Volume 6 — Hill & Denio's New York Reports

Dodge and M’Clure brought replevin in the court below for property assigned to them by one Morris in trust for creditors. The assignment, which bore date March 19th, 1842, gave preferences to certain persons to whom Morris was indebted, over his general creditors, and was made in contemplation of bankruptcy. The defendant was a deputy sheriff, and seized the property in question under a fi. fa.

Comstock sued Johnson in the court below, and gave in evidence two promissory notes made by the defendant on which there was due $67,34. The defendant under a notice of set-off gave in evidence a promissory note made by the plaintiff, payable to one Dean or bearer, on which there was due $60,37. The action was commenced by the filing and service of a declaration.

Assumpsit, tried at the Rensselaer circuit, in May, 1843, before Cushman, C. Judge. The action was brought to recover on a promissory note, purporting to be signed by Hull as principal, and the firm of L. V. & J. B. Reed as surety. Hull suffered a default to be entered against him, and the Reeds defended.

Hitchcock brought ejectment in'the court below against the two Dclaplaines to recover a house and lot in Chapel street in the city of New-York. It was admitted that the plaintiff below was in possession of the property from January 1st, 1834, until September 4th, 1841, when he was dispossessed by virtue of a warrant issued by one of the assistant justices on the application of the defendants. Defence, 1.

Demurrer to replications in replevin. This case was before the court in October 1842, on demurrer to the plaintiffs’ pleas. See 3 Hill, 547 et seq., where the avowries to which the pleas were interposed are set forth. After the judgment there rendered, the plaintiffs amended the first plea to the first avowry, and the first plea to the second avowry.

<p>Declaration in assmnpsit containing 30 counts—demurrers to the first 28 counts. First count. For that whereas the Staten Island "Whaling Company, incorporated by the legislature of the state of New-York, March 26th, 1838, did on the 1 st of November, 1838, at &c., make their certain sealed note or obligation, by which the company, for value received, promised to pay to the order of the defendant Woram fifteen thousand dollars in nine months after date, with interest at the rate of six per cent, to commence on the first day of July, 1838, and Woram, with the knowledge and assent of the company, endorsed, transferred and delivered the note or obligation to the plaintiffs; the defendants, on said 1st of November, for and in consideration of the sum of fifteen thousand dollars, jointly and severally in • writing undertook and promised to pay the plaintiffs the money mentioned in the note or obligation according to the tenor and effect thereof. By reason whereof &c. Second, third and fourth counts on like notes or obligations payable in ten, eleven and twelve months.</p> <p>Fifth count: For that whereas, on the 1st of November, 1838, at &c., the plaintiffs being possessed of a large amount of bonds for the payment of money previously created and made by them, to wit, of the amount of $15,000, and of the value of $15,000, which bonds bore interest at the rate of six per cent, from the 1st of July then preceding, they, the plaintiffs, on the said 1st of November, at &c., agreed with the Whaling Company and the defendants to sell and deliver the bonds to the company, in consideration that the company and the defendants would jointly and severally promise and agree to pay the plaintiffs for the same in nine months, whereupon the plaintiffs transferred and delivered the bonds to the company; and in consideration thereof the company and the defendants then and there jointly and severally promised and agreed to pay the plaintiffs $15,000 for the bonds in nine months with interest at six per cent, from the 1st July preceding. Sixth, seventh and eighth counts on like promises to pay in ten, eleven and twelve months.</p> <p>Ninth count. For that whereas, in consideration that the plaintiffs, at the special instance and request of the defendants, would sell, transfer-and deliver to the company on a credit of nine months divers bonds of the plaintiffs, [as before,] the defendants by a note or memorandum, in writing, in consideration of the premises, which consideration was expressed in the writing, undertook and promised the plaintiffs that they would he accountable to them for the price agreed to be paid by the company for the bonds, being $15,000, and interest &c., payable in nine months <fcc.; and the plaintiffs thereupon sold and dedelivered the bonds to the company &c. Tenth] eleventh and twelfth counts on like notes or memorandums, upon credits of ten, eleven and twelve months.</p> <p>Thirteenth, fourteenth, fifteenth and sixteenth counts on joint and several promissory notes for $15,000 each, made by the defendants and payable to the plaintiffs or order in nine, ten, eleven and twelve months.</p> <p>Seventeenth, eighteenth, nineteenth and twentieth counts on like notes made by the defendants, together with the Whaling Company, by which the defendants and the company jointly and severally promised to pay the plaintiffs or order, &c.</p> <p>Twenty-first, twenty-second, twenty-third and twenty-fourth counts like the 13th, 14th, 15th, and 16th counts, except that the notes were stated to be payable to the plaintiffs or hearer.</p> <p>Twenty-fifth, twenty-sixth, twenty-seventh and twenty-eighth counts like the 17th, 18th, 19th and 20th counts, only the notes were stated to be payable to the plaintiffs or hearer.</p> <p>Demurrer to the foregoing counts, and joinder in demurrer.</p>

On error from the Oneida common pleas. Tuttle sued the present plaintiffs in error before a justice, and the cause was tried by a jury, who found a verdict against Tuttle. The verdict was rendered on the 3d day of May, 1842; and a certiorari was brought to the common pleas on the ground that the justice did not “forthwith render judgment, and enter the same in his docket/1 (2 R. S. 24IT, § 124,) but omitted to make the entry until two or three days.afterwards.

Replevin, tried before Kent, C. Judge, at the New-York circuit in. Hay, 1843. The plaintiff was nonsuited at the circuit, and now moved for a new trial on a bill of exceptions. The facts of the case sufficiently appear in the opinion of the court.

On error from the mayor’s court of the city of Troy. Mazuzan sued Koon before the justices’ court of the city of Troy, in an action on the case for damages done to a dwelling house belonging to the former.

<p>A person may renounce a constitutional provision made for his own benefit.</p> <p>If a private road be laid out pursuant to 1 R. S. 513, § 77, with the consent of the owner of the land, the proceeding will be valid.</p> <p>The consent of the owner need not be in writing, but may be by parol.</p> <p>Where, after the laying out of a private road pursuant to the statute, and the assessment of the owner’s damages, he brought an action to recover them; held, a sufficient manifestation of his consent, and that the applicant for the road was liable.</p> <p>The owner may recover the damages assessed in such case by an action of assumpsit.</p>

Information in the nature of a quo warranto. The information was filed in June, 1843, and alleged that the defendant had, for the space of three months and longer, used and executed the office of sheriff of the county of Oneida, and still claims to use the said office, without any lawful warrant or authority whatever, &c. That Theodore S. Faxton, the relator, was rightfully entitled to the said office during all the time aforesaid, and still is entitled to the same.

Covenant, tried before Gridley, C. Judge, at the Oswego circuit in June 1840, The case was this: On the 12th of February 1822, Norman Hubbard, the defendant’s intestate, covenanted with the plaintiff to furnish him with sufficient water out of the mill dam of said Hubbard to carry the fulling mill and carding machine of the plaintiff, except during the dry season in summer, and the usual-time of freezing in winter; and at those times to let the plaintiff have a sufficient…

Assumpsit, tried at the Clinton circuit in June 1839, before Willard, C. Judge. The action was brought to recover -against the defendant as endorser of a note for $500, dated May 21st, 1832, made by George W. Hicks; and also as maker of another note for $539,48, dated September 10th, 1832.

<p>Error to the Onondaga common pleas. Wood sued Rice in the court below for trespass and false imprisonment. The latter was a justice of the peace residing in Elhridge, Onondaga county; and, on the 10th day of June, 1842, he rendered a judgment against Wood for $25, besides costs, in an action brought by the overseers of the poor of Elhridge to recover the penalty imposed by 1 R. S. 680, § 15 for selling spirituous liquors without having a license. The trespass &c. complained of consisted in the arrest of Wood under an execution issued by Rice on the above judgment. It was conceded at the trial that the distinction between county and town poor prevails in Onondaga; (see 1 R. S. 620, § 22;) and the counsel for Wood contended that, inasmuch as Rice was a resident of the town to be benefitted by the penalty sought to be recovered in the suit before him, he had no jurisdiction, and the execution under which the arrest of Wood took place was therefore a nullity. (See 1 R. S. 357, § 5.) The court below held otherwise, and Wood’s counsel excepted. Verdict and judgment in favor of Rice; whereupon Wood sued out a writ of error.</p>

Case, tried before Moseley, C. Judge, at the Cayuga circuit in May, 1843. The action was brought to recover damages for the erection and continuance of an embankment and railroad in and upon Garden street, in Auburn, thereby interrupting the plaintiff’s ingress, egress &c. to and from certain lots alleged to he his, one lying on the north side of the street, and the other on the south side.

Ejectment for certain lands in Elmira, Chemung county, tried before Monell, C. Judge, at the Chemung circuit, in May, 1843. On the 1st of May, 1827, Joseph Vial and Uriah Smith, being owners, mortgaged the premises to Clark Winans to secure the payment of $600; of which half was payable in April, 1828, and the other half a year afterwards, with interest.

