, upon which a second execution may be issued. This was held in the late case of Mum ford v. Armstrong, (4 Cowen’s Rep. 553.)</p> <p>The statute upon which we issued the second execution is remedial of a defect in the common law, which considered the body a satisfaction. It should, therefore, be construed liberally in favor of the plaintiff’s right.</p> <p>It has never been held necessary to issue a sci. fa. or resort to a motion in such a case. The execution may go of course.</p> <p>By issuing the second execution, we elect to pursue the property, and discharge the body. But if otherwise, there can be no objection to this course. In Jackson v. Bartlett, (8 John. Rep. 361,) the fi. fa. and an action for the escape, were both held to be consistent remedies; and that they might both be pursued at the same time.</p> <p>At any rate, a motion is not the proper course for relief. If we have proceeded irregularly, let the defendant bring his action against us.</p> <p>This motion goes the length of saying, that though we had escaped but for a moment, just after our first imprisonment, the plaintiffs may lie by for years ; acquiesce in our imprisonment; and then pursue us by a Ji. fa. The escape complained of, is the mere going off and returning to the limits on Sunday, before any suit brought or execution issued. This is certainly very bold and novel practice. Such a case was never before heard of, though the statute is a very ancient one; and has existed for a long time in England. In Mumford v. Armstrong, (4 Cowen's Rep. 553,) there was no pretence of a return. At common law, an imprisonment and escape were a satisfaction ; but the sheriff may be insolvent; and hence this remedy of a second execution was provided. It comes in the place of such an escape as will make the sheriff liable. An escape and return on Sunday, therefore, or on any other day before suit brought, is not within the act. An execution can go, only where an action will lie against the sheriff. It must be issued before the escape is purged. An escape works no injury to any one, if there be a return before it is availed of. The words relied on, if be shall at anv time escape,” must be taken subject to this qualification. All the statutes declaring the effect of an escape, must be taken in the same way.</p> <p>But, at any rate, on a grave question of this kind, the plaintiff should be put to his sci fa. or motion, before he is permitted to take a second execution. The former should be preferred; because it will enable the party to pursue fully what he conceives to be his right, should the opinion of this court be against him. To turn us round to an action would be no remedy; for the process will protect the sheriff and the party, if suffered to stand.</p>

Judgment was recovered against Stephens by Phillips, before a justice of Onondaga, and execution issued, upon which Stephens being imprisoned, paid the judgment to the plaintiff, and took his receipt. Being discharged, he attempted to appeal to the Onondaga C. P., and paid 75 cents to the justice; but did not pay him the costs of the suit, supposing that the payment to the plaintiff was the same thing.

moved to set aside the amended declaration, on the ground of variance from the special original. The writ was in assumpsit; and had four counts on special agreement.

Motion to set aside the non-pros of the plaintiff, for not replying, with all subsequent proceedings. The action was assumpsit against the defendants as executors. They pleaded, 1st, non-assumpsit: and 2d, an outstanding judgment, and plene adminstravit prater.

Slander, tried at the New- York circuit, December 8th, 1824, before Edwards, C. Judge. The first count of the declaration stated, that the plaintiff was a minister of the gospel of the reformed Dutch church, ordained and duly installed as the clergyman of the reformed Dutch church, at Kakiat, in the town of Hempstead, in the county of Éockland, at a certain yearly salary. That he faithfully performed his duty as such.

Assumpsit for money had and received, tried at the New-York circuit, October 5th, 1824, before Edwards, C.. Judge. 'At the trial an agreement was given in evidence between the plaintiff and one Henry R. Teller, dated April 1 Oth, 1807. This agreement recited a claim to certain lands by Teller, to whom the plaintiff was related ; and provided, that on its recovery, the former would convey to the plaintiff one fourth of it.

<p>Case, for distraining the plaintiff’s goods, when no rent was in arrear, under the act (1 ü. L. 436, s. 9,) tried at the Ulster circuit, October 14th, 1823, before Betts, C. Judge.</p> <p>Plea, the general issue.</p> <p>It appeared, at the trial, that Newkirk, the defendant, had demised certain premises, being a grist-mill, fulling-mill, house, &c. to the plaintiff, for three years from the 20th of May, 1822, at 300 dollars rent per annum; payable out of the carding or fulling book ; the defendant to have the privilege of taking the accounts as they stood, beginning either at the top or bottom. The lease provided that either party might determine it, on three months notice previous to the end of the year. The witness who proved this lease, did not recollect distinctly when the rent was payable, though he thought it was at the end of the year.</p> <p>On the 3d of February, l82o, the parties agreed to destroy the lease, and it was accordingly destroyed; and they struck a balance of the rent. Newkirk agreed to give off and deduct 60 dollars ; and it was' agreed in writing, that Peters should give up the possession of the grist-mill immediately, and retain possession of the house and barn, with the privileges under the first lease, till the 1st of May, 1823, and then leave possession ; and that he might finish his cloth in the shop. The balance of rent due to Newkirk, was agreed to be $87,75, for which Peters gave' his due bill in these words : “ Due, this 3d day of February, 1823, to Christopher Newkirk on a settlement for rent of the mill, fulling-mill, &c, the sum of eighty seven dollars, seventy five cents, &c.” It w7as also agreed that Netvkirk should take a shearing machine to be appraised by C. Sturges, in part pay of the due bill; and to be endorsed upon it; and on the 1 Of A of February, 1823, he made the appraisement at $85, at the request of the plaintiff, and in the absence of the defendant, who was not notified.</p> <p>The defendant offered to show7 by Sturges, that in making the appraisal, he took the first cost of the machine, and deducted the damage occasioned by its use; but that in bis opinion, the real value to a man engaged in the clothing business, was not more than 25 dollars. This evidence was objected to, and overruled by the judge.</p> <p>The distress was made on the 6th of February, 1823, for tlie $87,75, and on tbe 12th, after the appraisal of the machine, the plaintiff caused to be served on the defendant a copy of the appraisal, tendered him seven dollars, and demanded a return of the goods distrained. The defendant refused to return the goods, but proceeded to sell them.</p> <p>The judge decided and charged the jury, that, to protect the defendant, it must appear, not only that rent was due, but that it was due with right of distress. That the jury must be satisfied that the due bill was given for rent then in anear, or made payable in advance by express agreement. That if the 85 dollars discharged all the rent due on the 3d of February, the plaintiff was entitled to recover ; but if, under the agreement of the parties, any rent was then due and in arrear, they should find for the_.de-fendant.</p> <p>Verdict for the plaintiff $92, single damages, the value of the goods distrained.</p> <p>now moved for a new trial. Fie said, that even if the $85 was to be applied as of the 3d of February, there was still $2,75 yet due, for which the defendant might distrain, and which Would protect him from the penalty imposed by the statute, (1 R. L. 436, § 9.) There is an adequate remedy for an unreasonable distress. The statute gives the treble damages, only in a case where no rent whatever is due. Although the first agreement was uncertain, as to the time of payment, the second one changed it, and fixed the time at the 3d of February, the date of the due bill.</p> <p>If the. rent was in fact due, this was enough, whether there was a right to distrain or not. The statute applies to a case where no rent is due ; not where the party mistakes his remedy. ( Woodf. L. ⅜ T. 258, Am. ed. id. 395, Lond. ed.)</p> <p>But the whole $87,75 was due. The award or appraisal of Sturges was void for want of notice to the defendant. (4 Dali. 232.) At any rate, evidence should have been received to shew the false basis on which the arbitrator made his appraisal.</p> <p>The rent, as originally reserved, was not of a nature to be the subject of a distress. The reservation was void. (Shep. Touch. 80.) But if otherwise, here was no rent in arrear when the distress was made. The original rent had not yet fallen due; and the mere act of giving the due bill did not change the time of payment. But if it did work a change as to the time, we say the situation of the parties was changed by the new agreement. The relation of landlord and tenant ceased for the purposes of a distress. (1 T. R. 441. Bain v. Clark, 10 John. 424.) And there was no new agreement which gave a right to distrain. It was left to the jury upon this question; and they found there had been no change as to the time. In this view, it was immaterial whether the appraisal by Sturges was valid or not.</p> <p>Rainy. Clark was the case of a distress after a total surrender of the lease. Here a new lease was substituted, and the rent was payable immediately.</p>

On demurrer to the declaration. The plaintiff declared in assumpsit, that on the 25th day of July, 1825, W. F. and C. E. Clarke, according to the usage and custom of merchants, &c. made their certain bill of exchange, &c. dated on that day, directed to the defendants, by which they requested the defendants, 90 days after date, to pay to the plaintiff, or bearer, 400 dollars ; and take up their note given to William and Henry B. Cook for that amount, dated April 19,1825 ;…

<p>Where goods paid forin cash6, no time being on for the p iyment, ery*anpayment are aim- and the vendor may refuse to deliver without actual pay-ter*1* bein»ata condition of But if hede-payment'^the property pass-condition is waived; and tho’ the ven-dee afterwards uoverwiUnot lie for the poods.</p> <p>otherwise, it theyS’are *⅛-tained by the ttivanwof the vendee. If the goods be delivered menu the ven’-dee may avail himself of a sat off against Per Sotittge' CA. J. deliver-Rm theof0pithe court.</p> <p>If the ven-dee become, bankrupt, the vendor may stop the goods in trttmilu, Per Harare, Ch. J. ⅝⅞⅞⅜⅞⅜ lítk epiáw.t of fftt cm'ri.</p>

Slander, for accusing the plaintiff of perjury, tried at Montgomery circuit, in December, 1825, before Will-IAMS (J. Judge. The defendant gave a notice, that he would prove special matter on the trial in justification of the slander, setting forth in his notice that the plaintiff had perjured herself, in falsely swearing to certain facts on a trial between her father and one Vrooman.

Osr demurrer to the declaration m covenant. The ac- . tion was upon a covenant in a conveyance by way ot lease and release, of certain land at Goshen, in Orange county ; and set forth, that the testator thereby conveyed the land in fee to the plaintiff and one 5. Townsend, now deceased, on the 12iA and 13th days of October, , .

<p>AcStosignee, or fact», mating advances on the goods of his consign- or, or principal, to an amount even beyond their value, is yet bound to obey the instructions of the latter as to the iho,e thLTbe no agreement to that effect. And if, being instructed to sell immediately,he refuse the first offer, in expectation of a more favorable market ; and afterwards sell at less than the offer ; he i. liable, thonch lie act in perfect ¿mod faith.</p>

Ejectment for part of military lot No. 43, in Sempro-nius, in the county of Cayuga, tried at the circuit in that county, September 8th, 1824, before Tiiroop, C. Judge, At the trial, the plaintiff proved the patent of the lot to Schreider the soldier, dated July 8th, 1790 ; and a convey-anee of all his expected military bounty land lrom him to C. Loop, the deceased father of the lessors of the plaintiff; and under whom they claimed as heirs, dated in the spring or summer of…

Ejectment for a part of lot No. 5, in Lysander, tried at the Oswego circuit, in December, 1824, before Throop, C. Judge. At the trial, the plaintiff insisted that the defendant had entered upon the premises in question, under a contract to purchase them of the lessors of the plaintiff.

On error from the Warren common pleas. The action in the court below was ejectment on the demise of Caldwell against Dickenson; tried in the court below at its Jan- , uary term, 1823. The declaration was returnable at its May term, 1821. It contained but one count, and one demise, which was laid on the 8th of September, 1817.

Os demurrer to the first and second counts of the dec-nation. The first count stated, that on the 1th day of December, 1822, in consideration that one Wm.

Assumpsit, tried at the New-York circuit, January 20th, 1826, before Edwards, C. Judge, At the trial, the plaintiff had no evidence to sustain his ■* ■ , action except what wTas derivable from a commission *ssuefl in his behalf, and executed in the cause at the city of Boston. The direct interrogatories administered under this commission, were signed by the attorneys for the plaintiff, thus : “ Ward and Hoyt.

Assumpsit by the plaintiff, an endorsee, against the defendants, endorsers of a promissory note. 4The declara-^ou stated that the note was for $800, payable to Canfield & Co. ; by them endorsed to the defendants; by them to Doremus ⅜ Wilbur, (the latter of whom, as survivor of Doremus, is the plaintiff;) by them to Bostwick & Sterling; and by them to the Bank of New-York.

Ón error from the C. P. of Tioga. The cause came to that court by appeal from a justice’s court. The action was by Williams against Smith, for ⅜⅛30 debt, for the defendant’s unlawfully demanding and taking toll of the plaintiff at the middle gate on the Ithaca and Oivego turnpike road. In the common pleas, Charles Pumpelty, a stockholder of the corporation who owned the road, was drawn as a juror.