<p>Where a party moves upon the copy of a writ or other paper, intending to rely on some formal defect in the proceeding as a ground for setting it aside, he must, either in his affidavit or notice of motion, point out the particular defect, so tha the opposite party may have a fair opportunity of answering.</p> <p>Though after exception to bail in error they justify by an affidavit which turns out to be a nullity, the court will not entertain a motion to set aside the writ on this ground, but will leave the defendant in error to his remedy by application for a supersedeas under 2 R. S. 598, § 36. Per Lott, senator.</p> <p>Whether an affidavit of justification by bail in error must be entitled, quere.</p> <p>Where bail in error was excepted to, and the party prosecuting the writ caused new bail to be put in and perfected in the manner pointed out by statute; held, on motion to quash the writ, that the court ought not to interfere, though the sureties had justified by a false affidavit, and were utterly insolvent.</p>

<p>On error from the supreme court. The suit originated in the New-York common pleas, where judgment was rendered against Duffy as surety in a recognizance taken before a justice of the peace of the city of New-York, for the good behavior of one Dennis Daly, who was brought before the justice on a charge of having neglected to provide for the support of his wife according to his means. (Nee Ness. Laws of 1833, p. 11, § 7; and 1 R. N. 638, 9.) The recognizance bore date in May 1838, and the condition was in these words: “ Whereas the said Dennis Daly has been duly convicted of being a disorderly person, that is to say, a person who has neglected to provide for the support of his wife Joanna, according to his means, for the last seven years: Now, therefore, the condition of the above recognizance is such, that if the above named Dennis Daly shall be of good behavior towards the people of the state of New-York for the space of one year next ensuing the date hereof, then the above recognizance to be void, otherwise to remain in full force and virtue.” It was alleged in the declaration that, ever since the giving of the recognizance, Daly had neglected to provide for the support of Joanna his wife, according to his means, and had abandoned her. Duffy interposed several pleas, the third of which was, that Daly had not neglected, since the giving of the recognizance, to provide for the support of his wife. Fourth plea, that Joanna was not, and never had been, the wife of Daly. Fifth plea, that the conviction of Daly, mentioned in the declaration, was by the justice alone, without a jury, contrary to the 7th article of the constitution of this state, and that the recognizance was therefore obtained by duress of imprisonment. The last plea was demurred to; and the common pleas adjudged it insufficient. On the trial of the other issues, the plaintiffs gave in evidence a memorial or record of Daly’s conviction, corresponding with the recital in the recognizance. Evidence was also given tending to show that, several years previous to the conviction, Daly and Joanna lived together in Nova Scotia, and were reputed to be husband and wife; that he left her in 1832, and had since resided in the city of New-York; that she came to the city a short time before the conviction, and returned to Nova Scotia soon afterwards; and that he had not provided for her support according to the legal effect of the recognizance. Duffy offered to prove that Joanna was not the wife of Daly, and never had been; but the common pleas rejected the evidence, holding that the conviction was conclusive on this point. Exception. Duffy further offered to show that Daly was married in the city of New-York, six years before the trial, to a woman other than the said Joanna; and that he had ever since lived with and supported his wife and her children. This evidence was also rejected, and Duffy again excepted. The jury rendered a verdict in favor of the plaintiffs; and judgment passed against Duffy upon the whole record. This judgment was affirmed by the supreme court; but the case there turned, as will be seen by the report of it in 1 Hill, 355, on the single question raised by the demurrer to the fifth plea. Duffy after-wards brought error to this court.</p>

<p>On error from the supreme court. The plaintiffs in error, administrators of George Watts deceased, brought an action on the Case ill the superior court of the city of New-York against the defendant in error, for an alleged injury to a certain mill and water privilege, and for obstructing a right of way. The declaration contained four counts, three of which described the water privilege and right of way as “ situate and being at Newark, to wit, at the city and county of New-York;” and in the fourth count they were described as “ situate, lying and being in the township of Newark in the state of New-Jersey, to wit, at the city and county of New-York.” The defendant pleaded the general issue.</p> <p>On the trial in the superior court the plaintiffs gave in evidence a lease for ten years from the defendant to George Watts, the intestate, dated in August, 1831, of a lot of ground, dock and water privilege, situated on the bank of the Passaic river in the state of New-Jersey, “that is to say, thirty feet front on the said river, of the dock, called and known by the name of the stone dock, being the upper end of said dock and adjoining the brook, and to run thirty feet in width, one hundred and fifty feet up the said brook from the front of said dock, together with the use of the dam now across said brook, with the privilege of using the water and water-fall created by said dam; and with the further privilege of flowing so much of the adjoining marsh as maybe necessary, provided the said dam be not raised higher than to flow the water back even with the bottom of the apron of the water-wheel at the mill next above as the same now lays” &c.</p> <p>It further appeared at the trial that the plaintiffs were possessed of a mill erected by their intestate on the demised premises, which was propelled by the water from the dam mentioned in the lease; that the mill next above on the brook belonged to the defendant; that after the plaintiffs’ mill was put in operation their dam flowed the water back so as to raise it eleven inches on the apron of the water-wheel at the defendant’s mill; that the defendant thereupon cut a trench or ditch immediately below his mill, leading from the brook around the dam of the plaintiffs, whereby the water in their dam was reduced to a level with the apron of the defendant’s water-wheel; that the dam had not been altered since the execution of the lease to the plaintiffs’ intestate, nor had the water been raised by it so high at any period as to overflow its top; and that the diversion of the water occasioned by the trench or ditch had greatly obstructed the plaintiffs in the use of their mill and impaired its value. Evidence was also given tending to show that a passage way leading to the demised premises was interrupted by the trench or ditch in question.</p> <p>After the evidence on both sides was closed the defendant moved for a nonsuit, insisting, 1. That the action was local both by statute and at common law, and could not be tried in the city and county of New-York, nor elsewhere in this state; 2. That inasmuch as the proviso in the lease controlled the grant of water power, and reserved the right to the lessor of preventing the water from flowing back upon the apron of his water-wheel, the plaintiffs could not recover without showing that the ditch or drain in question had reduced the water below the level of the apron. The superior court ordered a nonsuit and the plaintiffs excepted. This decision was afterwards affirmed by the supreme court; whereupon the plaintiffs brought error. For the opinion of tfle supreme court, see 23 Wend. 484, et seq.</p>

<p>On error from the supreme court. The defendants in error brought an action of trover against Stalker in the superior court of the city of New-York, to recover the amount of two promissory notes alleged to have been converted by him, viz. one made by J. T. Storm & Co., dated August 5th, 1839, payable in seven months, and another made by Raynor & Pond, dated July 24th, 1839, payable in six months. It appeared that the notes were originally delivered by the makers to Gillespie & Edwards, commission merchants in the city of New-York, on a sale of goods made by them, in the course of their business, for the defendants in error; and that the notes remained in the possession of Gillespie & Edwards until they transferred them to Stalker as hereinafter stated. The main question in the case was as to the effect of this transfer upon the rights of the defendants in error, there being no doubt that, previous thereto, they were the owners of the notes.</p> <p>The transfer took place under the following circumstances. Stalker held a note against Gillespie & Edwards, not endorsed by any person, for ¡¡¡>2044,08, falling due October 3d, 1839, which had been deposited in a bank for collection. On the morning of that day, Gillespie, finding that his firm would not be able to meet the note, and fearing the consequences of suffering it to lie over in the bank, prevailed upon Stalker to withdraw it; promising to pay the amount in a short time, and delivering to Stalker the notes in question as his security. When Stalker received the notes, he had every reason to suppose that Gillespie & Edwards owned them, and was not notified of the contrary until sometime afterwards. The firm of Gillespie &. Edwards failed and stopped payment in November, 1839, without having then or since accounted to the defendants in error for the proceeds of the goods forming the consideration of the notes. Gillespie testified that, intermediate the day when Stalker received the notes, and the failure of the firm of Gillespie & Edwards, the latter paid “ one or more notes in bank, in the regular course of business,” but how many, and to what amount, he was unable to tell. The notes in question were duly paid to Stalker at maturity. It was admitted that they had been demanded of him by the defendants in error, and that he refused to deliver them up.</p> <p>The superior court charged the jury that, if the notes in question were the property of the defendants in error at the time of the transfer, and were not taken by Stalker upon any consideration parted with by him on the credit thereof, nor in payment of the note of Gillespie & Edwards, but as a mere pledge or collateral security for that note, then the defendants in error were entitled to recover; and the notes having been paid to Stalker at maturity, he was liable, if at all, for their nominal amount. The jury found a verdict against Stalker for the amount of the notes, and he, having excepted to the charge, brought error to the supreme court, where the judgment of the superior court was affirmed. He then brought error to this court. The case was argued here by</p>

<p>If one of several partners obtain a loan of money for bis individual use, by giving the note or check of the firm, but without their authority, the transaction will nevertheless bind all the partners, unless there be something in it to induce the lender to suspect that tire money is not borrowed for their benefit. Per Walworth, chancellor.</p> <p>But if one of the partners be unknown at the time the money is borrowed, and the loan be made exclusively upon the credit of the others, the lender supposing that they alone constitute the fijm, the transaction will only bind the latter. Per Walworth, chancellor.</p> <p>A partnership cannot acquire property in a note which one of the partners has induced a third person to execute by fraudulently promising to raise money upon it for him ; and this, though the other partners are not in fact privy to the fraud. Per Walworth, chancellor.</p> <p>If the note be transferred by the partner who obtained it, in satisfaction of partnership demands, and the maker afterwards pay it, he may maintain either assumpsit or trover against all the partners. Per Walworth, chancellor.</p> <p>Actions of tort, whether, against partners or others, may be brought against all or any of the persons who are liable. Per Walworth, chancellor.</p> <p>P., a member of a firm composed of M., P. and F., borrowed money for his own private use upon a check signed “ M., P. & Co.,” the name of the firm; the lender not being aware that F. was a member of it, but supposing it consisted of M. and P. only. The check was satisfied and taken up by P. with notes which he fraudulently induced one T. to execute; and the latter, after paying the notes to the holder, brought assumpsit against M„ P. and F., to compel them to refund. They defended, however, and a verdict and judgment was rendered in their favor; whereupon T. brought trover against M. alone, claiming that he was privy to the fraud by which the notes were obtained, or that at all events they had been wrongfully converted to the joint use of himself and P. At the trial, M- gave in evidence the former judgment, without having specially pleaded it, and the court decided that it constituted a conclusive bar to T.’s right of recovery. Held, that the decision was erroneous.</p> <p>Held further, that evidence of a former verdict and judgment is admissible mider the general issue in actions of trover and assumpsit.</p> <p>Semble, that a former verdict and judgment, when properly received in evidence under the general issue, is in all cases just as conclusive as if specially pleaded. Per Bookee and Putnam, senators; Walworth, chancellor, contra.</p> <p>A former verdict and judgment may be specially pleaded in an action of trover. Per Walworth, chancellor.</p> <p>Where a matter has been once tried and submitted to a jury, and judgment ren. dered for the defendant, he may insist upon the judgment as a bar to a second action for the same cause, though the plaintiff foiled in the first by reason of the insufficiency of his evidence. Per Walworth, chancellor.</p> <p>Otherwise, if the declaration in the first suit was general, embracing several causes of action beside the one sought to be again litigated, and the plaintiff gave no evidence in respect to the latter, but suffered the case to go to the jury upon a different part of his claim. Per Walworth, chancellor.</p> <p>Where the question in the second suit is identical with the one tried and determined in the first, and the evidence to maintain the second would have entitled the plaintiff to recover in the first, had it been there given, the verdict and judgment will operate as a bar; and this, though the second suit be against only a part of those who were defendants in the first, and though the form of action in both suits be not the same. Per Walworth, chancellor; Bookee, senator, concurring.</p> <p>Otherwise if, by reason of the difference between the two suits in respect to parties or the form of action, the evidence to maintain the second would not have entitled the plaintiff to recover in the first. Per Walworth, chancellor, and Bookee, senator.</p>

<p>On error from the supreme court. Abbott and Ely sued Burgess in the superior court of the city of New-York, on a judgment rendered by the superior court of Cincinnati, Ohio. The declaration described the judgment as having been rendered against Burgess and one Henry Crane upon promises, but it did not show whether Crane was still living or not. Burgess interposed a general demurrer, and insisted before the superior court that the declaration was defective in not excusing the nonjoinder of Crane. Judgment was rendered against him, however, after which the cause was removed into the supreme court by writ of error, and the judgment affirmed. Burgess then brought error to this court. For the opinion of the supreme court, see 1 Hill, 477, at seq.</p>

On error from the supreme court, where Stewart brought an action of ejectment against Hutchins, and was nonsuited at the trial. Afterwards, Stewart moved for a new trial on a bill of exceptions, but the motion was denied, and judgment rendered against him for costs. He then sued out the present error. For the facts of the case, together with the opinion of the supreme court, see 13 Wend. 485, et seq.

<p>Ice, when put away in an ice-house’for domestic use, becomes individual property, so as to be the subject of larceny.</p> <p>The public prosecutor has no right to object, on the trial of an indictment, that a question put to one of the witnesses calls for an answer tending to expose him to criminal punishment; this being an objection which the witness alone is authorized to make.</p> <p>Under an indictment for larceny alleging the goods to be the property of F., and to have been stolen from him, the prisoner may be convicted, though it should turn out that F.’s possession was acquired by theft; and hence the enquiry whether F. had thus acquired possession is irrelevant.</p> <p>There are no accessories in petit larceny; but all concerned in the commission of the offence are principals.</p>

<p>Under the act of 1820, relating to the redemption of lands sold on execution, a creditor whose judgment was a lien on only a part of the premises sold, acquired no right to redeem the whole.</p> <p>The provision in the revised statutes giving this right applies only to sales made after the 1st of January, 1830, and was not intended to operate retrospectively so as to interfere with purchases previously made.</p> <p>Accordingly, where real estate was sold on execution in Octoher, 1829, and a judgment creditor, whose lien extended only to a portion of the property sold, sought to redeem the whole under the revised statutes; held, that he had no such right.</p> <p>A creditor can in no case redeem by virtue of a lien upon a portion of the debtor’s property not sufficiently described in the sheriff’s advertisement &e. Per Root, senator.</p> <p>Whether a rent-charge reserved upon a lease in fee can be sold on execution as real estate and redeemed by a creditor, quere.</p>

On error from the supreme court. St. John & Tousey sued the present plaintiffs in error, in the New-York common pleas, where judgment was rendered against the former. The supreme court afterwards reversed the judgment, and awarded a venire de novo in the common pleas.

On' error from the supreme court, where The Merchants’ Bank of the City of New-York were sued for the negligence of their notary in not duly presenting and protesting a bill of exchange sent them for collection by Woodruff, the plaintiff below, whereby he lost his remedy against the drawer, acceptor and endorser. The bill was in these words : Detroit, Nov. 15th, 1838.

On error to the supreme court. John S. Van Winkle, the defendant in error, brought ejectment against John Constantine, in the superior court of the city of New-York, to recover an undivided moiety of certain premises designated on a map made in 1748, as lot No. 7, and now known as lot No. 182, Fulton street, in said city. The action was commenced in. 1831.

<p>On error from the supreme court, where Downer sued Thompson in an action of assumpsit, and the latter recovered judgment. The declaration contained counts for goods and cement bargained and sold, and for goods and cement sold and delivered. Plea, the general issue, with notice of special matter. The cause was tried before Gridley, C. Judge, at the Oneida circuit, in October, 1840, and the facts proved on the trial were substantially as follows :</p> <p>The defendant, who resided at Hastings, Westchester county, addressed a létter to the plaintiff, who resided at Chittenango, Madison county, directing him to forward two hundred and fifty barrels of cement as soon as practicable,; adding, “ I hope the quality will be of "the best.” This letter was dated August 21st, 1838. On the 4th of September following, the plaintiff deposited on board a canal boat, to the care of Messrs. A. & J. Howland, Troy, two hundred and sixty barrels of cement, directed to the defendant at Hastings. The Messrs. Howland duly forwarded the cement from Troy by. a schooner, and it arrived at Hastings on the 17th of the same month.</p> <p>It appeared by the testimony of the captain of the schooner, A. Osborn, that on arriving at Hastings he saw the defendant, and told him the cement was ready for delivery; that the defendant thereupon came on board and asked how many barrels there were, to which the captain replied, two hundred and sixty; that the defendant said he had not ordered so many, but only two hundred and fifty barrels, and the cement, moreover, had not come as soon by two or three weeks as he expected, in consequence of which he had been obliged to purchase another lot; that several experiments were then made by the defendant, with a view of ascertaining the quality of the cement, and ne finally refused to accept it, saying “ it was not as good cement as he had sent for, and he should not take it at any rate;” that the captain thereupon observed, if the cement was not accepted, he must carry it to New-York and store it, and he accordingly did so. He further testified that he did not offer to the defendant two hundred and fifty barrels only, nor tell him he could have any quantity less than the two hundred and sixty barrels on board.</p> <p>Nathan Cobb testified that “ the shipping bill of the cement was made out by him and delivered to the captain of the canal boatand that he, the witness, was then acting as the plaintiff’s agent. This bill stated the number of barrels to be two hundred and sixty. The bill sent by the schooner, and signed by the Messrs. Howland, stated the number of barrels in the same way, and directed the captain of the schooner to “ collect freight at one shilling and three pence per barrel.”</p> <p>It further appeared from the testimony of Cobb that the defendant’s usual mode of selling cement was by weight, calling each three hundred pounds a barrel; that the barrels in question varied in weight, some containing about three hundred pounds, and others considerably more; and that, estimating the cement by weight, and calling each three hundred pounds a barrel, the quantity sent would exceed two hundred and sixty barrels.</p> <p>Cobb also testified as follows: “ The bill [referring to a memorandum in figures kept by another person at the time of putting the cement on board the canal boat] indicates the weight, [of the cement,] and if witness was to make out the bill from that paper, he would do it by weight. But the plaintiff directed him last spring to make out this bill by number, and he made it out accordingly. In the plaintiff’s books the charge is made to Thompson [the defendant] by weight, indicating the number of barrels.”</p> <p>The plaintiff read in evidence a letter received by him from the defendant, dated October 11th, 1838, in these words: “ Sir, The two hundred and fifty barrels of cement which you sent to Hastings in compliance with my order, were, upon inspection, rejected, and were then removed by your captain. I am advised by my counsel that I am in nowise responsible to you for this cement, the warranty which the law implies on your part that it shall pass inspection at the works, having failed. Under these circumstances, and as my contract made it necessary for me to procure other cement, which I have done, you will now take notice that I have nothing to do with it."'</p> <p>It appeared that the cement was worth $1,94 per barrel, estimating by count and including freight and charges.</p> <p>The plaintiff here rested, claiming to recover the value of two hundred and fifty barrels; whereupon the defendant moved for a nonsuit, insisting that the evidence given did not sustain either count in the declaration. The circuit judge granted the motion, and the plaintiff excepted. At the July term of the supreme court, 1841, the plaintiff moved for a new trial, but at the succeeding October term the motion was denied. For the opinion of the supreme court delivered on that occasion, see 1 Hill, 138. The plaintiff afterwards brought error to this court, where the case was argued by</p>

<p>Though the cashier of a foreign banking corporation made a loan of money in the city of New-York on the borrower’s check; held, not a violation of 1 R. S. 712, § 6, it appearing that the transaction was an isolated one, and that the corporation kept no office for banking purposes in this state.</p>

On error from the supreme court. The case originated in the New-York common pleas, where Spinola brought an action against Miln for stores .furnished the ship Henry Kneeland, and recovered judgment, which was afterwards affirmed by the supreme court; whereupon Miln brought error. For the facts of the case, and the opinion of the supreme court, see 4 Hill, 177,8.