<p>On demurrer to the defendant’s second plea. The ac-iion was debt for $500, under the 252d section of the act to reduce the several laws, relating particularly to the city of New-York, into one act. (2 R. L. 441.) The deciar-ation recited the 251st, 252d and 265th sections of that act; together with the 1st and 4th sections of the statute, (sess. 43, ch. 222 ;) and averred that the defendant was master of the schooner Penobscot Packet; and on the 1st oí July, 1823, he arrived in the port of New-York from Halifax ; and entered the schooner at the custom house, That a certain alien was brought in the schooner; and suffered to land before any bond had been given, #srequir- , , „ , . , , . . . - , ed by the 252d section, though it was required by the mayor, in the penalty of $300 ; and without any permission in writing from the mayor or recorder as required by . . that section.</p> <p>The second plea was, that neither the mayor nor re-r ’ " i corder of New-York ever required the bond from the defendant, concluding with a verification.</p> <p>Demurrer and joinder.</p> <p>The master had no right to land an alien passenger, without both a bond and permission in writing under the 252d section. i »• . , ,, , , , The permission is the only evidence that the bond is dis-pensedwith. The plea is also bad, because it justifies, without confessing the landing, if we were bound, in assigning the breach, to negative both bond and permission, the plea must be equally broad. (1 Chit. PI. 327. id. 509. 20 John. 206 18 id. 30.) As a plea to the whole declaration, we could not traverse it. Unless the negative to ⅜ permission is mere surplusage, it should be met. (3 John. Rep. 206. 2 East, 452.) The defendant at least should have shown by his plea, that he applied to the mayor or recorder for a permission. Till that is done, they know nothing of the landing. The statute should be construed according to the reason of the case. (3 Cowen, 89.) The excuse must be fully shown. (1 Gall. 157.) A permission, if granted, should have been pleaded in the very words of the statute. (6 T.R. 720.)</p> <p>If the master reports his passengers, and the mayor and recorder neglect to require a bond, the penalty does not attach. A permission is never required after the master has reported his passengers, unless a bond is first required by the may- or or recorder, and the penalty is named, and the master delays or neglects to give the bond. The naming of the penalty, and requiring the bond, should precede the action for the penalty of the statute. This being denied by the plea, it is sufficient. They cited Bac. Abr. statute (I) pi. 10.</p> <p>They also contended that the statute is unconstitutional and void. (Gibbons v. Ogden, 9 Wheat. Rep. 1.)</p>

<p>The mastef of a vessel, when abroad, ¡s the agent of haTpower to make con-⅛? tofreighti are the owners? ¡s *“ board, and extending^ the theP™ar^0 he is not bound ⅛⅞'«mtract" But, to relieve himself from liability, he ““tst 'J'e yas exciu-fog^to^thé ⅛ he must shew thou”h he was on percargo. no^s ““¡,®* one of the b^rcTa?3 su? percargo; and was the case, de-™i ship ^re-for transportation, without</p> <p>the knowledge of (he owners, and which were not put in the freight list; the money being stolen on the voyage ; held, that the owners were liable.</p>

Ejectment, for a lot of ground in Oak Street, in the 4th ward of the city of New-York, tried at the New-York circuit, on the 19fft of January, 1826, before Edwards, C. Judge ; when a verdict was taken for the plaintiff, subject to the opinion of the court. The lessor of the plaintiff claimed under the will of Elias Brevoort, her father, deceased.

Assumpsit, tried at the Neiv-York circuit, June 24th, 1824, before Edwards, C. Judge.

Ou error from the Washington C. P., where the cause ... . ... Was tried on appeal from a justice’s court. The action ivas case, by Humiston against Harlow, for a nuisance, in wrongfully placing logs and tree tops in the public highway, by means of which, the plaintiffs horse, being frightened, ran upon a tree top, and was killed.

Ou motion, by the defendant, to set aside the report of referees, which was in favor of the plaintiff. The facts are stated in the opinion of the court.

<p>On information in nature of a quo warranto. The pleadings were as follows :</p> <p>... Albany county, ss : Samuel A. Talco tt, attorney genera^ People of the state of Neto- York, who sues for the said people in this behalf, comes here before the jus-^ces °f the people of the state of New-York, of the suPreme court of judicature, of the same people, on the 8th day of March, 1825, in this same term of February; and f°r the said people, gives the said court here to understand and be informed, that The President, Directors and Company of the Bank of Niagara, at Buffalo, to wit, at Al--h®wjt,inthe county of Albany, for the space of six months now last past, and upwards, have used, and still do use, without any w arrant,grant or charter, the followingliberties, privileges and franchises, to wit: that of being a .... , , . , , . , , ⅜ body politic and corporate in law, tact and name, by the name 0f e president, Directors and Company of the Bank of Niagara, and by the same name to plead and be impleaded, answer and be answered unto ; and also the following liberties, privileges and franchises, to wit, that of being, or becoming proprietors of a bank or fund for the purpose of issuing notes, receiving deposits, making discounts, and transacting other business which incorporated banks may lawfully transact by virtue of their respec-live acts of incorporation ; and also, that of actually issuing notes, receiving deposits, making discounts, and carrying on banking operations, and other monied transactions, which are usually performed by incorporated banks, and which they alone have a right to do ; all which said liberties, privileges and franchises the President, &e. aforesaid, during all the time aforesaid, have usurped, and still do usurp upon the said people, to their great damage and prejudice ; whereupon, the said attorney general prays the advice of the said court in the premises, and due process of law against the President, Directors and Company of the Bank of Niagara, aforesaid, in this behalf, to be made, to answer to the said people, by what warrant they claim to have, use and enjoy the liberties, privileges and franchises aforesaid.</p> <p>And now at this day, &c. (imparlance to August term, 1825, and appearance of the defendants, by T. Van Vcchten ⅜ E. Baldwin, their attorneys.)</p> <p>And the said President, Directors and Company of the Bank of Niagara, having heard the said information read, complain, that, under color of the premises in the said information contained, they are greatly vexed and disquieted ; and this by no means justly ; because, protesting that the said information and the matters therein contained, are insufficient inlaw, and that they need not, nor are they obliged, by the law of the land, to answer thereto : yet, for plea in this behalf, the said President, &c. say, that by a certain act of the legislature of the people of this state, passed on the 17iA day of April, A. D. 1816, entitled “An act to incorporate the bank of Niagara,” they the said President, &c. were ordained, constituted and declared to be, from time to time, and until the 1st day of January, A. D. 1832, a body corporate and politic, in fact and in name, by the name of The President, Directors an(l Company of the Bank of Niagara ; and by that name, it is enacted and declared, in and by the said act, *^at they, the said President, &c. and their successors, until the said 1st day of January, A. D. 1832, may, and shall have succession and shall be, in law, persons capable of suing and being sued, pleading and being implead-ed, answering and being answered unto, defending and being defended, in all courts and places whatsoever, and in all manner of actions, suits, complaints, matters and causes whatsoever ; as by the said act of the legislature Of the people of the state of New-York, reference being thereunto had, will, among other things, more fully and at large appear. And the said President, &c. further say, that by the force of the said act of the legislature, and of the provisions thereof, they w'ere created and constituted, and still continue to be, and are a body politic and corporate in fact and in name, and are entitled to do all lawful acts, and to have, use and enjoy all the rights, liberties, privileges, franchises and immunities granted to them, and conferred upon them, by the said act, and by the law of the land : by virtue whereof, they, the said President, &c. for all the time in the said information in that behalf mentioned, have used and exercised, and still do use and exercise, the liberties, privileges, and franchises of a body politic and corporate, in law, fact and name, by the name of The President, Directors and Company of the Bank of Niagara ; and, by the same name, suing and being sued, pleading and being impleaded, defending and being defended, answering and being answ’ered unto, in all courts and places whatsoever, and also the liberties, privileges and franchises of being and becoming proprietors of a bank or fund, for the purpose of issuing notes, receiving deposits, making discounts, and transacting other business which incorporated banks may lawfully transact, by virtue of their respective acts of incorporation ; and of actually issuing notes, receiving deposits, making discounts and carrying on banking operations, and other monied transactions which are usually performed by incorporated</p> <p>banks. And the said President, &c. have claimed, used and enjoyed, and yet do claim to have, use and enjoy, all the liberties, privileges and franchises, allowed to, and conferred on them, in and by the aforesaid act of the said legislature, as it was and is lawful for them to do. Without this, that the said President, &c. during all, or any part of the time mentioned in said information, have usurped or do still usurp the said liberties, privileges and franchises, mentioned in the said information, or any of them, upon the said people of the state of New-York, in manner and form, as by the said information is above supposed ; all which several matters and things, they, the said President, &c. are ready to verify, &c. Whereupon, they pray judgment, and that the aforesaid liberties, privileges and franchises, by them claimed in manner aforesaid, may be allowed and adjudged to them, the said President, Directors and Company of the Bank of Niagara; and that they may be dismissed and discharged by the court here, of and from the premises above charged upon them, &c.</p> <p>And the said Samuel A. Talcott, attorney general, having heard the said plea of the said President, Sfc. for the said people, &e. saith, that the said people ought not to be barred from having their aforesaid information against the said President, &c. because, he says, that the said President, &c. after their incorporation, did wilfully, or negligently, so transact and manage the affairs of the said corporation, that, afterwards, to wit, on the 1st day of January, 1818, the total amount of debts due by the said corporation, over and above the specie, then actually deposited in the bank, did exceed three times the sum of the capital stock, subscribed and actually paid into said bank y and this, &c.</p> <p>And the said attorney general further saith, that the said people ought not to be barred, &c.; because, he says, that after the passing of the act of incorporation, in the plea of the said President, &c. mentioned, to wit, on the said 1st day of July, 1819, they, the said President, &c. did refuse, on demand being made at their banking house, during the regular hours'of doing business, to redeem in specie, or other lawful money of the United States, the bills, notes and evidences of debt issued by the said President, &c.; and the said President, &c. did not thereupon wholly discontinue and close their banking operations, by way of discount and otherwise, until such time as the said President, &c. did resume the redemption of their bills, notes, and other evidences of debt; but on the contrary thereof, after such refusal to redeem their said bills, notes and other evidences of debt, and before they resumed the redemption thereof, to wit, on the 2d day of July, in the year aforesaid, and at divers other days and times, the said President, &c. did receive deposits, discount notes, and issue promissory notes of the said President, &c. ; and this, &c.</p> <p>And the said attorney general further saith, that the said people ought not &c.; because, he says, that after the passing of the said act of incorporation, in the said plea mentioned, and after the said President, fyc. had entered upon the business of banking, to wit, on the 2d day of July, 1819, large amounts of the bills, notes and evidences of debt of the said President, &c. had been put into circulation by the said President, &c. and then were in circulation ; and that while the said bills, notes and evidences of debt were in circulation, to wit, on the day and year last aforesaid, the said President, &c. by the fraud, neglect or mismanagement of them, or of some or all of their officers or agents, became wholly insolvent, and unable to redeem the said bills, notes and evidences of debt, so in circulation, in specie or other lawful money of the United States; whereupon, the said President, &c. to wit, on the day last aforesaid, discontinued, ceased and closed their banking operations, and from that time after-wards, to wit, until the lsf day of October, 1824, neglected to resume their banking operations, either by way of discount or otherwise ; and this, &c.</p> <p>And the said defendants, as to the said plea of the said Samuel A. Talcott, attorney general, first above pleaded, &c. in reply to the aforesaid plea of them, the said defendants, protesting that the same replication, and the matters therein contained, are not sufficient in law, to convict them, the said defendants, of the premises in the said information above charged upon them, nor to remove them from the liberties, privileges and franchises aforesaid, and that they need not, nor are they bound by the law of the land, to answer thereto ; yet, for a rejoinder in this behalf, the said defendants say, that they, the said President, &c. did not, after their incorporation, wilfully or negligently so transact and manage the affairs of the said corporation, that on the 1st day of January, 1818, or at any time before or after the said day, the total amount of debts due by the said corporation, over and above the specie then actually deposited in the bank, did exceed three times the sum of the capital stock subscribed and actually paid into said bank, in manner and form as the said attorney general hath, for the people, &c. above in his said replication, in that behalf alleged ; and of this, they, the said defendants, put themselves upon the country, &c.</p> <p>And the said defendants, as to the said plea, &c. secondly above pleaded, &c. in reply, &c. say, that the said people, &c. ought not, &c. because they say, that though true it is, that after the passing of the act of incorporation, in the plea of them, the said defendants, mentioned, to wit, on the day in the said replication mentioned, they, the said defendants, did refuse, on demand being made at their banking house, during the regular hours of doing business, to redeem in specie, or other lawful money of the United States, the bills, notes and evidences of debt issued by them, the said defendants, as in the said replication is alleged ; yet the said defendants in fact say, that they did themselves wholly discontinue and close their banking operations, by way of discount and otherwise, until such time as they, the said defendants, did resume the redemption of their bills, notes and other evidences of debt, without this, that after such refusal to redeem their said bills, notes and otherevidences of debt, and before they resumed the redemption thereof, at the time mentioned in said replication in that behalf, or at other days or times, they, the said defendants, received deposits, discounted notes, and issued promissory notes of them the said President, &c. and of this, they the said defendants put themselves UP011 the ^untry, &c.</p> <p>And the said defendants, as to the said plea, &c. thirdty above pleaded, &c. in reply, &c. (protesting that it is insufficient in law, &c. and that they did not become insolvent as therein alleged;) yet for a rejoinder, &c. the said defendants say, that though true it is, that after the passing of the said act of incorporation, in the said plea mentioned, and after they, the said defendants, had entered upon the business of banking, to wit, on the day mentioned in the said replication in that behalf, large amounts of the bills, notes and evidences of debt, of them, the said defendants, had been put into circulation by them, the said defendants, and then were in circulation, and that while the said bills, notes and evidences of debt were in circulation, to wit, on the day and year mentioned in the said replication in that behalf, they, the said defendants, became unable to redeem the said bills, notes and evidences of debt, so in circulation, in specie, or other lawful money of the United States ; and that, thereupon, the said defendants, on the day in the said replication in that behalf mentioned, discontinued, ceased and closed their banking operations ; and from that time, for a long time afterwards, to wit, until the day and year, in the said replication in that behalf mentioned, neglected to resume their banking operations, either by way of discount or otherwise, as in the said replication is alleged ; yet the said defendants, in fact, say, that in and by the act of the legislature of the people of this state, in the plea of the defendants above mentioned, wherein and whereby they, the said defendants, were ordained, constituted and declared to be a body corporate and politic, in fact and in name, in the manner set forth in said plea, it was, among other things, enacted, that if, at any time after the passing of said act, the said President, Directors and Company, should refuse, on demand being made at their banking house, during the regular hours of doing business, to redeem in specie, or other lawful money of the United iStates, their said bills, notes, or other evidences of debt issued by the said company, the said President, Directors and Company should, on pain of forfeiture of their charter, wholly discontinue and close their said banking operations, either by way of discount or otherwise, until such time as the said President, Directors and Company should resume the redemption of their bills, notes, or other evidences of debt, in specie or other lawful money of the United States, as by the said act of the legislature of the people of the state of Neio-York, reference being thereunto had, will, among other things, more fully and at large appear.</p> <p>And the defendants aver, that at the time of their refusal to redeem in specie, or other lawful money of the United States, their said bills, notes and other evidences of debt, as herein before stated, and until the 28th day of May, A. D. 1825, they wholly discontinued and closed their said banking operations ; and that on the said 28th day of May, &c. they resumed the redemption of their bills, notes or other evidences of debt, in specie or other lawful money of the United States ; and have, ever since that time, and still do continue to redeem the same, in manner aforesaid ; and this, they, the said defendants, are ready to verify, &c. wherefore, &c. (as in the plea.)</p> <p>Issue to the country on the 1st and 2d rejoinders ; and general demurrer to the 3d and last. The defendants joined in demurrer.</p> <p>made the following points : 1. The infomation is correctly brought against the defendants, by their corporate style, for the purpose of obtaining judgment of ouster, or of sei-sin of their franchise of being a corporation, for neglect or misuser. 2. Non constat, upon the information, that those who have assumed to act as such corporation under the name mentioned, ever were a corporation. 3. The information is good at all events, for the undue exercise of the other franchises enumerated, even if it should be deemed objectionable to bring it against the corporation by its cor-poraie name, for usurping the franchise of being a corporation. And since there have been pleadings .over, and a demurrer, if the information is, on the face of it, good for any part, it cannot now be objected to. it is like the case of a general demurrer to a whole declaration consisting of several counts, one count being good. 4. The replication sets forth sufficient causes of forfeiture ; and by pleading over, if there are any defects in the replication, they are cured. 5. The rejoinder, as far as embraced by the demurrer, admits enough to forfeit the charter.</p> <p>stated these points : 1. The information against the defendants as a corporation, is bad ; because it does not state any cause of forfeiture. 2. This defect cannot be supplied by the replication; but if it can, then, 3. the replication is bad for uncertainty.</p> <p>lie said, so far as the information seeks a forfeiture, and a fine for the usurpation, this proceeding is in the nature of a criminal prosecution. The plea is a direct answer. It sets forth the statute, and that the defendants organized a bank under it, which are admitted by the replication. This destroys the gravamen of the information. If so, what becomes of the charge that the defendants exercised banking operations, without warrant or authority ? Has the attorney general a right to say, in his replication, for the first time, “ though you had such warrant, you have forfeited it ?” A forfeiture is not to be presumed; and it must be made a substantive ground of attack in the information. It must be expressly charged in the first instance. The defendants are not bound to set out their title, and negative a forfeiture, which has not been charged upon them. The information alleges a usurpation only. It is good for so much, and no more. This being met, the whole is answered. If it was intended to go for the forfeiture, the precise ground should have been stated, with time, place and circumstance. (Commonwealth v. The Un. F. Ins. Co. in Newburyport, 5 Mass. Rep. 230.) This case shews a plain distinction in the proceedings and judgment, between the two cases of usurpation and for-féiture. In the former, there is a judgment of ouster, in the latter, of seizure. If there be a difference in the judgment, with what propriety can it be pretended there should be no distinction in the information ? It is said that all may come out in the course of the pleadings. But suppose the defendants do not choose that this should be so : suppose they insist on having the true cause spread upon the information : have they not a right to do so ? In England, the charters of incorporation are deemed mere private grants ; and the attorney general is not presumed to know either of the grant or its extent. Not so of the corporation in question. It is created by a public act. Let the attorney general, then, state precisely the nature of the act which has produced a forfeiture. There being no such act stated, is the replication consistent with the information? No. It is a departure. The information admit.*? the corporate existence of the defendants. The replication insists on a forfeiture. This order makes the latter the expositor of the charge, instead of the information. If it be insisted that the act of 1825, (sess. 48, ch. 325, s. 7,) gives a scire facias, or quo ivarranto, in this case; the answer is, it has not prescribed the form. This must be according to the common law. Did not thé legislature mean that the attorney general should proceed for the forfeiture itself ? And could it have intended that he may do this without saying so in the information ? Suppose a default for want of a plea : could the attorney general have taken such a judgment upon this information as the statute directs ? No. He could only have judgment of ouster for the usurpation.</p> <p>As to the effect of pleading over, we deny usurpation ; and then the attorney general comes and shows a case of forfeiture, to which we rejoin. We say this is a departure ; which, it will not be denied, is matter of substance, and bad on general demurrer. And it follow's, that it is bad after pleading over.</p> <p>The replication is defective in itself, independent of the departure. It relics upon the fraud, &c. of the defendants, or their officers. Admit the fraud of the officers: the defendants do not admit their own fraud. The fraud,; or other acts charged upon the officers, will not work a forfeiture. What these acts are, does not appear. No single act is pointed out. Still, the defendants may show it was not their own fraud.</p> <p>There is a total want of certainty and precision. It is not stated whether there was fraud, or mismanagement, or neglect. The allegation is in the alternative. We certainly admit, by pleading over, no more than is alleged. It is not said whether the fraud was wilful and actual, or inerely constructive. Which of these alternative particulars may be a ground of forfeiture, it is not said. It may be this, that or the other. It is also defective in not specifying the particular acts of violation or omission. To say fraud or mismanagement, is not enough. The cause of forfeiture does not consist in the sound, but in the act.</p> <p>But the replication is answered by the rejoinder. The ground of forfeiture is the defendants continuing their operations after they ceased to redeem their bills, and before they resumed specie payments. In such a case, the act declares the forfeiture of the charter to be the consequence. This provision is, in substance, an express authority to resume their banking operations whenever they resume their payments. The object was, to prevent further issues of paper while they were unable to redeem it • and it is always a good answer, that they have followed the directions of the act. If there be a limit to the time during which they may forbear business and forbear payment, who is to judge of it ? There is a period beyond which the charter cannot endure. But till that time arrive, the legislature have not only sanctioned, but they have enjoined a cessation of all banking operations under given circumstances. The general act of 1825, before cited, (section 6,) has limited the period to one year. If the court may judge of the time, where was the necessity of this legislative interference ?</p> <p>At any rate, the legislature may do an act which amounts to a waiver of any forfeiture of (his kind already incurred, And have they not done so by passing a statute which de-elares there shall be a forfeiture by certain acts, after its passage ? They recognize all corporations as operative, and as not forfeited by any acts of omission or nonuser as to which there was no limitation of time before the act passed.</p> <p>Indeed, is not the acquiescence of the state for this length of time without any prosecution, in itself, a sanction to the bank, in the resumption of their banking business ?</p> <p>The replication does not depart from the information. The latter is not inconsistent with the former. True, we admit the corporation to have existed ; that it once had the privilege of banking. Neither the information nor replication deny this. But in the replication we follow out the subject, and allege a forfeiture. Having forfeited them, their exercise is the usurpation of which the information complains. Thus the case goes on according to the course of pleading in quo warranto. The information asks, by what authority do you exercise these privileges ? They say wc should ask in a different form; why do you continue to exercise them? Where is the material difference ? The judgment follows the nature of the case as it appears upon the pleadings, whether there be a default or verdict. A default upon the information would have admitted the usurpation; though not perhaps the reason and nature of it, so particularly 'as after it was explained by the replication. The statute of 1825 (section 7) is positive that the corporation shall be prosecuted by sci./a. or information, Sic. and that too in cases of forfeiture. This information follows the express provisions of the act. We cannot sue a corporation, unless by its corporate name. An action against the individuals would not be an action against the corporation. The objection that there is a departure, would apply to every proceeding by information in England. There is no difference in the mode of setting forth a usurpation, by pleading, whether it arise from the provisions of a private charter, or a public act of the legislature. In every case where the information ivas general, and the defendant justified, (and it is so in every English case,) the courts must have sustained the proceeding on grounds which are applicable here.</p> <p>The authorities, however, are abundant, that the defects of the information, if there be any, are cured by the defendants’ pleading over. (8 John. 110. Cro. Car. 288. Frith's case, Cro. Eliz. G8. 12 Mod. 459, 46G, per Holt, Ch. J.)</p> <p>True, the replication is in general terms ; but it may be added, that the rejoinder admits all that is slated by it : thus presenting the question, whether a disability to pay arising from the fraud, mismanagement, or neglect of the corporation, or its agents, is a ground of forfeiture. It admits a case which never could arise from honest inability .</p> <p>It is said the acts charged, may not be those of the whole company". I will not stop to inquire what the act of the company" is, if it be not the act of their agent; nor whether the company w’ould be liable, as such, on a note made by their agent. If the act of the agent is not to be considered cause of forfeiture, it is difficult to see how the charter can be forfeited, either by" nonuser or misuser ; cases provided for, both by common law, and by the statute of 1825. Where is the ease in which the fraud, mismanagement, or neglect has been the act of all the individuals of a banking company ? If this be necessary, when shall we find a case in which the charter can be forfeited ? Wherever an agent acts within his powers, his is the act of the company ; and may be treated as such to all intents and purposes ; and this, whether it be in carrying on their business, or entirely desisting.</p> <p>The company contend for allowing them time to lie by, in a dormant state. This, it is said, they have a right to, under the 10th section of the act of incorporation. (Vid. sess. 39, ch. 167, s. 10, 13.) But the 13th section contains the only provision for nonuser with impunity"; and this restrains the right to the 1st of January, 1817. But what does the 10th section grant ? That the defendants may lie still as long as they" please ? No such thing, But if they do stop payment, they shall not issue paper before resuming payment, upon pain of forfeiture. The legislature say, “ remain dormant as long as you dare, without resuming payments ; and we leave the general law to take hold of you.” Thai law declares nonuser to be a cause of forfeiture. The legislature add another cause to the list of misuser. Does it follow that they intend to sanction a misuser to an unlimited extent ?</p> <p>The rejoinder denies insolvency ; but admits a temporary inability to pay debts. What is this but insolvency ? Whenever one becomes unable to pay his debts according to the ordinary course of business, he is insolvent. Here the defendants admit, in terms, that they were totally insolvent, for a long time. If the mere act of making payment is an answer, the defendants may defeat any proceeding against them by information or otherwise, very easily. All they have to do, is to pay a trifle at their counter ; and plead it, either as a general bar, or puis darrein continuance, according to the time of the payment.</p>

On information in nature of a quo warranto. The pleadings were nearly the same in this, as in the preceding case of The People v. The Bank of Niagara, (ante, 196.) The information was filed in both cases at the same time ; and the difference in the pleadings will appear by a summary of them given in the opinion of the Court. macje satne points as in The People v. The Bank of Niagara ; and also insisted on the special causes of demurrer mentioned by the court. He cited 5 Mass.

On information in nature of a quo warranto. The information was filed at the same time, and was in the same words, mutatis mutandis, as those in the two preceding cases of The People v. The Bank of Niagara, and The Same v. The Bank of Washington & Warren, (ante, 196, 211.) The particulars in which the subsequent pleadings differ, will be found stated in the opinion of the court, where a summary of all the pleadings is given, sufficiently full to render any statement of them…

On demurrer to the declaration. The first count was in debt for $200. “ For that whereas, by a certain final judgment or decree, made before Abraham A. Van Burén, Esquire, surrogate of the county of Columbia aforesaid, in a certain matter depending before said Abraham A. Van ⅜ 1 ° . . , Burén, surrogate of the county aforesaid, wherein Anson Bakin and others, heirs at law of Joshua Dakin, deceased, were plaintiffs, and Abner Bristol and Lydia Bristol bs wife, administrator…

Assumpsit on a parol promise of indemnity, tried at the Jefferson circuit, December 20th, 1825, before Williams, C. Judge ; when a verdict was taken for the plaintiff subjec*to *he opinion of this court. The declaration contained two counts.

Trespass. The declaration contained four counts. ^10 ^rst was trespass quare domurn fregit, el de bonis, &c. ; the second of trespass quare clausum fregit, et de t>onis, &c. ; the third of trespass quare clausum fregit; and the fourth of trespass de bonis asporlatis.

On demurrer to the plaintiffs’ replication. The first count of the declaration stated, that on the \Ath of February, 1818, and for a long time before and after, the defendant was a public notary of this state, &c,; and in consideration of certain reasonable fees and reward, to be paid to him by the plaintiffs, be then undertook and promised to give due notice to John C. Spencer, of the nonpayment of a certain promissory note, dated August 12th, 1817, payable to Spencer, or…

Ejectment, tried at the Putnam circuit, October, 1824, before Williams, C. Judge. At the trial, the following facts appeared : Joshua Nelson died in 1817, seized in fee of the premises in question ; and the wife of the lessor of the plaintiff was a grand-daughter of the deceased; and, as one of his heirs, entitled to one third of the premises in question.