On error from the supreme court, where Webb brought ejectment against Rice and Aldrich, and judgment was rendered in favor of the defendants; whereupon the plaintiff brought error» For a report of the case in the supreme court, together with the opinions there delivered, see 1 Hill, 606 et seq»

In debt on bond, the defendant Cowman, who was alone served with process, pleaded non est factum, and gave notice of the defence of usury, adding an affidavit to the notice for the purpose of being able to call the plaintiff as a witness; but the affidavit was insufficient. Issue was joined in August, 1842, and the cause was noticed for trial at several circuits; but was put off by the defendant, once by an order to stay proceedings, and once by an injunction from chancery.

<p>The statute of limitations is a defence not favored, and the party intending to rely upon it must plead it in the first instance. He will not be allowed to amend by adding such plea.</p>

The defendant was arrested on a capias ad respondendum at the suit of the plaintiff, in an action of trover, for §1600 damages. The circuit judge made an order that the plaintiff shew cause of action.

In assumpsit, after the cause was at issue, the court, on the defendant’s motion, allowed him to withdraw the plea of nonassumpsit and plead a tender before suit brought, provided he pleaded and paid costs within ten days. The terms were complied with, and the defendant interposed a plea of tender, to which the plaintiff demurred.

On the 7th of May, 1842, an execution against Brown, in favor of the Herkimer County Bank, for $1026,22, was issued out of this court, and delivered to the sheriff of Albany comity, and a levy was soon after made upon Brown’s personal property. He was then in business as a hardware merchant in the city of Albany, and continued so in business, buying and selling, up to the 20th of July, 1843.

On the 13th of November, the defendants obtained a judge’s •order that the plaintiff file security for costs in twenty days, or show cause at the next special term: and in the mean time staying the plaintiff’s proceedings. The order was obtained on an affidavit that the plaintiff had removed from the state in April last, which fact did not come to the knowledge of the defendants until about the first of September last.

Motion to compel Leland, the defendant, to deliver Up a release to be cancelled. The facts were as follows: Calvin Hall, being on unfriendly terms with the defendant Leland, purchased a promissory note made by him and Clark, and immediately commenced this suit upon it, serving the declaration upon Leland only.

<p>A declaration containing the common money counts commenced thus—“ B. complains of H., president of The St. Lawrence Bank, a banking association organized under the act passed April 18th, 1838, to authorize the business of banking”— and then proceeded to allege that the defendants became indebted, promised to pay &c., but afterwards refused. Held, not a declaration agamst the bank, but against H. individually, the words added to his name being mere descriptio persona.</p> <p>Otherwise, had the declaration alleged that the bank became indebted, and promised to pay &c.</p>

<p>Where judgment was entered against husband and wife on a warrant of attorney executed by both, and the plaintiff subsequently issued execution; held, that the warrant was void in respect to the wife, and that the proceedings as to her must be vacated.</p> <p>Held further, that the court might give the plaintiff leave to amend the judgment record and execution, on payment of costs of the motion, so as to allow the proceedings to stand in respect to the husband.</p>

<p>Where a corporation improperly refuses to transfer stock on its books, the party in. jured has an ample remedy by action, and therefore a mandamus to compel such transfer will not lie.</p>

The relator was one of the special justices in the city of New-York, and was. impeached and tried before the county court. (Const. Art. 4, § 7.) He subsequently presented to the board of supervisors of the county an account for counsel fees and other expenses attending his defence on the impeachment, and the board audited and allowed the account at $1061,48.

While this action of assumpsit was pending, and on the 30th of March last, the defendant obtained his discharge under the bankrupt act. On the 15th of May, the plaintiff entered the defendant’s default, perfected judgment, and subsequently issued execution.

<p>Where a judgment for costs was recovered by a sheriff, in an action on the case against him for not returning an execution, and the plaintiff afterwards petitioned for and obtained a discharge under the bankrupt act; held, that the judgment was a debt provable under the act, and was therefore reached by the discharge.</p> <p>Held further, that in such case the court would, on motion of the plaintiff, order a perpetual stay of execution upon the judgment.</p>

Sandford, the plaintiff, brought several actions of covenant in this court, all depending upon the same questions, of which one was against Halsey, and another against the defendant, Sinclair. In June, 1842, the action against Halsey was tried, and the plaintiff' nonsuited.

Case for seducing the plaintiff’s daughter and getting her with child. The action was commenced in March, 1842, and was subsequently referred by stipulation to three referees, with an agreement that judgment might be entered on their report in the same manner as though it was a referable action There was a hearing in September, 1842, and the referees soon after-wards agreed to make a report for $150, in favor of the plaintiff.

<p>The rule of evidence which precludes a party from using the copy of a deed, record or other written instrument, without first accounting for the absence of the original, is not applied on motions in the course of practice.</p> <p>A bankrupt’s discharge extends only to such debts as the bankrupt owed at the time of presenting his petition. Per Bronson, J.</p> <p>Whether the bankrupt can be relieved from a judgment recovered against him intermediate the presentation of his petition and the granting of the discharge, upon a promissory note given before his proceedings were commenced, quere.</p> <p>A promissory note is merged in and extinguished by a judgment recovered thereon, and the judgment becomes a new debt. Per Bronson, J.</p> <p>Where a defendant, during the pendency of a suit against him on a promissory note, presented a petition to be discharged under the bankrupt law, and then compromised the claim by giving a cognovit for a part of it, agreeing at the same time that any discharge he might obtain should not affect the rights of the plaintiff: Held, on motion by the defendant for a perpetual stay of proceedings, that his discharge obtained after judgment upon the cognovit did not entitle him to relief.</p>

<p>Under 2 R. S. 760, § 1, a person sued by an infant whose next friend has not filed security for costs, has a right to require such security, though it appear that the next friend is abundantly able to pay.</p> <p>The application to compel the filing of security may be made directly to the court, on notice, without previously applying to a judge at chambers.</p>

On an affidavit that the plaintiff was not a resident of this state, but a subject of the queen of England, the defendants obtained a judge’s order that the plaintiff file security for costs, or show cause at the present term.

Assumpsit on a special agreement by which the plaintiff was to deliver a quantity of logs, for which the defendants agreed to pay 68 cents each; one half to be paid on delivery, and the remaining half in ninety days. Averment, that the logs were delivered, and that the defendants have not paid the one half of the price which was payable on the delivery, nor the remaining half which was payable in ninety days thereafter.

This cause having been referred on the plaintiff’s motion in March, 1840, was brought to a hearing before the referees on the 10th of April following, when a part of the testimony was taken. On the plaintiff’s application, the referees then adjourned to the third Friday in June. Only two of the referees appeared at the adjourned day, and they granted a further adjournment to the 14th of July.

<p>Walker recovered a judgment- against Jackson in the superior court of the city of New-York, and on a writ of error this court reversed the judgment and awarded a venire de novo in the court below.</p>

<p>The statute abolishing the rule to plead (Sess. I. 1840, p. 333, § 16) applies only to personal actions, and in cases of scire facias; but does not affect the practice in actions of ejectment.</p>

<p>The court will order a special report of referees to be sent back, if the circumstances of the case appear to require it, with instructions to state the reasons or grounds on which any particular claim of either party was allowed or disallowed.</p>

<p>This was an action of debt brought against the defendants Elisha and Jonathan Cady, pursuant to Stat. 1834, p. 544, § 12, for a wilful injury to the plaintiffs’ rail-road. The defendants appeared by the same attorney, and pleaded separately nil debet. On the trial, the jury found a verdict against the defendant Elisha, for four dollars, and acquitted the defendant Jonathan. The plaintiffs made a case and moved for a new trial against both defendants; but the motion was denied.</p>

Motion by plaintiffs for the re-taxation of costs. The action was assault and battery, and the plaintiffs were nonsuited on the trial. The defendants appeared by different attorneys—the attorneys not being partners nor in any way connectéd in business—and pleaded separately; and on the trial different counsel appeared for each defendant. The questions were, however, the same in relation to both defendants.