Assumpsit for goods sold and delivered, and goods 0 1 ~ bargained and sold, tried at an adjourned circuit in the c*ty and county of New-York, January 30th, 1824, be-^ore ®DWARDS) U. Judge ; when the jury found a verdict for the plaintiffs, for 471 dollars 90 cents, being the price, with interesL of 66 bales of cotton, (after deducting $ 1800 paid by the defendants,) which the plaintiffs claimed on the trial to have sold and delivered to the defendants.

<p>ni ^ ^question, the aI!3War ■which will criminate he'Vas'n'o’ob^ Jection, may answer it.</p> <p>His privilege is personal only : but it is the duty of the court to advertise him of if.</p> <p>And where, in an action for breach of promise of marriage, the defendant asked his witness if he ever knew of any person having criminal connexion with the plaintiff; and the judge would not suffer the question to be pul; but himself told the witness he might, if he pleased, state any improper intercourse, if there had been any between the plaintiff and him ; held, that this was not a violation of the rule.</p> <p>A jury may infer mutual promises of marriage from the defendant’s visits to the plaintiff as a suitor, and his declarations that he had promised to marry the plaintiff. ¡t / After a defendant has once broken a promise of maniage, his offer to renew it, is no de-féace to an action for the breach.)</p> <p>⅛ In an action for breach of promise of marriage, if the defendant give notice, with his plea, that he will prove that the plaintiff has been guilty of fornication ; but fail entirely to show it on the trial,the jury may consider this in aggravation of damages.</p> <p>The damages in this action are in the"sound discretion of the jury, under the eircush. stances of ear,ft particular case-.</p>

Covenant on a sealed agreement, dated August 14th, 1824, reciting that Washburn had occupied for three years, certain land of which oneHallenbeck died siezed ; and that Washburn also occupied it at the date of the agreement, at $58 rent for the first, and $65 for the two last years ; that half this rent was claimed by one More ; that Hallenbeck left an infant son and a widow, who married the plaintiff.

<p>On error from the C. P. of New-York. Astor brought assumPs^ against Aymar and Aymar, in the court below, for the value of certain bear skins, shipped on board the defendants’ vessel at New Orleans, for New-York, but which were destroved by rats on the voyage. * * J</p> <p>⅜ By the bill of lading, signed by the master, the receipt bear sltins was acknowledged, to be delivered in ° good order and well conditioned to the plaintiff in New-York, the dangers of the seas, and of capture, excepted.</p> <p>When they were delivered in Neio-York, they were damaged by rats ; and the parties went into evidence in the court below upon the question whether the vessel was prudently managed for the avoiding of rats, or whether the master had been negligent in that respect.</p> <p>The defendants offered to prove, that both at New- Orleans and New- York, damage by rats was considered, and treated by the usage of trade, and merchants, as a peril of the sea. The court below excluded the evidence, and the defendants excepted.</p> <p>The court charged the jury that the defendants were common carriers, and liable as such for damage done, unless by the act of God ; or the perils of the sea, excepted in the bill of lading. That damage by rats was not a peril of the sea. And the defendants excepted.</p> <p>Verdict and judgment for the plaintiff below-.</p> <p>The evidence of the mercantile meaning of the words, “perils of the sea,” should have been received. (4 East, 130. 2 John. Rep. 335, 549. 7 id. 385. 5 B. ⅜ P. 213. Park on Ins. 44, & seq. Abbot on Ship. pt. 3, ch. 4, S. 2.)</p> <p>It is true, Hunter v. Potts, (4 Campb. 203,) held that a loss by rats was not a peril of the sea; but that case went on Rohl v. Parr, (1 Esp. Rep. 445,) which presented a question of fact, and was decided by a jury. Dale v. Hall, (1 Wils. 281,) is directly opposed to Ganiqucs v. Cox, (l Bin. 592,598.)</p> <p>At any rate, the liability of the defendants below should have been put to the jury upon the question of actual negligence.</p> <p>relied on Rohl v. Parr, (1 Esp. Rep. 445,) Hunter v. Potts, (4 Campb. 203,) and Dale v. Hall, (1 Wilson, 281,) as in point for the defendant in error. He also cited Phil, on Ins. 251 ; Abbot on Ship, pt. 3, ch. 3, s. 9.</p>

Assumpsit upon a valued policy of insurance, dated September 22d, 1823, on part of 800 bushels of wheat, on board the schooner Lodge, Farrow, master, on a voyage at and from North-Carolina to New-York, containing the clause, “ the captain at liberty to act as pilot,’1 and the common memorandum, by which, among other things, grain of all kinds is warranted free from average, unless general.

On error from the C. P. of Columbia. Minklaer sued ⅝ before a justice, in case, for neglect of duty as overseers of the poor of the town of Clermont, in not providing for John 31, Gill and his wife, two paupers belong-that town.

Ejectment, tried at the Cayuga circuit, March 10th, K 1825, before Throop, C. Judge; when a verdict was taken for the plaintiff, subject to the opinion of the court.

Drain’, for the penalty of ⅞ 12,00(), upon the 4th section 0f |¡,(. statute, for the prevention of frauds, (sess, 10, ch. 44, 1 R. L. 76,) tried at the Albany circuit, in September, '«O-*»* m*. Tlio.

<p>in declaring ,<on the 1st and the statute, 23<T) Gainst unlicensed bankers, it is sufficient to set forth the act so far as it reíales to the offence charged, and then to describe the offence according to the statute, averring* that, by (orce of the statute, the defendant forfeited, fcc. and an action arose, &c. without saying, M contrary to the form of the statute.”</p> <p>An individual keeping an office of deposit for the purpose of discounting notes, is an offender within the act, though the office be not for the purpose of any other banking operation.</p> <p>An individual, keeping an office for carrying on any single banking operation, is within the act. It is not necessary, to subject him to the penalty, that it should be for carrying on banking business generally, or in more than one branch.</p> <p>A declaration under the act, that the defendant kept an office of deposit for the purpose of carrying on banking business and operations, without saying what, is not too general, as it follows the words of the statute.</p> <p>A declaration on a penal statute creating an offence unknown to the common law, and. giving an action, should, in some way, shew an offence against the statute ; but it is not always necessary to say contraformam staiuti. It is enough that the offence appear to be, in truth, against the statute.</p> <p>On a demurrer to the whole declaration, if either count be good, judgment will be for the plaintiff on that count, though the other counts be bad.</p>

Ok demurrer to the defendant’s plea. The plaintiff declared on a covenant, which, on oyer, was as follows : The defendant covenanted to pay certain rent due and in arrear, to one D. Tomlinson, on a certain farm, and all which should become due on the 25th of March, 1825; the whole to be paid on that day ; and the plaintiff covenanted, that on the defendant’s so paying the rent, he, the plaintiff, would give up and discharge a certain bond and mortgage.

Assumpsit for money had and received, tried at the Onondaga circuit, September, 1825, before Throop, C. Judge. it appeared by the N. P. record, that the suit was commenced as early as February term, 1825. The declaration contained the usual money counts. Plea, non as-sumpsit, with notice of set off.

Cotenant, tried January, 23d, 1824, at the New- Yorli circuit, before Edwards, C. Judge. . . , , . , , The action was on an indenture ot lease, dated the 4t/« °f February, 1799, between the defendant as lessor, and one Warner, as lessee of a dwelling house and lot, *n the. city of Neiv-York, habendum, to Warner and his exeeutors, &c. and assigns,, from the 1st of May then next, for, &c. 21 years ; at a rent of $165.

This was an action to recover damages, for the injury & . to, or loss sustained on 5 cases of Leghorn hats, shipped ^7 or^er> and f°r account of the plaintiff by the defendants, resident merchants at Leghorn, on board of the schooner Penguin, bound from Leghorn to Palermo, in island of Sicily; and thence to Boston.

On error from the New-York C. P. The action in the court below was trespass against the defendants, for entering the plaintiffs house in the evening, without leave. Collins suffered judgment by default ; and Taylor pleaded the general issue. On the trial of both upon a venire tam quam, the trespass being proved upon both, Taylor offered Collins as a witness for him. It was objected that he was incompetent ; but he was admitted and sworn.

<p>^ D. took a land, from B.; at the same time giving the latter a secure3”6 the purchase mo-intermarried men Released his equity oí B.^eandtl0died°, M. surviving, his widow, tied to°dower'</p> <p>The pro-fore a°\urro-gate, to ad-measure and set off dower, dence of title in the widow.</p> <p>A release, or conveyance of the equity of redemption by the mortgagor to the mortgagee, extinguishes the mortgage,</p>

Assumpsit for a total loss on a policy of insurance; tried at the Neio-York circuit, in January, 1824, before Ed- „ - WARDS, C. Judge. At the trial, the policv was produced, bearing date the ' r J r _ ° 15th day of March, 1821 ; and was in the usual form of policies on vessels, commonly used by the insurance companies in the city of New-York, partly printed and partly written. The first part was as follows»: “Vessel. By The Ocean Insurance Company.

Assumpsit for 100 dollars, a legacy bequeathed to Mrs. t'ole, one of the plaintiffs, by the will of her late father, William Hardy, deceased ; tried at the Montgomery circuit, June 9th, 1825, before Walworth, C. Judge.

Case, for driving a horse and gig so negligently andun-skilfully, and so ignorantly and carelessly governing and guiding the horse and gig, as to run against the plaintiff, knock her down and injure… Held: that though the injury was the result of negligence merely ; yet, being immediate, the action should be trespass, not case. The only decision to the contrary is Blin v. Campbell. That case was cited in Percival v. Hickey ; but it was not followed.

On demurrer to the declaration. The first count stated, that on the 9th of April, 1823, Castro ⅜ Henriques proPose The second count averred, that C. & H. were in bad credit and unfit to be trusted, at the time of the sale.

Assumpsit on a warranty, that certain cotton, sold by the defendant to the plaintiff, should be of like goodness and \ ° ' quality with certain samples exhibited ; tried at the New-York circuit, January 1th, 1824, before Edwards, C. Judge.

Os motion to set aside the report of referees. The' copy of the declaration served on the defendant’s attorneys was in covenant on articles of agreement executed by the Par^es5 dated March 18í A, 1818, (with profert,) by which, in consideration that the plaintiff (inter alia,) had thereby granted to the defendant, the immediate, quiet, and peaCeable possession of certain premises therein mention-. r 4 . ed, together with the yearly rent, that is to say, one half rent then…

The action in the court below was trespass, by Gould against James, for en-On error from Queens county C, P. tering the close of the former at Lloyd’s Neck, in the town of Oyster Bay, Queens county, and catching, taking and carrying away oysters. Plea, that the locus in quo was, at the time when, &c. a navigable river, or arm of the sea ; 7 ° . . . and a free fishery for any of the citizens of this state. The replication took issue on this fact.

<p>fí16 testat0(? afterwards ejectment, the plaintiff which could not be proved that ^®de several years je8th. an(i ⅛⅛ ,⅛ with M. for sale keeping took it back, for the avow-adding a codicil ; which he did about the Tib of July, 1821. On the 1st day ot March, 1822, his daughter saw a paper in his desk drawer, which she had no doubt was bis will. Between that day, and his going a journey to visit his son, which was in the dpril, next following, she saw him take some papers from the desk, and burn them ; but did not know and could not. say they resembled the will. She saw him also several times engaged at the desk in arranging his papers, a bundle of which he pieced in his trunk. She perused the paper but partially and hastily, «fee. She was, however, satisfied that it was her father’s will, and stated several circumstances calculated to identify it with the will and codicil proved to have been executed ; and she stated other circumstances which had a contrary tendency. The testator died in May, 1822. 'The judge, at the trial, deeming it necessary to shew the existence of the will subsequent to the execution of the codicil; and that this Y/as not satisfactorily done by the daughter’s testimony, nonsuited the plaintiff.</p> <p>Held% (without deciding whether the judge was correct in holding it necessary to shew the existence of the will at any time after adding the codicil,) that there was sufficient ev-y idence upon this point to go to the jury *, and that it should have been submitted to them, as well upon this question, as that of revocation ; that the plaintiff, therefore, should not have been nonsuited.</p> <p>The declarations of a testator, as to the existence of his will, and the place where it may be found, are inadmissible in evidence, though made in articulo mortis.</p> <p>A party in a cause, (e. g. a lessor in ejectment,) is admissible as a witness, to shew the loss of a will under which he claims, in order to let in secondary evidence of its contents.</p> <p>If a subscribing witness to a will, shew it duly executed, though he has forgotten who one of the witnesses was, this is sufficient proof of the execution.</p> <p>Diligent search for a will at the last place of abode of a testator, in a desk where he usually kept his papers, and failure to find his will there, held, a sufficient ground for letting irj parol proof of its contents, though he died abroad.</p>

The plaintiffs having sued the defendant for a large sum of money in assumpsit, and holden him to special bail ; one of their attorneys afterwards gave parol notice to the clerk of the attorneys for the defendant that the suit had been discontinued; and offered to pay the costs, The clerk requested a formal discontinuance ; but the at-r torneysfor the plaintiffs told him this was not necessary, The costs were never demanded of the plaintiffs; but the defendant paid them to…

W. Mulock moved for judgment as in case of nonsuit, for not proceeding to trial at the last circuit in the county f Ddaware. objected, that it did not appear by the a&davit on Which the motion was tounded, that there been any circuit in Delaware since the cause was put at issue. suggested, that the Court would take judicial notice that there had been such a circuit,

J. A. Collier, for the defendant, moved to change the venue in this cause, on the ground that a greater number of witnesses resided in the county to which he sought to change it, than in the county where the venue was laid. objected that the affidavit upon Which the motion was founded did not name the witnesses ; nor state that, as the defendant was advised by counsel, and believed, he could not proceed to trial without their testimony.

moved to set aside á default for want of a plea, on the ground of merits. read an affidavit shewing that, by reason of the defendant’s doubtful circumstances, the plaintiff would be in danger of losing his debt, unless the judgment was suffered to stand as security.

The common pleas of St. Lawrence county had set aside a regular judgment by default against the defendant, in a cause wherein the relators were plaintiffs, and one Taylor defendant, on the ground of merits, on payment of costs. And this court were now moved that a mandamus issue, commanding the C. P. to vacate that rule. The motion w7as not opposed ; but

May term, on the 26iA of May last, a rule was moved for, and taken against the plaintiff, for “judgment as *n case nonsuit, unless the plaintiff shall stipulate and pay costs.” But no stipulation was served by the defendant’s attorney till the 16/A of June thereafter, defendant’s attorney having taken judgment as in case of nonsuit against the plaintiff, A- motion was now made, in behalf of the plaintiff, to se^ ^ as^e > and one question was, whether the stipulation was in…

These were separate actions on the same promissory note, against the several defendants, as maker and separate endorsers. All the causes being noticed for trial at the last Oneida circuit, they were ordered by the circuit judge to be put off, on payment of costs. These were taxed at the full costs of the circuit in each cause.

A writ of certiorari had issued in this cause, in behalf of Munro, to remove into this court the assessment list of highway work made by the commissioners of highways of the town of Mamaroneck, in the county of Westchester, with their proceedings, and the determination of the commissioners in affixing the names of persons mentioned in the list; and the number of days which they determined each person should work for the year ; among whom they named Munró.

J. M’Kown, for the defendants, moved to change the venue in this cause from the county of Steuben to the county of Oneida, on the ground that the action was debt on a judgment of this court; and the venue in the original cause was laid in the county of Oneida ; and the record of judgment filed in the office of the clerk of this court at XJlica, in the county of Oneida.

Richardson sued Wright in the Oneida common pleas for an assault and battery. Issue being joined, the parties stipulated in writing to refer the cause to three persons ; that they should hear it on the pleadings; and that a judgment should be entered on their report. After-wards, the defendant revoked the submission ; but the referees, notwithstanding, proceeded to a hearing, and reported for the plaintiff.

Lampman sued Bennett and others in a justice’s court of the county of Oneida ; and recovered judgment for $^0. The defendants appealed to the common pleas of that county ; and a verdict was rendered for the plaintiff, on trial there, for $3,12|.

Ejectment to recover part of military lot No. 44, in Homer, Cortland county, tried at the circuit in that county, January 25th, 1825, before Throop, C. Judge ; when the following facts appeared : The defendant came into possession of the premises in question, by agreement w’ith Daniel Hoar and Abner Hotch- , . , . j i j kiss, who took possession under a written and sealed contract to purshase of Anthony Marvin, who died in 1811; (and of whom the lessors of the plaintiff are…

Assumpsit for a total loss on a valued policy of insurance on the British brig Francis ; tried at the adjourned 1 * New-York circuit, January 10£A, 1824, before Edwards, C. Judge.

Assumpsit for land sold, money had and received, &c.; tried at the Oneida circuit, in March, 1826, before Williams, C. Judge ; when a verdict was taken for the plaintiff, for $296,30, subject to the opinion of this court. At the trial, it appeared that the plaintiff had, in April, 1822, conveyed a small parcel of land to the defendant, by deed acknowledging the receipt of $300 consideration money. But $10 were, however, in fact, paid.

On certiorari from the general sessions of the peace of the county of Albany. Two justices made an order removing Hannah Cotton, a pauper, from the town of Bern, Albany county, to the town of Knox, in the same county ; and on appeal by Knoxi to the general sessions of Albany count}', that court quashed the order ; on which the overseers of Bern brought the present certiorari.

Assumpsit, on a promissory note, dated Wilmn. N. C. Beer. 1819, by which one B. as principal, and the defendant and others as securities, promised to pay to the order of the plaintiffs, on orbefore the 1st day of January, 1821, $5000, value received, payable and negotiable at the bank of the plaintiffs, with interest from the lsi day of January, 1820. This note was signed thus : “A. L. Gomez” (the defendant,) “ by Leiois Gomez, atty.” after the other makers in their own hand.

<p>On error from the Madison C. P. The action below was replevin by Fort against Smalley and Ratmour.</p> <p>The proceedings were by plaint. The record contain- - iicfi eel a placita of June 15th, 1824. It then stated thatomaZ-ley and Ratmour were summoned to appear, and did appear in the C. P. on the same \bth of June; and that “ Fort does not farther prosecute his bill or action of re-plevin,” &c. Then judgment for the defendants for costs. The record was signed October 16iA, 1824.</p>

Detinue, for certain books of account; tried at the 3 New- York circuit, April loth, 1824, before Edwards, C. Tlldirp • JUQSe J When it appeared, that Murray, the plaintiff, and one r „ -, _r , . , . ,i c - J. P. Mumford,, were partners in trade, under the hrm of Murray &• Mumford.

Ejectment, for part of a military lot, in Cicero, Onondaga county; tried at the circuit in that county, March, 1826, before Throop, C. Judge. At the trial, in the course of the plaintiff’s evidence, it became necessary for him to prove a deed deposited in, and belonging to the clerk’s office of the county of Cayuga, pursuant to statute. The execution of this deed was proved under a commission executed in Connecticut.

<p>Semite, that' the sale of lan.ds' *'SD®d and sealed by the vendor on-ired^tofXnd accepted^ by and which contaron the part of the lat-{®r’ apc°y'“⅛ considera tioa money, may be enforced against the latter by an action of assumpsit. >.</p> <p>And where such a contract was recognized and ratified on the part of the vendees, by an1* endorsement under their hands and seals ; held, that this was a sufficient signing to take the case out of the statute of frauds.</p> <p>Thé endorsement not containing, in itself, or amounting, when taken in connexion with the original contract, to a covenant to pay, and the vendor having tendered a conveyance, held, that he might maintain indebitatus assumpsit for the consideration money.</p> <p>But if the endorsement had amounted to a covenant to pay, the action must have been covenant or debt.</p> <p>7'he covenant by the vendor, was to convey within two years from the date ; and the contract purported to contain a covenant, on the part of the vendees, to pay on receiving the conveyance. The latter took immediate possession, pursuant to another covenant in the contract on the part of the vendor ; and by an arrangement between the parties and A., part of the premises were conveyed to the vendees by A., within the two yeurs, A. having title ; but the time had elapsed when the conveyance for the residue was tendered ; and : for that reason the vendees refused to receive the conveyance; yet, held, that the contract ; was not rescinded; and that the vendees were liable in indebitatus assumpsit for the consideration money.</p> <p>To avoid this, the vendees should have re-delivered possession ; and rescinded the con-⅜ tract in toto.</p> <p>To warrant an action of covenant, the contract must be sealed by the party or his attorney. A mere recognition of the contract, though under seal, will not sustain the action.</p> <p>A written recognition of a contract, void by the statute of frauds, though after ⅜⅛ entered into, will make it binding*</p>

<p>Assumpsit ; tried at the Onondaga.circuit, March 20th, 1826, before Throop, C. Judge.</p> <p>The declaration was against the defendants as joint endorsers to the plaintiff of a promissory note, also endorsed ^y Plaintiff to the Utica Bank, made by one Elias Gu* maer, dated November 23d, 1821, payable to the order of the defendants at the Utica Bank, 90 days after date, for $3000. It also contained the money counts.</p> <p>Plea : 1, the general issue ; and 3dly, a judgment of $3000 confessed byGumaer to Norris, and Badger, one of the defendants, as security and indemnity to the endorsers, February \8th, 1822 ; and October 27th, 1823, execution issued and delivered to the sheriff, at the instance, and under the sole direction and management of the plaintiff, Norris; Gumaer then having property, which was bound and levied on, enough to satisfy it ; but which was dissipated, and the debt lost through the delay and negligence of the plaintiff. Replication : that Badger, not the plaintiff, took the control of the execution ; that the debt was not lost by the plaintiff’s negligence, &c. ; that Gu-maer had not sufficient property, &c., and collection could not be enforced, &e. Issue to the country.</p> <p>On the usual order for a bill of particulars, the plaintiff furnished one, in which he set forth the note verbatim, as with a blank endorsement by the defendants.</p> <p>On the trial, the defendants objected, that a mere blank endorsement would not carry the interest to the plaintiff; on which he filled up the endorsement in the usual form. The defendants then objected that it varied from the bill of particulars ; but the objection was overruled.</p> <p>The defendants then proved that the note was endorsed by both plaintiff and defendants, for the benefit of Gu-maer ; that the money was obtained thereon at the bank, and applied to his use. The maker was himself sworn as a witness for the defendants ; and testified, that from the 21th of October, 1823, to the January next following, he had in his possession personal property to $800, and real estate worth $7000. The plaintiff then asked him if there were not incumbrances or liens, previous to the judgment confessed. This question was objected to as improper, under the pleadings, or if admissible, that the facts inquired of, could not be established by parol. The judge overruled the objection ; and the witness was allowed to state large previous incumbrances bj mortgage and judgment ; and sales tliereon.</p> <p>The plaintiff then offered to show regularly, by records and executions, incumbrances having preference to the judgment and execution mentioned in the defendant’s plea, sufficient to exhaust Gumaer's property. This was objected to, as not admissible under the pleadings ; but the proof was received ; and the facts proposed to be shown Were fully established by exemplifications, executions, &c.</p> <p>The defendants then objected, that the note being an accommodation note, the plaintiff could not recover, till he shewed actual payment of the money by him ; that shewing himself in possession of the note was not enough, without having paid the money to the bank. This objection was overruled, the judge charging that the evidence was, prima facie, sufficient to sustain the action. The defendants excepted to the several decisions of the judge.</p> <p>Verdict for the plaintiff, for $3318,70.</p> <p>now moved for ⅞ new trial. He said the note given in evidence was inadmissible under the bill of particulars. (1 Chit. PL 382.) But if admissible, being an accommodation note, the plaintiff, an intermediate endorsee, could not recover, before actual payment td the subsequent holder, the bank. Endorsers on accommodation paper, are sureties ; (16 John. 70 ;) who cannot recover till they have incurred actual expenses. (8 East, 593.) The liability of the plaintiff was no more than that of the defendants, who endorsed before him. The bank may still sue the latter. In ordinary cases, where the note is voidable for want of consideration or otherwise, the endorsee must shew that he took it in the fair course of trade, and paid a valuable consideration. (1 Carnpb. 100.) That is not done in this case. It is not pretended that this is a note taken in the course of trade. But even if it was so taken, the plaintiff must shew payment to the bank, his endorsee, or some endor-see subsequent to him. (1 Ld. Raym. 742. 4 T. R. 14.And this is especially so of accommodation paper (3 Wits. 13, 346. 1 II. Bl. 640. 1 Cowen, 394, per Woodworth, J.) When the endorser pays, he is remitted to his original rights of holder ; and not till then. Before this, he is not in a situation to maintain an action. Possession of the note by the plaintiff, is not, in the case of accommodation paper, prima face, evidence of payment. Indeed it is not so in any case. (Welch v. Lindo, 7 Cranch, 159. Gorier at v. M’Carty, 1 Yeates, 94.)</p> <p>Proof of incumbrances was inadmissible under the pleadings. The issue was on the amount of property bound by the execution ; not whether there were incum-brances. The evidence offered, admits the amount of property ; but seeks to avoid the consequences by shewing incumbrances. The replication is like one to a plea of an outstanding judgment, by an executor. Admitting the judgment, execution and lien, it should have replied the previous incumbrances specially, or any other matter in avoidance. Evidence canndt be given of matters out of the issue. (1 Phil. Ev. 131. 3 Mass. Rep. 552. 11 id. 313.)</p> <p>But if this evidence was admissible, there can be no doubt that the manner in which it was given, in the first place, was improper. The record evidence alone should have been received. Parol proof was clearly inadmissible. (Bull. N. P. 293.)</p> <p>There can be no doubt, that, if the plaintiff has lost the benefit of the judgment by his lache3, this deprives him of all right to recover. (2 Phil. Ev. 21, note. 7 John. 332. IP. ⅜ P.422.)</p> <p>The variance from the bill of particulars, was produced by the filling up of the blank endorsement on the trial, which is mere matter of form. It was substantially the same before ; and a literal correspondence was not necessary.</p> <p>The possession of the note, and its production on the trial, wereprima facie evidence that it had been paid, if such proof was necessary. There being nothing to rebut its the note must be taken to have been paid. (3 John Cas. 5,260,263. Doug. 636. Chit, on Bills, ed. 1821, p. 14, note (1) and the cases there cited. 3 Wheat. 182, 3. 2 Dali. 147. 15 Mass. Rep. 436. 11 John. 53.) If the defendants had anj objection founded on the original consideration, the onus lay with them. (Chit, on Bills, old ed. 86. 7 John. 361. 2 Campb. 439,440.) The only question is, what shall be evidence of payment ? We admit, with the cases cited on the other side, that when one has endorsed a bill, and he would then sue upon a previous endorsement to himself, he must show payment. But those cases do not go to the evidence. The mere want of consideration between the original parties, is no answer. Holding the note, the plaintiff may fill up the endorsement to himself; and it does not lie with the defendants to object, though he was a mere trustee for the bank. (7 John. 361. 2 Campb. 339,40. id. 5, ⅜ 574. 1 B. P. 648. 4 Esp. Rep. 56.)</p> <p>The proof of previous liens, was clearly admissible. Admit the issue to have been on the sufficiency of the property bound by the judgment or execution mentioned ⅛ the plea ; how could that be determined, without looking to the amount of the previous charges on the property, which reduced it to nothing, and less than nothing ?</p> <p>The proof by parol, was proper. It was like asking a man, “ what are you worth ?” In answer, he is bound to state incumbrances. But whether proper or not, was immaterial; for the defendants could not succeed in any view. They failed altogether to shew any exclusive control over, or neglect concerning the execution on the plaintiff’s part. Beside, the parol evidence came out collaterally, on cross examination of the defendants’ witness. It was proper, with a view to test his accuracy or credibility. If proper in any view, a new'trial should not be granted ; and the court will not incline to a new trial, especially when they see that the very facts enquired of from the witness were most abundantly established by documentary evidence. Indeed , this alone is a full answer to the point arising up* on the parol evidence.</p> <p>Again; the judgment confessed was a mere collateral security ; and whether the plaintiff was negligent or not, makes no difference with his rights. He might entirely disregard it, and look to his endorsers in the first instance. Badger should have seen to his rights, and gone on, and collected himself.</p> <p>Gentlemen argue as if this were a case upon the weight of evidence before the jury. On a bill of exceptions, we cannot look beyond the very points taken. If the parol evidence, was, per sc, improper, we must stop there ; and cannot exeuse its admission by other matter afterwards supplied, as may be done on a case, where the court have a discretion. That Gumaer was the defendants’ witness, is no excuse for the plaintiff’s proving by him w'hat he should have shown by documents. When he takes the witness on cross examination to an independent fact, he makes him quoad hoc his own witness.</p>