<p>Tn an action against three for a tort, the declaration contained two counts, to which respectively the defendants each pleaded seven pleas, and at the trial the plaintiff was nonsuited. Held, that the defendants’ attorney was entitled to charge in his bill of costs for six pleas, i. e. two for each defendant.</p> <p>In general, where a party moving for re-taxation claims costs of the motion in his notice, he will be compelled to pay costs, though a re-taxation be ordered. .</p>

P. Beach and Start sued Adams before a justice-, and declared in trespass for tearing down a tollgate. On the trial it was proved that in July, 1842, the defendant was passing with his team, the gate being shut, and the keeper refused to open it without receiving toll. The defendant thereupon opened the gate himself, tore it down, and passed on with his team.

Hill brought replevin against Sarah B. Stocking, for taking &c. certain goods consisting of drags, medicines and other articles ; alleging the taking to have been on the 11th of April, 1842, from a store, to wit, No. 113 Main-street, Buffalo. The defendant pleaded non cepit, and interposed three avowries, setting up that the taking was by way of distress for rent.

<p>Case, tried at the Onondaga circuit in September, 1842, before Moseley, C. Judge. The action was brought to recover damages for an injury occasioned to the plaintiff by the explosion of a quantity of gunpowder belonging to the defendants. On the trial it appeared, among other things, that the defendants received about six hundred pounds of powder in kegs, and placed it in the. loft of a store in the village of Syracuse; that they were soon afterwards notified to remove it by the trustees of the village, and did so by depositing it in the upper story of a carpenter’s shop; that the shop was built of wood, and was situated on the canal, within the limits of the corporation; that there was a lumber yard near the shop, and several wooden buildings, some of which were inhabited dwellings, and others . were used as stables, &c,; and that the lower part of the shop was occupied during the day by a carpenter, but no fire was allowed in it, and it was locked up each night. It further appeared that the shop took fire on the night of the 20th of August, 1841, about five days after the powder had been deposited in it; and that, during the progress of the fire, the powder exploded, killing several persons, and seriously wounding and injuring others, among whom was the plaintiff. Proof was also given tending to show that the fact of the powder having been deposited in the shop was kept a secret, at the request of one of the defendants, until the time of the fire; and that then, owing to the confusion which prevailed, it was impossible to apprise the persons assembled of their danger, in season to prevent the catastrophe.</p> <p>In the course of the trial, the plaintiff offered to show that Malcolm, one of the defendants, was a man of wealth. This was objected to as irrelevant, but the circuit judge overruled the objection, and admitted the evidence, to which the defendants’ counsel excepted.</p> <p>The circuit judge charged the jury, among other things, that they should enquire whether the deposit of so large a quantity of gunpowder in the carpenter’s shop “was highly inexpedient, and dangerous to the lives of the citizens residing in the neighborhood.” He further told the jury that if they found in the affirmative on this question, their next enquiry should be whether the plaintiff received the injury complained of “in consequence of the explosion of the powder, he being lawfully engaged in the discharge of his duty at the fire;” and that, “in connection with the question of carelessness on the part of the defendants, it was proper to take into consideration the fact of their having been notified to remove the powder from its former place of deposit.” The defendants’ counsel excepted to the charge, and asked the circuit judge to instruct the jury that, unless the injury which the plaintiff sustained arose from the careless or negligent act of the defendants, they were not liable; and the judge did so charge. He was also requested to charge, 1st, That if the fire was communicated to the carpenter’s shop without any carelessness or negligence of the defendants, then the plaintiff could not recover; and 2d, That though “ the shop was, in the opinion ©f the jury, an improper place for storing the powder, by reason* of the lumber ^nd other combustible materials and buildings in the vicinity, yet if the accident did not happen in. consequence of these, the defendants were not liable.” *Thé jgdge refused thus to charge, and the defendants’ counsel excepted. The jury found a verdict for $730 damages in favor of the plaintiff, and the defendants now moved for a new trial on a bill of exceptions.</p>

Assumpsit brought against the defendants as a foreign corporation, by attachment. The defendants appeared and pleaded non assumpsit, and the cause was tried at the New-York circuit before Kent, C. Judge, in April, 1843. The plaintiff gave in evidence his deposit or bank-book of account with the defendants’ bank, on which there stood to the plaintiff’s credit the sum of $496,09, being a balance struck on the 1st oí October, 1842, in the hand-writing of a clerk of the bank.

Demurrer. The action was debt brought by the city of Utica to recover $60 from the defendant for repeated violations of § 51 of the city by-laws and ordinances.

On the 27th of December, 1841, the parties executed mutual bonds of submission, conditioned to abide and perform the award of Camp, Wallis and Slosson, “ so as the award of the said arbitrators be made &c. in writing, ready to be delivered to the said parties in difference, on or before the first day of February nextand they agreed that judgment should be rendered upon the award by the Tioga common pleas pursuant to the statute.

Demurrer to plea. The declaration contained toe common counts in assumpsit, including an insimul computassent.

<p>In general, a justice’s attachment authorizing the seizure of goods, if regular on its face, is sufficient to protect the officer who executes it, without showing the preliminary proceedings. Per Bronson, J.</p> <p>But where the attachment is used for the purpose of avoiding a sale by the debtor as being fraudulent in respect to creditors, the officer must show that the justice had jurisdiction.</p> <p>Where it is necessary in a plea of justification under an attachment to show jurisdiction, the facts on which jurisdiction depends must be set forth. General averments that the party complied with the statute, that the proceedings were according to its requirements &c., will not answer.</p> <p>An attachment against a non-resident of the county, under the 33d section of the act to abolish imprisonment for debt, may issue without any affidavit Per Bronson, J.</p> <p>In trespass de bonis, a plea that- the goods were the property of one S., a third person, and that the defendants took them by virtue of an attachment against him, gives no color for the action, and is bad as amounting to the general issue, even though it admit that the plaintiff claimed the goods, at the time when &c., under a pretended sale to him from S. Per Bronson, J.</p> <p>Otherwise, if the plea also admit that the goods were taken by the defendants from the possession of the plaintiff.</p> <p>In such case, if the attachment was issued under the 33d section of the act to abolish imprisonment for debt, the plea must show that the debtor was a non-resident of the county, and that the plaintiff in the attachment was his creditor. An averment that the justice issued the attachment on an affidavit of these facts, will be of no avail.</p> <p>The affidavit, not being required by the statute, is extra-judicial. Per Bronson, J.</p>

<p>Summary proceedings to recover possession of demised premises. On the 12th of April, 1842, William Ketcham went before a supreme court commissioner at Buffalo and made affidavit as follows: “ William Ketcham of said city, agent of Sarah B. Stocking of the same place, being duly sworn, deposes and says, that on or about the 24th day of January, A. D. 1834, Joseph Stocking, in his life time, since deceased, leased and rented unto Nathaniel Wilgus of said city, for the term of eight years from the first day of April then next, the land and premises &c., [describing certain premises in the city of Buffalo, and referring to the lease then in the deponent’s possession.] And this deponent further says, that the term granted in and by the said lease has expired; and that the said Wilgus, or his assigns, or those claiming under him or them, hold over and continue in possession of said premises, without the permission of this deponent or the said Sarah B. Stocking. Deponent further says, that the said Joseph Stocking departed this life on or about the 3d day of September, 1835, leaving the said Sarah B. Stocking his widow, him surviving; that after the death of the said Joseph Stocking, the said Sarah B. Stocking becam,e legally possessed of the said lease, and entitled to receive the accruing rents pursuant to the terms of the said lease, and is now entitled to the possession of the said premises. Deponent further says, that since the death of the said Joseph, the said Wilgus, and those claiming under him, have, by paying rent to the said Sarah, and other acts, recognized her right to the said premises and to receive the rents thereof.” Upon this affidavit the commissioner issued a summons directed as follows : “ To Nathaniel Wilgus of the city of Buffalo, or any other person claiming possession of the premises hereinafter mentioned.” The summons, after reciting part of the affidavit of Ketcham, proceeded thus: “ Therefore, in the name of the people &c., you, and those claiming under you, are hereby summoned and required” &c. Wilber, a constable, to whom the summons was delivered, made affidavit on the summons that he had served the same by giving personal notice thereof to Wilgus; “ also by leaving a copy thereof with Milo W. Hill, who claims possession of a portion of the premises within described.” Hill appeared and made objections to the sufficiency of the affidavit and summons, which were overruled by the commissioner; and such proceedings were further had that Hill was put out of possession by virtue of a warrant afterwards issued. He thereupon removed the proceedings into this court by certiorari.</p>

Assumpsit, tried at the Monroe circuit in February, 1843, before Dayton, C. Judge.

Assumpsit, tried at the Monroe circuit in February, 1843, before Dayton, C. Judge. The action was brought against the same persons who were defendants in Allen v. Coit and others, (ante, p. 318;) and the two cases were substantially alike, except as to the following particulars.

Covenant upon the defendant’s sealed agreement to indemnify and save harmless the plaintiff from any claim or demand that one Fuller might then have or might thereafter have against the plaintiff, by reason of his having executed a certain stipulation in a chancery suit.

•Error to the Yates C. P. The plaintiffs sued Thorne before a justice, and declared in debt for selling spirituous liquor to be drank in his house without having a license. The declaration alleged that the defendant, “ on the 15th day of May, 1842, and on divers other days and times as ivell before as afterwards, and before the commencement of this suit, at &c., sold” <fcc.