<p>If process against the body, out of any court, do not, on its face, authorize an arrest, it is void, and will not protect any person concerned in the arrest ; even the officer to whom directed.</p> <p>Where Daniel S frrts-wold was ar rested on process of attach ment, issued out of the equity side of the circuit court of the United States, against Sam tjbr S. Gris-wold; heldy that an action of false imprisonment, lay by Daniel S. Griswold against the marshal, hio deputy, and ihe solicitors concerned in the arrest; and this, although Daniel S. Griswold was the person intended.</p> <p>Otherwise, of an execution against one by a wrong name, who appears in the suit, and omits to plead the misnomer in abatement ; or, it seems* where he is known as well by the one name as the other.</p> <p>It is no objection to process issued to enforce an order of the circuit court of the United States, that it recites the order as having been made, on some day not appearing necessarily to be within the statute term of the court. It will be intended that the term continued to that day, unless the contrary appear, the duration of the term not being limited by statute.</p> <p>Whether process issuing out of a court of equity, bo according to the course and practice oithac court, is a question which cannot be tried collaterally, in an action at law. Ii it be irregular, the proper course is to move the court out of which it issued, to set it aside.</p> <p>Superior courts, either of law or equity, will not interfere with each other’s proceedings On the ground of irregularity.</p>

before Throop, C. Judge. Assumpsit, tried at the Cayuga circuit, March, 1826, The capias was returnable the 3d Monday of October, 1825.

Assumpsit ; tried at the Steuben circuit, June, 1826, before Nelson, C. Judge. The declaration was entitled of August term, 1823 ; and contained the common money counts ; to which the defendant pleaded non asswgvpsit, and non assumpsit infra sex annos. Replication to the last plea, that the de-fendantdid assume, &c. within six years, &c., and issue.

On error from the Seneca C. P. Brown sued Mumford before a justice, for money paid and work done, in repairing certain premises of which the parties were tenants in common. The former recovered ; and the latter appealed to the C. P. where the former also recovered ; on this state of facts, presented upon bill of exceptions : the parties being tenants in common of a lot, the plaintiff below made aboard fence on the rear, where an old fence had rotted down.

On error from the C. P. of Orleans county. Theeause came *nto that court by appeal from a justice’s court. The action was debt, by Spafford against Hood, for $10, the penalty mentioned in the 22d section of the act for the suPPort °f common schools, passed April 12th, 1819.

Assumpsit ; tried at the Jefferson circuit, December 24fA, 1826, before Williams, C Judge. The action ivas, to recover back about $700, the consideration money paid by the plaintiff to the defendant, on a contract to purchase of the latter a lot of ground called the Hawkinslot.

<p>DemancLof a made 'of ^the drawee, before the holder can sue the drawer.</p> <p>No particular time for demand is fixed. It is enough that it be within a reasonable time ; and it does not lie with the drawer to object that the demand is too late, unless he has been injured by the delay.</p> <p>One who has transferred a check or note, is an incompetent witness for the holder, in an action upon it, on the ground that he impliedly warrants his title and the genuineness of the paper; but if he be discharged from his debts under the insolvent act, subsequent to the transfer, this renders him competent.</p> <p>Whether he be not a competent witness, where the genuiness of the paper is first established by other evidence ; and there is no pretence that he wanted title to the paper ? Quere.</p> <p>A warranty of title or genuineness by one who transfers negotiable paper, if it turn out to be false, is broken the instant of the transfer ; and his liability is taken away by a discharge under the insolvent act, after the transfer, though before the want of title or genuineness be detected.</p> <p>The drawer of a check is not a surety for the payee, though it be lent to, or drawn for the accommodation of the latter. And, therefore, though a subsequent holder give time to the payee to make payment, he being bound to pay such holder, this will not discharge the drawer, even though such holder know the check was for the payee’s accommodation. As between the drawer and the payee and subsequent holder, the drawer is the principal, and the payee the surety.</p> <p>Though a check be transferred to two, as collateral security for two several debts due to them respectively, yet one alone may sue upon it, and possession by him is, prima facie, evidence that the other has sold his interest to him.</p> <p>In an action for money paid, &c or money had and received, by the holder of a check against the drawer, the check is. per conclusive evidence ; and the drawer cannot shew in his defence, that money was not had and received by, or paid for him.</p> <p>A check was transferred by the holder as collateral security for an antecedent debt. Af* terwards, the drawer failing, it was appraised, and the creditor took it absolutely, at a sum less than its face, giving the holder credit at the amount of the appraisal. Held, that in an action by the creditor against the drawer, this circumstance could not be eviden ce to diminish the amount of the recovery ; that, though the creditor crave less, yet he was cut* *Ied to recover according to the face of the check.</p>

Debt on the decree of a surrogate ; tried at the Sarata Sa circuit, June 8th, 182-1, before Nelsok, C. Judge, The declaration was, that on the Oth day of April. 1825, tliG plain tin, dtk tnG considGration, judgment^ order and de-cree ^eorSe Palmer, Esq. surrogate of the county of Saratoga, upon and for a certain subject matter within the jurisdiction of the surrogate’s court of that county, recov-ere the trial, the plaintiff proved a decree, reciting that the plaintiff and…

<p>An insolvent debtor, who has released all claim to a surplus, is a competent witness for his assignees.</p> <p>A partner, who bolds money in his indvi-Uial ripdit, in trust- for another camol subject the fi'-m to an action for the money, by applying it io the u-e of the firm, without the knowlM^'1 or piiviiv oí !heo!her «uemijoroi members of his firm. Otherwise, where it is applied with their knowedjje or privily.</p> <p>Where a partner bo rows money on his individual credit, and afterwards npulics it *o the payment of;, artnership debts, or lends i: to the firm, this does not make the original lender a creditor of the firm. •*</p> <p>./'• Hut where a nartuer borrow? money g-merady. W'ihoiu- saving f<K whom, the fact of its \ J being used in the business oi the partnership, w, prima/uctc, evidence to sustain an action / % against the firm.</p> <p>An insolvent discharge, under the act of 1813, is constitutional as to debts contracted after the act.</p>

<p>^ Where ship from prosecuting her voyage by the perils of the r of the sea, and puts into an inter- and 'the goods ?.re r(®celied there by their owner, he is freight pro ra-taiimens.</p> <p>But in such a case, where wHhont™ sufficient cause, refuses to repair his ship</p> <p>and send on the goods, and to procure other vessels for the purpose, the owner piay immediately demand his goods; and shall be discharged from freight, both full and pro rata.</p> <p>To entitle to pro rata freight, the acceptance must be voluntary.</p> <p>And where the master having thus put into an intermediate port, at first refused to repair and proceed, and to procure other vessels and send on the goods, though one might have been done ; and the owner negotiated several days with him, in order to induce him to do the one or the other ; and, at last, the master made an offer to repair and proceed, under circumstances calculated to excite doubt of his sincerity ; whereupon, the owner demanded and received the goods, and transported them in vessels in his own procuring ; in an action for freight ; hel(U that it should have been left to the jury to say whether the proposition to repair, &c. was made bonajide ; and whether the acceptance was voluntary, so as V? entitle the ship owner to pro rata freight.</p>

At the Rensselaer oyer and terminer, in November, 1824, an indictment was found against the defendant; the first count of which charged, that on the 20th day of April, 1824, he did buy a certain promissory note of, and from one the holder and proprietor of the note, which was made and signed by one W. M and dated April 14⅛. . , T . r 1824; by which note Jr. M. promised to pay one A. V. the sum of $125,50, at the bank of Lansingburgh, in 90 days from the date; that the note…

Before, and at the time of the erection of tbe Erie ea-nat the relator was in possession, and elaimed to be the owner jn fee of various hydraulic works, standing on the ^ , margin of the Chitteningo creek, near the rapids, in the* town of Sullivan, in the county of Onondaga. He had, before the erection of the canal, purchased the land on which the works stood, bordering on the creek, with a^out goo acres of adjoining land.

On application to Mr. Justice Woodworth, in behalf of Vermilyea and others for the allowance of a certiorari, to remove into the supreme court the record of their conviction, from the court of oyer and terminer of the city and county of Neio-York, his honor deeming the question of too much importance to be disposed of without giving the counsel for the people an opportunity to be heard, directed notice to be given to the district attorney of the city and county of New-York.

On error from the C. P. of Schenectady county, where the cause came by appeal from the justices’ court of the city of Schenectady, - a collector on the Erie canal, sued Foster for $25, the penalty given by the 17th section of the act for the maintenance and protection of the Erie and Champlain canals, (sess. 43, ch. 202.) This section requires that every boatman, or person having charge of property mov-*1, , . ,, , , 1 . , xng on the canal, shall give to the collector, &c. a…

The defendants having made a case upon which to move for a new trial, and the plaintiff having proposed amendments, in which he did not object to the charge of the circuit judge as set forth in the case made; both the draft of the case and amendments were sent to fhe judge by the defendant for the purpose of being settled. The judge proceeded to settle the case accordingly.

<p>After confirmation of the report of the commissioners of estimate and assessment, under the statute, (1A A. 413, s. 178,) there being no irregularity or surprise, the court will not open the matter, so that the merits may be considered, as to the wrongful assessment of an individual; even with the consent of the corporation.</p> <p>The supreme court act, under the statute, ás commissioners; not as a court; and a report once regularly confirmed is irrevocable, unless all the parties in interest consent</p> <p>It is félany fhra man who elopes with another’s wife, to take his goods, though with the consent, and at the solicitation of the \yifp.</p>

The defendant was imprisoned for, and convicted of grand larceny in stealing the goods of L. at the oyer and terminer for Schoharie eounty, October 23d, 1826. The cause came here on eertiorari, accompanied with a case.

N. P. Tallmadge moved, in behalf of the defendant, for a rule to enter a suggestion on the record, entitling him to judgment for treble costs, on a verdict in his favor. The motion was founded on several affidavits, copies of which, with a notice of the motion, had been served on the plaintiff’s attorney more than four days previous to the day for which the motion was noticed. This was the first day of term.

Case for publishing a libel. At the last Washington . . »r circuit, (Nov. 14 th,) the defendant moved to put off this cause, on his affidavit that J. L. Thurman was a material witness for him, without whose testimony he could not safely proceed to trial, as he was advised by counsel and verily believed ; that on the 1 lift of November., he went to the house of Thurman for the purpose of subpoenaing r r r c him; but found him confined to his bed by sickness, and unable to…

<p>S. A. Foot, for the defendant, moved for a view; and reacj an affidavit 0f the defendant’s attorney, that on the trial of this cause, an intricate question of boundaries would be inquired into ; and the cause could not be tried by a ;urv understandinely without a view.</p>

To the writs of alternative mandamas granted in these causes on motions reported, ante. 518, 520 to 536, the defendants now made separate returns; Seymour, that after inquiry, the appraisers came to the conclusion that the state had not parted with the land upon which the Chitte-ningo creek passes at the places claimed, &c. as set forth in his affidavit, and for the reasons stated by that affidavit, as mentioned in the report above referred to ; Woods, that he had ever been…

í>. B. Tallmadge, moved to make the submission to arbitrators between the relator and Holly a rule of court; and for an attachment for not performing the award, which was in favor of the relator. Performance had been demanded.

The defendant, as sheriff of Orange, had been sued with his sureties ; and a judgment obtained in favor of the people, for the penalty of the bond given for the faithful execution of his office, pursuant to the act concerning sheriffs, &c. (1 R. L. 418, s, 2, 6.) The suit on the bond was not prosecuted by the present plaintiffs ; but by another, on application and leave granted pursuant to the 6th section of the act.

J. L. Viele, for the defendant, moved that the verdict rendered for the plaintiff in this cause at the last Rensse-^aer c*rcu^J se* aside, on the ground of irregularity in drawing the petit jurors.