<p>The statute abolishing the action for mesne profits, and substituting a suggestion upon the record, applies only to mesne profits strictly, the right to which results from the recovery in ejectment. The original entry is still the subject of an action of trespass; and so are mesne profits, where the plaintiff obtains possession without suit, or without prosecuting the suit to judgment. Per Cowen, J.</p> <p>Nor does the statute apply where the claim for mesne profits is not solely against the person who was defendant in the ejectment, but is against him and others jointly.</p> <p>Trespass for mesne profits may be maintained in such case, though it appear that the plaintiff, before the ouster complained of, had entered into an executory contract for the sale of the premises, and that his vendee was in possession at the time of the ouster. Per Cowen, J.</p> <p>In an action for mesne profits, the record of the plaintiff’s recovery in ejectment is not conclusive evidence of his title as against strangers to the record, but only as against parties and privies.</p> <p>Semble, that the record is not even admissible as against strangers, on the question of title. Per Nelson, Ch. J.</p> <p>In trespass against several, a demurrer was interposed to some of the counts, and an issue of fact joined as to the residue; and, on the trial of the latter issue, one of the defendants was acquitted. Held, that this did not deprive the plaintiff of the right to have contingent damages assessed upon the counts demurred to.</p> <p>It is not ground for demurring to a declaration that consequential damages are laid in it which do not legitimately result from the acts of all the defendants. Per Nelson, Ch. J.</p> <p>A demurrer to two counts cannot be sustained unless both arc defective. Per Nelson, Ch. J.</p>

P. John P. Cowing and Henry Seymour sued Nelson before a justice, and declared on a note drawn payable to them of which the following is a copy: “ Stockbridge, May 10,1841. Three months after date I promise to pay Cowing & Seymour, or bearer, at my residence, seventeen dollars, with interest, for value received. [Signed] William Nelson.” Plea, the general issue, and notice of special matter.

P. Thomas sued Todd before a justice, and declared for rent due from the defendant. The defence was, payment of a part, and tender of the residue. On the 5th of May, 1842, the defendant paid the plaintiff $23 towards the rent in bank bills, and took a receipt. The whole controversy arose out of the fact that one of the bills, which was for five dollars, turned out to be counterfeit. Both parties, as may be inferred from the case, lived in Utica.

P. Crandall sued Randall by warrant before a justice on the 18th of January, 1842, and declared in trespass quare clausum fregit. The defendant pleaded orally the general issue, and gave notice that on the trial he would prove that the locus in quo was a public highway. No bond was offered.

<p>Case for malicious prosecution, tried at the Senéea circuit in. May, 1842, before Moseley, C. Judge. The alleged prosecution was in the form of a criminal complaint made by the defendant before Joseph Dunlap, a justice of the peace of Seneca county, and the declaration averred, among other things, that the defendant “ deserted and abandoned the complaint and prosecution, and that the same are wholly ended and determined.” The complaint was as follows: “ Seneca county, ss.—Newcomb Cleveland being duly sworn deposeth and saith, that on &c., at the town of Ovid in said county, John B. Clark [the plaintiff] designedly and by certain false pretences, to wit, that he had a quantity of wheat of good merchantable quality, did obtain from the said Newcomb Cleveland one hundred and eight dollars and thirty-five cents, being money of the said Newcomb Cleveland, with intent to cheat and defraud him thereof.” This was sworn to on the 13th of March, 1841, and thereupon the justice issued a warrant against Clark, which was afterwards endorsed by a justice of the county of Cortland, where Clark was found and arrested. The constable took him before one of the judges of the Cortland county courts, and he there entered into a recognizance to appear at the next general sessions in Seneca county. He appeared pursuant to the terms of the recognizance, but the defendant did not appear, nor was any charge preferred against Clark before the grand jury. The constable who arrested Clark let him go on his entering into the recognizance, and he was never taken before the justice who issued the warrant. It further appeared that the warrant had not been returned to the justice ; and the constable swore that he had searched for it but had not seen it since the time when the recognizance was taken, and did not know what had become of it. The plaintiff gave evidence ténding to show that the complaint was without probable cause &c., and then rested; whereupon the defendant moved for a nonsuit, insisting, among other things, that Clark could not be let to bail in Cortland county; that the warrant was yet in force •, and that the proceedings upon the complaint Avere not at an end. The circuit judge refused to nonsuit, and submitted the cause to the jury, rvho found a verdict for the plaintiff of $192,75. The defendant now moved for a new trial on a case.</p>

Demurrer to declaration. The plaintiff complains of Peter Clarke and Maria H. Clarke his wife, the said Maria being the next of kin, child and heir of one Hannah Fisher, for that whereas on the 13th of August, 1814, at &c., by a certain indenture made between one John Fisher, now deceased, and Cornelia his wife, and the said Hannah Fisher, also now deceased, of the first part, and the plaintiff of the second part, sealed &c., the said parties of the first part granted and…

Costs in replevin. The plaintiff declared for taking &c. a quantity of household furniture, and the declaration contained but one count, to which the only plea was non. cepit. On the trial, the defendant proved that he was a constable, and took the furniture under a distress warrant. The plaintiff claimed that the furniture was exempt, and the jury found in his favor as to part of it, assessing the value at §90.

Re-taxation of costs. An attachment having been applied for against an absconding debtor, the firm of Williamson, Clark & Co., who claimed to have a demand against him, filed with the officer an affidavit of the amount of the demand, together with a petition, pursuant to.,1 R. iS. 770, §§ 37, 8, 2d ed.; and the demand was afterwards proved before the trustees and allowed at $10,92.

<p>The owner of lands “ appropriated by the canal commissioners to the use of the public” is entitled to have his damages appraised as soon as the agents of the state have taken possession of the property and commenced executing the contemplated work. He is not bound to wait until the work is completed.</p>

On the 10th of March, 1840, the American Exchange Bank commenced a suit by attachment against the Morris Canal and Banking Company, a foreign corporation; and Jacob Acker, then sheriff of the city and county of New-York, to whom the attachment was delivered, seized the hanking house and certain other property of the company. On the 26th of June following, Richards & Selden commenced an action in the same way against the company, and the same property was attached.

<p>Where service of a paper is delayed until the day on which a default for the want of it may be regularly taken, and the attorney, without knowledge of any service, takes the default on that day, it will be upheld as regular, though in fact taken after the paper was served.</p> <p>Accordingly, where an affidavit to prevent an inquest was served on the second day of the circuit, by leaving it at the office of the plaintiff’s attorney, no one being in at the time, and he took the inquest a few moments afterwards, but without knowing that the affidavit had been served; held, that his proceedings were regular.</p> <p>An affidavit to prevent an inquest sometimes may and at other times should be served in a different manner from what is required in relation to other papers. Per Bronson, J.</p> <p>Where the affidavit is served at the circuit, and the plaintiff’s attorney is not present, it may be delivered to the counsel having charge of the cause. Per Bronson, J.</p> <p>If the affidavit is not delivered at the circuit, it must be served in such a way that it will probably come to the knowledge of the attorney in season to enable him to communicate with his counsel before the inquest is taken. Per Bronson, J.</p>

The Bank of Dansville is an association formed under the general banking law of 1838. The articles provide for the election of thirteen directors on the first Tuesday of January, annually. At the election held in January last, thirteen per-' sons were declared elected, as to six of whom there was a contest, and other persons claimed their places.

The plaintiff brought an action of assumpsit against Benjamin and Charles B. Tatham, intending to charge them as partners. On the trial, however, it turned out that Charles was. only a clerk in the house of Tatham & Brothers; whereupon the plaintiff was nonsuited, and judgment obtained against him for costs. He then commenced this suit against Benjamin, George N. and Henry B. Tatham, to recover the same demand for which the first action was brought.

Covenant against the defendant as the assignee of a lease made by the testator, to recover nine years rent. The annual rent reserved by the lease was 18| bushels of wheat, four fat hens, and one day’s service with carriage and horses. The defence did not go to the items of the plaintiff^ claim, but denied the defendant’s liability altogether.

Motion by the defendant to set aside an inquest taken at the Chautauque circuit in January last. The attorney of record for the plaintiffs left the state in November last, with the intention of settling elsewhere, if he found a place which pleased him, leaving his law partner in charge of the business. In December following, the partner served notice of trial and inquest by mail, in the name of the attorney of record.

Motion by the defendant for a re-taxation of costs. The plaintiff, who had the verdict, produced before the taxing officer an affidavit of the subpoenaing and attendance of a great number of witnesses.

<p>A plaintiff who has been nonsuited at the circuit on the ground that the declaration contained no count adapted to the nature of his case, will not be allowed to amend by adding a new count, except upon condition of paying all costs subsequent to the plea.</p> <p>The plaintiff, having been nonsuited at the circuit, made an unsuccessful application for a new trial, and judgment was rendered against him. He removed the cause into the court of errors, where the judgment was reversed, and a venire de novo ordered, with costs in error to abide the event. Afterwards, he applied for leave to amend his declaration, by adding a new count, and the application was lefused, except upon condition of his paying all costs in this court subsequent to the plea, and relinquishing his contingent right to the costs in error.</p>

Motion to set aside an inquest taken at the Albany circuit in January last, for irregularity, and also on an affidavit of merits. The declaration was served on the 8th of November last; and issue was joined on the 29th of that month. On the 1st of December, a notice of trial and inquest was served for the circuit to be held on the 29th of January.

Bushnell, the defendant, was tenant of certain premises in Geneva, and owed rent for the same to Cornelius Bogert of the city of New-York. On the 15th of August, 1843, the sheriff levied the execution in this case upon goods of the defendant on the demised premises, which were subject to distress for rent; but he did not remove the property. The sheriff also levied upon other property off the demised premises.

Costs against executors. The testator died in July, 1842,-having by his last will appointed the three defendants executors, who proved the will and obtained letters testamentary on the 5th of November following. On the 11th of March, 1843, the plaintiff presented an account against the testator, to Elwell, one of the executors, the debtor side of which amounted to $1752,50, and the balance claimed to be due the plaintiff was $1092,49.

<p>In presenting a claim against an estate to executors, under 2 R. S. 88, § 35, it is not essential that a personal interview should take place between them and the creditor; but the claim may be presented by letter, or in any other way which deals fairly with the executors and the interests they represent.</p> <p>The creditor is not bound to exhibit the evidences of his claim, or make oath of the justice thereof, unless required to do so by the executors.</p> <p>Tn an action against executors upon a claim which had been duly presented according to the statute, they obtained an order extending the time to plead, and after-wards pleaded the general issue, but finally suffered an inquest to be taken against them at the circuit: Held, that inasmuch as no good reason was shown on their part for doubting the justice of the claim, they were chargeable with having unreasonably resisted its payment, and that the creditor was therefore entitled to costs.</p> <p>A statement in the certificate of the judge who tried the cause that payment was unreasonably resisted by the executors, is not conclusive as to costs, but the court must look beyond it, and consider the facts certified, in connection with the other facts, relating to the question.</p>

The ' defendant, having obtained a verdict, perfected judgment for costs against the plaintiff in August, 1842.

Re-taxation of Costs. This cause was put off at the circuit on payment of costs, and the plaintiff’s bill contained the following items, which were allowed by the taxing officer: “ Notice of trial for judge, $0,25: Notice of inquest for judge, $0,25: Brief, $3,00: Copy pleadings, $3,00.”

Bounty on salt. In September, 1843, the relator shipped from Buffalo, for Toledo, Ohio, one thousand bushels of Onondaga salt, which he had brought to Buffalo by way of the Erie canal. The salt was forwarded from Toledo for the relator, and was afterwards delivered at Lafayette, upon the Wabash and Erie canal, in the state of Indiana. The relator claimed that, under the act passed on the 18th of April, 1843, (Sess.

<p>Appeal hy the board of supervisors of Oneida county, from the taxation of the bill of fees of the district attorney of that county for the year 1843. The objections were to charges lor engrossing indictments and other papers. In some cases the district attorney was unable to swear that there was any thing more than the original draft of the paper; and in other cases he swore that the most difficult parts of the indictment were first drawn, and then engrossed with the formal parts. There was no objection that the , indictments and other papers were not properly prepared for their intended use, both as to composition and hand-writing; but the objection was, that unless the paper ivas twice "written, nothing more than the draft could be charged. The taxing officer allowed the prescribed fees for engrossing as well as drawing the papers; and a motion was made on behalf of the supervisors that the bill be re-taxed.</p>

Ejectment, tried' at the Monroe circuit in December, 1842, before Dayton, C. Judge. The plaintiff proved that he acquired title to the premises in 1835, and that the defendant was in possession when this suit was commenced. The defendant set up title in himself, derived under a mortgage executed by the plaintiff to one Chittenden, bearing date in 1836.

Ejectment, tried at the Washington circuit in October, 1842, before Willard, C. Judge. The action was brought to recover a small strip of land situated in the village of Sandy Hill, being the north part of what is known as “ the old burying ground.” The plaintiff proved a paper title to the land in dispute, derived under a patent granted to James Bradshaw and others on the 18th or -.b y, 1762; the old burying ground being in lot No. 93, a part of the patent.

Ejectment, tried at the Cayuga circuit in August, 1843, before Moseley, C. Judge. The action was brought to recover an undivided share of a piece of land which the plaintiff claimed as devisee under the will of his father, Neri Rogers.

<p>Replevin, for that the defendant, on dec., at dec., received seven stoves, viz. 2 Catskill stoves, 2 dumb stoves, 1 Nott stove, and 2 salamander stoves,, with the pipes belonging to each of said seven stoves respectively ; 19 feather beds, and the bedding to each bed respectively, viz. 12 comforters, 16 pair of sheets, 38 pillows and pillow cases, 11 bolsters, 2 rose blankets, 2 quilts, 19 bedsteads, 145J yards of carpeting, 9 looking glasses, 14 yards of oil cloth, 13 tables, 2 mattrasses, 48 chairs, one lot of carpeting, 11 wash bowls, 11 pitchers, &c. [mentioning a number of additional articles of household furniture,] of great value, to wit, of the value of one thousand dollars, from one Phineas Cone, to be delivered to the plaintiff when afterwards requested; all which said goods and chattels are the same and all the goods and chattels which were received by the defendant from said Cone, to wit, at the time aforesaid, and which at the said time were in, and were the furniture of a certain public house then kept by the defendant in Market-street in the city and county of Albany, formerly known by the name of the Port Orange Hotel, and also by that of Cone’s Hotel. And' the defendant, though often requested, has not delivered the property to the plaintiff, but detains the same &c.</p> <p>To so much of the count as relates to the articles mentioned above in italics, the defendant demurred, on the ground that those articles were not sufficiently described, and because the value was not affixed to each article. As to the residue of the count, he pleaded, first, non detinel; and second, property in himself. The plaintiff joined in demurrer, and then demurred to each of the two pleas, on the ground that neither of them answered the whole declaration or count; and the defendant joined in demurrer.</p>

Trover for a quantity of whisky, tried at the Montgomery circuit in May, 1843, before Willard, C. Judge. The facts proved by the plaintiffs to establish their title to the whisky were as follows: On the 18th of February, 1842, the sheriff of Montgomery levied on five hundred bushels of grain by virtue of a fi. fa. against one Wood in favor of Eldert Tymason.

(Slat, of 1831, p. 396.) J. J. Austin made affidavit- that the relators were indebted to him in the sum of $224,84, on a judgment rendered in the Albany Mayor’s'court upon am express contract, for which demand the relators could not be arrested or imprisoned &c.; that the relators “ have rights in action, or some interest in some public or corporate stock, money, or evidences of debt, which they unjustly refuse to apply to the payment of said judgment that the deponent had…

Trover for a large quantity of merchandize, tried at the Onondaga circuit before Moseley, C. Judge. The plaintiff claimed the goods as a purchaser from one Dudley S. Haines. After the purchase, the defendant, who was then sheriff of the county of Onondaga, took the goods on an attachment issued against Haines as an absconding debtor, insisting that the sale to the plaintiff was fraudulent and void as to creditors.

<p>A debtor in failing circumstances assigned nearly all his property, in trust to sell the same and apply the proceeds towards paying four of his creditors, making no provision for the rest; and the assignment directed that the surplus, if any, after paying the four creditors, should be returned to the assignor, his heirs, <fc. Held, that the assignment was fraudulent and void on its face, the provision as to the surplus being a trust for the use of the assignor.</p> <p>The assignment cannot be aided in such case by extrinsic evidence that the assigned property would not sell for enough to pay the creditors provided for.</p> <p>If any part of an assignment be contrary to the statute for the protection of creditors against fraudulent transfers, the whole is void.</p> <p>The question whether an assignment is void on the ground of its having been made with intent to defraud creditors, is for the jury.</p> <p>But where the assignment shows on its face that it was made in trust for the use of the assignor, either in whole or in part, the court is bound to pronounce the transaction void, without submitting the question to the jury.</p>

On error from the superior court of the city of New-York, where the Butchers <fc Drovers’ Bank sued Brown as the endorser of a bill of exchange, and recovered judgment. The endorsement was made with a lead pencil, and in figures, thus, “ 1. 2. 8.,” no name being written. Evidence was given strongly tending to show that the figures were in Brown’s hand-writing, and that he meant they should bind him as endorser ; though it also appeared he could write.

Assumpsit, brought by Mary Conrad against Josiah B. Williams on promises to marry, tried before Monell, C. Judge, at the Tompkins circuit, in February, 1843. The plaintiff counted upon promises to marry on request, to marry within a reasonable time, to marry when the defendant’s health should be sufficiently restored, and to marry generally, alleging breaches. Both parties resided in the village of Ithaca, the plaintiff with her mother, who was a widow.

The plaintiff brought an action of trespass in the Ontario common pleas for breaking and entering a certain close and cutting and carrying away a quantity of wood. The cause was removed by certiorari into the supreme court, and was tried at the Ontario circuit in November, 1841, before Moseley, C. Judge. The main question was, whether the defendant had title to the locus in quo.