A JUDGMENT having been rendered by a justice of Livingston county, against Alvord and others, in favor of Sherwood, they appealed to the Livingston C. P.; but the condition of the appeal bond did not recite the amount of r r _ the judgment before the justice ; nor did the amount appear in any part of the bond.

On certiorari to a justice’s court. The affidavit on which the writ was allowed, was taken before the attorney for the plaintiff in error. On this ground, (and another,) it was now moved to set it aside as irregular. For the mo-lion was cited, Taylor v. Hatch, (12 John. 340,) and Munro v. Baker, (6 Cowen, 396;) and against it, 5 Cow-en, 38; 1 Dunl. Pr. 220; 1 R. L. 140, 396; 2 Caines' Rep. 182 ; Laws N. JT. sess. 47, p. 297, s. 43; 6 John.

The defendants were, by mistake, treated by the plaintiff as joint debtors; part being returned by the sheriff as taken, and part not found. He declared against those taken as impleaded with the others. The defendants taken, demurred to the declaration specially; and the plaintiff joined in demurrer. This was before Whitaker v. Young, (2 Comen, 569,) was decided.

The plaintiff declared on a judgment rendered in a jus* tice’s court. The defendant pleaded two pleas ; l.nultiel record, and 2. payment. moved for a rule that the defendant elect which plea he would abide by.

<p>Declaration in ejectment amended by altering though the twice noticed an ^objection triaTthat11 the time was laid abin ofyexcep-this pointed °n</p> <p>Amendment granted, on paying the costs of the motion.</p>

Case for a libel, published in the N. Y, American> moved to change the venue from the county of Erie to the city and county of New-⅝_ , York, on an affidavit that the cause of action, if any, arose in the latter county ; but the affidavit did not add, “ and not elsewhere out of the city and county of New-York.” On this ground, without proceeding to show that the libel had been dispersed in different counties; and agreeing that unless this was shewn, the action being for a…

<p>Where an appeal is dismissed by the C. P. on motion, upon the ground that they were never possessed of the cause; and had no jurisdiction of it, they should award no costs beyond those of the motion; not the general costs of the cause.</p> <p>Whether they have power to award the regular costs in the cause ? (frtere.</p>

On appeal to the Madison C. P. from a justice’s court, by Mallard, against whom the justice had rendered judgment at the suit of Cheesebrough, the cause had been noticed for trial three times. It was once put off at the request of the appellee ; and again, on his motion, on payment of costs. On its being brought on for trial upon the third notice, and the jury being empannelled and sworn, the appellee proceeded with his testimony, and rested his cause.

The declaration, containing general counts in assump-sit, was served on the agent of the defendant’s attorney, on the 1st of November, 1826. The defendant’s attorney wrote to the plaintiff’s attorney, requesting a statement of their demand; which was furnished to the defendant ’s attorney, on the 15/A of the same November. On the 12iA of December following, the 40 days for pleading having expired, the defendant’s default for not pleading was entered.

Motion, in behalf of Norton, the special bail of the defendant, Palmer, that an exoneretur be entered on the bail piece. On the 4th of April, 1826, Palmer was discharged under the insolvent act to abolish imprisonment for debt ⅝ r in certain cases. He omitted to plead his discharge; or avail himself of it m any way. The cause was tried on mer*ts August last, a verdict found for the plaintiff, and judgment perfected in October term thereafter.

An alternative mandamus was granted in this cause, commanding the defendants to vacate a rule, allowing the set off of a judgment obtained before a justice of the peace on an attachment, against the relator, in favor of Mann, to meet a judgment obtained in the C. P. of Delaware, in favor of the relator, against Mann. The judgment before the justice was obtained June 13th, 1825 ; the defendant not appearing to contest it.

The defendant having put in special bail to this action, was afterwards convicted of a conspiracy, and sentenced to the New-York penitentiary for the term of two years.

A capias ad respondendum was issued and deliver-c ed to the sheriff, against the defendants, on the 28th of October, 1826, returnable the same day. The suit w'as to recover the amount of certain promissory notes given * jo by the defendants jointly. The plaintiff required no bail; and the sheriff drew the endorsement of an appearance on the back of the capias : and saw Trotter and Dunn, on the r ’ return day, who promised to endorse their appearance , but this was not done.

Cross motions. The defendant moved for judgment as in case of nonsuit; and the plaintiffs, to strike out the notice given by the defendant with his plea. The cause be-r ing at issue, was noticed, but not tried, at the lastNiaga-ra circuit. It was an action of debt for the escape of one Chapin from the custody of the defendant, as sheriff, on a ca• sa• Plea) ⅛0 general issue, and notice of voluntary return before suit. This notice was not accompanied with an affidavit.

Motion, in behalf of the defendant, to set aside the writ of replevin issued in this cause, on the ground that it was tested August 19th, 1826, and returnable on the 1st of the present term, (one entire term intervening,) day

3. T. Irving, first judge of the C. P. in the city and county of Neio-York, on the application of Hans Harms, granted an attachment against Schroeder, as an absent debtor, within the statute, (1 R. L. 157.) Harms, the creditor, at the time of suing out the attachment, was a citizen of Hamburg; not a resident of the state of New-v t , .r orle, nor domiciled here, nor in the United States ; but was transiently in New-York.

Assumpsit against the defendant, as endorser of a prom» issory note to the plaintiffs. The defendant pleaded a special plea, to which the plaintiffsreplied ; and the defendant demurred to the replication, and the plaintiffs joined in demurrer. The supreme court gave judgment for the defendant, on the ground that the replication was defective, and held the plea good. This was in May term, 1821. (See 19 John.

The plaintiff having made a case in this cause, upon which to move for a new trial, a motion was made in his 1 ^ behalf, to bring on the argument upon its order on the cal- * -»-> , € Ildar : But An affidavit of the defendant’s attorney was read on the J other side, stating that on the 28th day of February, when it was too late to notice the cause for argument, no copy of the case settled by the circuit judge had been served on him.

In partition. The defendants brought a writ of error from this court, but did not put in bail. There was also a defect in the writ of error ; but the court for the correetion of errors allowed it to be amended, and retained the cause. Before the amendment was allowed, the plaintiff issued two writs of fi. fa. one against Clapp, and one against oioners unknown, for different portions of the costs in partition. now moved to set aside the executions as irregular.

In assumpsit on promises made to the testator, the plaintiffs recovered before statute referees, $28,70. The suit wag commence(j ⅛ 1820. The accounts of both parties exceeded $400. w . The questions were submitted by consent, 1. Whether the plaintiffs were entitled to costs ; 2. If not, whether fj!Cy s]10uld pay costs to the defendant; 3. Whether the J r J plaintiffs or defendant were bound to pay the referees’ fees,

Debt on the penalty of articles of agreement, tried at the Columbia circuit, in September, 1824, before Betts, (late) C. Judge.

<p>Ejectment for a part of land called tract H., Massena, St. Lawrence county; tried at the circuit in that county, February 9tA, 1826, before Walworth, C. Judge.</p> <p>At the trial, the plaintiffs having deduced a regular title to one undivided half of the premises in question, to Ann, wife of Ten Eyck, who are the lessors of the plaintiff, by descent from Ann’s, the wife’s father, M. Vischer, who died in 1793, rested.</p> <p>The defendant, to show title out of the plaintiff, gave in evidence a conveyance of the premises in question, (among other land,) from Ann, while sole, and her co-heir, Sebastian Vischer, to their mother, Lydia Vischer, in fee, dated March 13th, 1800. This proof was by an exemplified copy of the conveyance from the secretary’s office.</p> <p>In answer to this, the plaintiff’s counsel read in evidence an instrument dated October 12th, 1824, which was attached to the conveyance from Ann and Sebastian Vischer, and executed by their mother; by which she certified, that the conveyance from Ann and Sebastian Vischer estate conveyed by it. And she thereby declared her dissent; and that the conveyance was, as to her, her heirs, &c. inoperative and void ; and that the land conveyed by it was vested in Ann and Sebastian Vischer. This instrument was acknowledged the \2th, and recorded in the secretary’s office the 14ÍA of October, 1824, in the usual form of acknowledging and recording deeds of land, it was never executed and delivered to her, or agreed to be executed and delivered to her, by the grantors, or either of them ; and that she never had seen, or had the possession of it, or done any act signifying her assent to take the was read without proof of its execution, otherwise than by the acknowledgment and recording.</p> <p>The admission of this deed was objected to by the defendant’s counsel, on the ground that it was not an instrument proper to be acknowledged and recorded ; and was inoperative as a deed; but it was received by the judge, by consent, subject to the opinion of this court.</p> <p>Verdict for the plaintiff, subject to the opinion of this court.</p> <p>The judge also decided a point of adverse possession, w’hich was not discussed on the argument ; but which will be found mentioned at the close of the opinion of the court.</p> <p>The exemplification of the conveyance from the secretary’s office w'as mere prima facie evidence, liable to be opposed by the disclaimer, or dissent of the grantee. An exemplification of the disclaimer was admissible. Every deed, conveyance or writing concerning real estate, may be proved and recorded ; and then becomes evidence of itself. The grantee had a right to dissent ; and the writing is evidence of the fact that she did dissent. He cited 4 John. Rep. 161; 1 John. Cas. 114, 116; Shep. Touch. 58, 68; 8 Vin. 487, 488, Disagreement (A.) pi. 2,10; id. 489, pi. 18 ; id. 490, pi. 23 ; Moore, 300; 4 Cruis. 529, Tit. 32, Deed, ch. 22, s. 1; 22 Vin. 529, Waive.r, (A.) pi. 4.</p> <p>cited 10 John. 456 ; 6 id. 149 ; 20 John. 187 ; 3 Rep. 26 ; 4 Cruis. 367, Tit. Deed; 2 Rep. 60, 61.</p> <p>He strenuously contended, that the paper set up as a disclaimer, was a mere memorandum ; and could not be received as testimony, any more than a written statement from a stranger ; that Lydia Vischer. was a competent witness, and should have been sworn.</p>

<p>lection of a thepromLetfiiU legally1 ^ conf menced for its not be enforc-be commenced* or a legal excuse for not doing so is shewn. A promise to warrant the col-</p> <p>mencemenT'of a suit is a condition precedent.</p> <p>Whether the aneé'orhappén-ing of a condi-pon precedent to a right of accused^o^as *to give the right, by any thing short of the act iwty r°Querete</p> <p>On a promise to warrant the collection of a maker^and pay aii costs of ail suits legally commenced for fee attémpt^to con&tiorf^pre-cedent;itisno the "at-maker’ St testate before the note fell due: and that cn out let tos Of administration unon his estate. '</p>

<p>Covenant, tried at the Ulster circuit, April,^1825.</p> <p>The action was upon an instrument in these words and figures :</p> <p>u Supreme court. Amzey L. Ball V. Abraham Van Kuren.</p> <p>May 20th, 1819.</p> <p>Bond pen. $345,82</p> <p>Condition, 172,91</p> <p>Pltff’s costs, 9,36</p> <p>Deft’s do. 68</p> <p>I do hereby assign, transfer and set over, for a Valuable consideration, unto Joseph Jansen and Abraham I. Har-denburgh all my right, title and interest in and to the judgment as above stated, together with sheriff’s fees ; amounting in all to 198 dollars 84 cents; and warrant that all the above sum remains due and unpaid. Witness my hand and seal, this 3d Sept. 1819. Amzi L. Ball, (L. S.)”</p> <p>The declaration alleged, that, at the above date, Van Kuren had sufficient property to satisfy the demand; but that no judgment had been entered. The declaration made proferí of the deed ; and oyer was prayed and given. Plea, non est factum.</p> <p>On the trial, it appeared that the instrument declared on had been lost after issue joined ; and could not be found upon diligent search. It was satisfactorily proved that the oyer was a true copy of the original, which had been executed by the defendant. A witness testified that he had examined the docket of judgments in the clerk’s office of this court in the city of New-York ; and the transcripts there from the clerk’s offices of this court in Albany and Utica; and found no judgment in favor of the defendant. Proof of the deed, without its production, was objected to ; and also the proof of search in the clerk’s office ; the former as being inadmissible under the proferí and oyer; and the latter as incompetent, to shew that there was no judgment. The objections were overruled.</p> <p>Proof was then given of the amount of the defendant’s property, which was lost, as a means of paying the supposed judgment; in order to fix the measure of damages. This evidence¡is¡sufficiently stated in the opinion of the court.</p> <p>The judge charged, that the measure of damages was the amount of property belonging to Van Kuren, which could have been taken under an execution ; that the property in his possession at the time of the assignment which had been sold under another execution, did not belong to him ; and should not be included in the estimate of damages; that the plaintiffs were entitled to recover the fair value of the property that Van Kuren owned, from the time of the assignment until the commencement of the suit, with interest from the time the money might have been collected. Verdict for the plaintiff for $283,33.</p> <p>A motion was now made for a new trial.</p> <p>Proof of the loss and contents of the instrument declared on was inadmissible. (2 Str. 1186. 1 Ph. Ev. 403. 4 East, 585. 4 Cowen, 124.) The evidence of examining the docket and transcripts was incompetent. The docket itself, or an exemplified copy, should have been produced. No breach of the covenant was proved. The verdict was also against evidence in the amount of damages.</p> <p>cited Shep. Touch. 73; 1 Ph. Ev. 157.</p>

<p>After an ex-elusive and uninterrupted pos-tenantin com-ne£a-iyf40yearsr withoutany ac-co-tenants, jury are author-an ouster; and jectment by hfe barred3*113’ ***</p> <p>The court, on feet to their o-raae^aytow the same infer-their opinión, a wananted'd ⅛ drawing from case.</p> <p>possession ⅞ claiming title, under a parol gift of land from the owner, is such atj adverse possession as will bar an ejectment ? Qfiere.</p>

Assumpsit on a policy of insurance; tried at the New York circuit, July, 13th, 1826, before Edwards, C. Judge ; when the following facts appeared : The defendants, by a policy dated August, 23d, 1824, insured the plaintiff against loss by fire to the amount of . . . $4000, on certain cotton and woollen machinery, at Mechanic Ville, Saratoga county.

On demurrer to the replication. On information in na-*ure a 9M0 warranto, against Garey, calling upon him *° s^ew ^7 what warrant he acted as a justice of the peace of the county of Orleans, he pleaded the statute to erect a new county from part of the county of Genesee, by the name Orleans; passed November 12th, 1834, (sess.4 7, ch. 266,) providing that all that part of the county of Gen-esee comprising the towns of Gaines, Barre, Murray, Clarendon, Ridgeway, Yates, and Oak…

<p>On error from the C. P. of the city and county of New-York.</p> <p>The action in the court below was trover by Daggett and Kensett against Hall, for certain cases and boxes of provisions preserved fresh. The plaintiffs produced, on the trial, an agreement between themselves and the defendant below, dated April 15th, 1822, by which they agreed to carry on the business, of preserving fresh provisions, which they warranted to keep sweet and good for any voyage or climate ; and agreed,- in consideration of the use of $600, received of Hall, that Hall should be the only agent for selling the provisions in the city of New- York, for 10 years; and should be allowed 20 per cent, on all sales made by him, or through his agency in that city, or any other place where it might be advisable to go for the sale; and that he should be entitled to f of the net proceeds of sales, after deducting the 20 per cent, to apply on the amount advanced by him until it should be liquidated. Hall agreed to furnish a suitable repository for the sale, at his own cost and expense ; and be responsible for all sales made by him. Wherever he might go for the sale, it should be at his own expense.</p> <p>The plaintiffs below proved that the defendant had received provisions under this contract, from the plaintiffs, to the value of $6763,30, and had returned to the value of $1184,17, and paid the plaintiffs $4194,22. This was between the 12ift of January, 1822, and the 2d of August, 1824, and proof was also given of the delivery of other provisions; all in pursuance of the contract. On the last of December, 1824, Kensett went to Halt’s store in New-York ; and demanded all the provisions so delivered which were then unsold ; and forbid Hall making any more sales: asked Hall to render his account; and offered that if he had any demand, or any storage, lit; (K.) would pay. Hall then produced the contract; and asked Kcnsett, if he in= tended to comply with it ? This was repeated about the middle of January, when Hall offered to render his ac count; but said he would consult his attorney first.</p> <p>The plaintiffs resting on this proof, the defendant moved for a nonsuit, which was overruled; and the judge charged that the plaintiffs had a right to demand the goods, on paying the defendant’s lien, if any, whose duty it was to assert his lien, and render his account. If he had not done so, he had waived it. Whether it was asserted, and what the value of the remaining goods was, he left to the jury, who found for the plaintiffs $500 damages ; on which judgment was rendered with costs. A bill of exceptions was taken to the opinion and charge of the court.</p> <p>contended that the defendant below had a special property in the goods under the contract; with the right of possession. He was entitled to retain for his advances. The contract being in full force, and the defendant in the act of performing it, there was no conversion. He cited 7 T. R. 387, 394,per Lawrence, J.; 2 Seliv. N. P. 1265 ; 7 T. R. 9 ; 2 B. ⅜ P. 438. -</p> <p>If the defendant below had any lien, he should have put himself upon it. (1 Campb. 410,«. 1 M. & S. 147.) Not doing this, he waived it. But he had none. An offer was made to pay his demand ; but no account was rendered. It is a mistake to say he had any interest in the provisions. His interest was in the contract. But suppose he had an interest in the goods, it was merely as agent or factor; and on payment or tender of his lien, he was bound to give up the goods. A factor, even on del credere, can do no less. An action on the case could have been only for not selling the provisions according to contract. If trover will not lie, we are re-mediless.</p> <p>Beside, the contract was usurious and void,</p>

On certiorari to the general sessions of the peace of the county of Madison. Two justices made an order to remove one Elizabeth Wat son from the town of Hamilton, to the town of Eaton, in Madison county; and she was removed accordingly. On appeal by the overseers of Eaton, to the general sessions of Madison, that court quashed the order; whence the overseers of Hamilton, brought a certioarn to this court.

On error from the C. P. of the county of Schenectady. cited 2 Comen, 518, 605 and 612, note; 1 Serg. and Raicle, 411, per Tilghman, C. J. ; 1 Com. on Cont. S, 9, 10, 58, 59; Statute of 1824, sess. 47, ch. 238, s. 17, p. 289. The facts are stated in the opinion of the court, which ■ was delivered by

The defendant was indicted, at the general sessions of 1 o Oneida county, for extortion as a justice of the peace. The first count of the indictment stated, that Butler appeared before the defendant, a justice of Oneida, at the suit of Grant, on the return day of a summons, February 1th, 1826, at 10 A. M.; that the suit was discontinued by the non-appearance of the plaintiff.

On error from the C. P. of Monroe county. Plumb brought trover in the court below against Miller, for certain materials appertaining to a building for manu-factoring ashes, viz: 2 potash kettles, ¡2 five-pail kettles, 2 troughs, 5 leaches, and 500 feet of boards. It appeared, at the trial, that while Plumb owned the ashery, the materials in question belonged to it. The two potash kettles were set in an arch of mason work with a chimney.

Assumpsit, tried at the Washington circuit, December 14th, 1825, before Walworth, C. Judge. The action was founded on the following letter written by the defendant: “ April 15th, 1824.

<p>general, ⅛ charged with a specific fraud in a civil action, h¡s character ⅛ not in issue. The evidence £gfiaud ci>nnot repelled, therefore, by general good te|™tyter foi in"</p> <p>The case of JtyjCLTi'v. Perm (a Caines’, exception*3 to íkisa™le’ be^. gross depravity chcumstMices"1</p> <p>, descnP-tionoftheprop-f^licyagifinst loss fcy fire>is a warranty that the property is la substance, the* policy is void, though the misdescription arise from ™*^keb’e aad fraud.</p> <p>a p^y 07⅛⅛ kmd described the subject m-sured, as the of°the insured6 contained m a two story frame house filled in with brick, No. 152, Chatham street; the house No. 152 being a frame house not filled in with brick; held, that ¡hp policy was void.</p>

Ejectment for 25 acres of land, including a grist mill in ^ Middletown, Delaware county; tried at the circuit in that county, September 1st, 1823, before Nelson, C. Judge ; when a verdict was taken for the plaintiff, subject to the opinion of this court, on a case. cited 16 John. 184 ; 4 id. 81; 10 John. 435. cited 2 Cowen, 283; Runn. on Ej. 113; 1 Wils. 220; Bull. N. P. 110. The facts are stated in the opinion of the court, which was delivered by

Assumpsit, tried at the Oneida circuit, April, 1826, before Williams, C. Judge. The action was on three promissory notes, dated respectively January 21 st, April 21 st, and November 13th, 1823, the last for $2100, 20, made by the testator and payable to the plaintiff.

Assault and battery, tried at the New-York circuit, October 13th, 1825, before Edwards, C. Judge. The plea was not guilty, with notice of son assault demesne, and molliter manus imposuit, in defence of the defendant’s possession.

<p>A set offeaá-not be made, of a debt or demand against any one, other than the plaintiff on the record.</p> <p>Thus, where the plaintiff purchased a negotiable promissory note of the payee, after the note was due; and the payee was indebted at the time of the purchase to the maker; in an action by the holder against the maker; held, that the demand of the latter could not be set off against the holder; and that it was not in any view, a defence to the action.</p>

Debt on judgment, tried at the Albany circuit, September 6th, 1826, before Dues, C. Judge. The judgment declared on, was in favor of the plaintiffs against Ring, as impleaded with Carman ; the latter not being brought into court or appearing. This appeared upon the record in the original action.

On error from the Schenectady C. P. Groot sued Farnsworth in a justice’s court, in trespass, for obstructing former in passing a lock on the Erie canal; and recovered $5. On appeal to the Schenectady C. P., Groot recovered $15. H latter court, it was proved at the trial, that Groot had arrived at the lock before Farnsworth ; both passing west. It was regularly- Groot’s turn to pass the lock, which was not more than a quarter empty when Farnsworth arrived.

Assumpsit on a promissory note; tried at the Oneida circuit, October, 1825, before Williams, C. Judge ; when the following facts appeared : The defendants executed a promissory note, on the 19fA of March, 1824, dated that day, and payable to the plaintiffs, by the style of Graves, Griffin & Co., for $587, on which was endorsed a payment.

<p>In the description of parcels in a conveyance of land by boundaries, or number of the lot, or other certain de-qilmti^betoo-addition^ th* out an express covenant that the land contains that quantity, the whole is considered as mere description ; and quantity being the least certain part, must yield to boundaries, or the number of the lot, or other more certain description.</p> <p>Effect should be given to every part of the description, if practicable. But if the thing to be granted, appear clearly from any part of the description; and other circumstances are mentioned, not applicable, the grant will not be defeated ; but the false or mistaken part will be rejected.</p> <p>What is most material and most certain, shall prevail over that which is less material and less , certain. Thus, course and distance shall yield to natural and ascertained objects, as a river, a stream, a spring, or a marked tree.</p> <p>Thus, where a conveyance was, of “ two tracts or parcels of land, lying, &c., being township »o. 3, &c., also township no. 4, &c.,tobe 6 miles square ; and containing 23040 acres each, and no more,” &c., though these tracts were in fact 6 by 8 miles in size ; held, that the whole 6 by 8 miles passed.</p> <p>Such a description is not ambiguous in a legal sense, so as to be a subject of elucidation from extrinsic evidence.</p> <p>The acts of a portion of the grantees, tenants in common, in locating land under a deed, will not affect the co-tenants, unless it appear that they sanctioned these acts in some way.</p> <p>And the court will not, in such a case, presume a grant, for the purpose of quieting ancient possessions.</p> <p>A grant of land will never be presumed from lapse of time, unless it be so great as to create the belief that it was actually made ; or unless the facts and circumstances in the case, show that the party to whom it is presumed to have been made, was legally, or equitably entitled to it.</p> <p>A trust in lands, (except a resulting trust,) must be manifested in writing ; but it may be declared either before or after the conveyance to the trustee.</p> <p>To make out a resulting trust, by the payment of the consideration money by one, the deed being taken in the name of another, the money must be paid at, or before the execution of the deed.</p> <p>One may, (by the same conveyance, take an undivided portion of land to himself in his own right; and be a trustee for other portions in the same land ; and afterwards he may buy in, and take a conveyance to himself from any or all of his cestuis que trust,- in which case he ceases to be a trustee, and becomes the absolute owner of the share or shares so purchased in by him></p> <p>Note (a) to this case, contains the English doctrine of parcels.</p>

<p>Though a tender of rent is good on the personal tender is also good off the land.</p> <p>A personal tender before distress, makes it tortious; and terwards, and dfng7mEthe detainer unlaw-tul; but tender, after im-makes neither the otter un lawful. a piea'of^ten-ryr>or^ogniz” anee, need not jmstten^m make a profert oi the money in court.</p> <p>rent tato away a right to dis-train, till a subsequent de-fosal. re” doM^not^ake away the right rentUasf°fortha debt. It only saves interest and costs.</p> <p>A tender of rent makes a distress wrongful, though the tender be not made till after the rent day. But if costs have been incurred by the landlord, as if he have drawn a warrant of distress, or, m the city of New York, made and filed the necessary affidavit, these costs must also be tenders pd, or the distress will be lawful.</p> <p>The affidavit of rent due, in the city of New-York, required by the statute (sess. 38, ch. 153,) to be made and filed, before distress, is, prima facie, sufficient, though the jurat be subscribed simply with the name of the officer before whom it is taken, without the addition of his title of office.</p>

Debt for the escape of one Lawrence, from the defendant’s custody on a ca. sa. at the suit of the plaintiff, upon a judgment for $652,17 ; tried at the Ulster circuit, April 19th, 1826, before Betts, late C. Judge. The declaration contained three counts, substantially alike, except that the escapes were stated on different days. The defendant pleaded, 1. Nil debet, with notice of special matter ; 2.

Covenant, tried at the Montgomery circuit, December, 1324, before Walworth, C. Judge. The action was for money claimed by the plaintiff, to be due from the defendant to him, on sealed articles of agreement, dated February 8th, 1808, executed by the parties, and left with one Jackson, for safe keeping. The plaintiff aftcrvvards authorized Jackson to receive $2500 (the whole debt being $5000) of the money due on the agreement; and pass it to the plaintiff's credit on account.

Ejectment for lot No. 14, in Jessup’s little patent, Warren county, tried at the Warren circuit, July 11th, 1823, before Walworth, C. Judge.

Trover for a box of dry goods ; tried at the circuit; and a verdict found for the plaintiff for $249,71. The facts are stated in the opinion of the court; which was delivered by

On certiorari to the general sessions of the peace of the COUlltj of Madison. Two justices made an order of removal of Maria Chad-J wick and her children, from the town of Smithfield, in the county of Madison, to the town of Otsego, in the county 0f Otsego.