<p>Trover for a quantity of wheat, tried at the Livingston circuit in 1843, before Monell, C. Judge. In 1838 and 1839, the plaintiff delivered the wheat in question to the defendant, at his store in Geneseo, and took from him several receipts, most of which, except as to dates and amounts, were as follows : “ Reed, of Gurdon Nowlén two hundred bushels of good wheat in store. Geneseo, Sept. 22d, 1838. (Signed) Ch. Colt.” It appeared that 'on or about the 1st of August, 1839, all the wheat in the defendant’s store, including the wheat in question, was sent by him to H. B. Williams & Co., millers in the city of Rochester, and that they subsequently paid him for it.</p> <p>The defendant proved that the wheat in question, on being delivered at his store, was put into a common bin and mixed with other wheat which he had purchased; and that this was done with the knowledge and consent of the plaintiff. One ground of defence set up was, that by a usage or custom which prevailed throughout the district of country where the parties resided, among dealers in wheat, the defendant was authorized to.dispose of the wheat in question, without first consulting the plaintiff. The evidence on this • point, however, was conflicting, and the judge submitted the question to the jury. He charged, among other things, tha-t if the wheat of two persons is mixed together, with their knowledge and consent, and either afterwards carries away and disposes of the whole, an action of trover may be maintained against him. The jury rendered a verdict in favor of the plaintiff, and the defendant now moved for a new trial on a bill of exceptions.</p>

<p>Motion by the plaintiff to set aside a report of referees. The action was assumpsit on the following note:</p> <p>$1000.—One year from the first day of February one thousand eight hundred and forty, we promise to pay Amos Palmer, Jun., or bearer, one thousand dollars, with interest semi-annually. October 1, 1839.</p> <p> </p> <p>Palmer, Cook and Barker were highway commissioners in 1839. They made the note and delivered it to George N. Bates, with instructions to deliver it to John Frank when the commissioners should so direct. Frank was to advance money to the commissioners, and take up other notes which they had given; and when he had done so to the amount of the note in suit, it was to be delivered over to him. He soon afterwards let the commissioners have $575,46. At another tune he took up some notes of the commissioners; and altogether, he paid the full amount of the note in question. In October, 1840, Bates delivered over the note to Frank on the written order of Barker, one of the commissioners; and Frank subsequently transferred it to the plaintiff.</p> <p>When the commissioners had their accounts audited by the town board in March, 1840, they credited the town with the sum of $575,46 which had been received from Frank. So far as appeared, no further credit was ever given to the town on account of the money received from Prank. At the town audit of 1841, the commissioners for that year recognized this debt,, by reporting it at $1020, in a list of debts due from them to individuals.</p> <p>At the annual meeting in 1839, the town voted to raise $500, in addition to the $250 ordered to be raised by the commissioners. At the annual town meeting in 1840, the report which the commissioners had made to the auditing board in March of that year, together with the audit, was read to the meeting, and no objection was made. A vote was afterwards taken on a proposition to raise $1000 to meet this loan. It was opposed on the ground that the commissioners had no power to create the debt; and the proposition was rejected. The meeting afterwards voted to raise $500} but for what purpose did not appear.</p> <p>The defendants are the present commissioners of highways for the town of Granville. The referees reported against the plaintiff.</p>

Trespass, assault and battery, tried at the Clinton circuit, ha. July, 1841, before Willard, C. Judge. The evidence clearly showed that the defendant had committed an assault and battery upon the plaintiff, Eunice Cook, with intent to have carnal connection with her. The defendant proved, among other things, that he had been indicted for the same assault and battery complained of in this suit; and that, after being tried and convicted, he was fined $250, which he had paid.

Ejectment for a lot of land in Moriches, Suffolk county, tried before Rugóles, C. Judge, at the Suffolk circuit in May, 1843. The case was this: ' On the 5th of October, 1841, one Penny, who then owned the premises, sold them to the plaintiff for §1000, and gave him a deed thereof. The deed was acknowledged and delivered on that day, but had no date, and was not recorded.

The declaration was for trespass, assault and battery, and false imprisonment. The venue was laid in the city and county of New-York, and the plaintiff .alleged that the injuries were done “at Batavia, to wit, at the city and county of New-York.” The defendants demurred, on the ground that the venue should have been laid in the county of Genesee.

The Onondaga County Mutual Insurance Company brought an action of debt in the court below against Bayley and Minard, and declared against them as follows: “ For that whereas the said defendants heretofore to wit, on &c., at &c., by their certain writing obligatory sealed &c., did acknowledge themselves to be held and firmly bound unto the directors of the said Onondaga County Mutual Insurance Company, in the sum of one thousand dollars, to be paid to the said directors or…

Assumpsit, brought by the plaintiff as administratrix of John G. Smith deceased, for goods sold and delivered to the defendants by her intestate. The cause was tried at the New-York circuit in December, 1842, and the jury found a special verdict stating the following facts: On the 31st of August, 1835, the defendants made and signed the certificate required by statute to constitute them special partners under the name of David C. Argali.

Ejectment for dower, tried before Willard, C. Judge, at the Washington circuit in June, 1843. On the 7th of December, 1835, Royal Chase, being then a widower, aad seised of real estate of the value of seven or eight thousand dollars, conveyed the premises in question, which were of the value of nine hundred dollars, to his son Peter, no pecuniary consideration being paid. Royal Chase was then 65 or 70 years old.

<p>The right and interest of a pledgor cannot be sold on execution unless the goods be present and within the view of those attending the sale.</p> <p>Where the right and interest of a pledgor is levied on, the sheriff may take actual possession of the goods, and hold them until he sells.</p> <p>After the sale, however, the pledgee is entitled to the possession of the goods until the purchaser redeems them. .</p>

On error from the St. Lawrence common pleas. Hartney sued James before a justice, and declared against him as follows : “ The plaintiff declares in a special action on the case for gross and wilful negligence of the defendant in not entering the return of an execution in his docket, he being a-justice of the peace of &c., by which neglect the plaintiff was injured by being made liable as constable «fee., to his damage of fifty dollar’s.” Plea, not guilty.

The declaration contained the common counts in assumpsit, to which the second plea was, that the defendant .did not at any time within six years .next before the exhibiting of the bill of the plaintiff, undertake &c. The third plea was, that the supposed causes of action did not nor did either of them accrue within six years next before the exhibiting of the bill &c. Replications, affirming the matters denied by the pleas, but using the words the commencement of the suit,…

Cady, was indicted for forgery. He was attorney of record for the plaintiff in an action of replevin, in the progress of which, a rule for judgment of discontinuance, and for a writ of inquiry to assess the defendant’s damages, was duly entered. The defendant’s attorney gave notice that he would execute a writ of inquiry on “ the 26th of October”, 1842, which notice was regularly served upon Cady on the 11th of the same month.

<p>Where the payee of a usurious note endorsed it to a third person, for a valuable consideration, who took it without notice of the usury, and afterwards brought an action against the payee, seeking to charge him as endorser; held, that the endorsement amounted to a new and independent contract between the parties, and that the usury was no defence.</p>

Dunning & Browning sued Hancox and others in the court below, in debt on bond. The plaintiffs had attached the steamboat Napoleon, in the city and port of New-York, and the defendants gave the bond to obtain the discharge of the vessel, with a condition to pay the claims which had been exhibited, and which should be established to1 have been subsisting liens at the time they were exhibited.

case was this : On the 27th of March, 1841, Bowne applied to a justice of the peace of the county of Delaware, for an attachment against Mellor, on the ground that he was about to depart from the county with intent to defraud his creditors.

Trover for two turning lathes and four iron kettles, tried at the Montgomery circuit in 1843, before Will aró, C. Judge. The property in question was originally owned by the plaintiff and one Marcellus, who were copartners in manufacturing iron ’ castings, and carried on the business at a furnace in Amsterdam. They occupied the furnace from the 1st of June, 1837, to the 1st of Juné, 1840, under a parol lease from Timothy Livingston.

<p>Where the plaintiffs in ejectment sue as a corporation created by or under a statute of this state, though the only plea interposed be the general issue, they are bound to prove the existence of such corporation, notwithstanding the provision in 2 if. S. 548, § 3.</p> <p>The above provision has no application to actions in which the plea of nul tiel corporation cannot be pleaded. Per Beardsley, X</p> <p>The act passed on the 8th of April, 1796, entitled “ An act relative to the common and undivided lands and meadows in Southold” &c., (3 Greenl. Laws of N. Y. 330,) does not give the proprietors of those lands the right of suing as a corporation.</p>

Debt on recognizance, tried before Cushman, C. Judge, at the Columbia circuit, in March, 1843. On the trial, the district attorney produced the minutes of the court of general sessions of Columbia county for September term, 1841, in which was an entry as follows: “ The People v. Ambrose F. Woolsey.

On error from the recorder’s court of the city of Buffalo. White sued Hinsdale before a justice of the peace on the 30th of March, 1843, and claimed to recover for rent due on a lease. It appeared at the trial that the plaintiff executed a lease to the defendant of a house in the city of Buffalo, for one year from the 1st of May, 1842, reserving a rent of $135, payable quarterly, together with a right of re-entry for non-payment.

Wilson and others brought 'an action of replevin against Stevens in the court below, for a quantity of feathers. The plaintiffs were merchants, doing business at Louisville, Kentucky; and the defendant was a commission merchant in the city of New-York. Charles Colgate was also a commission merchant in the city of New-York, and was the factor of the plaintiffs. In the fall of 1840, the plaintiffs sent Colgate a large quantity of feathers to be sold.

<p>The bridges erected pursuant to the fourth section of the act passed April 5th, 1823, authorizing the construction of a basin in the city of Albany, (Sess, L. of ’23, p. 128,) are to be kept in repair by the persons owning lots on the pier, who are punishable by indictment for omitting to repair. ■</p>

Slander, tried before Cushman, C. Judge, at the Columbia circuit, in March, 1843. The declaration contained three counts. After the plaintiff had proved slanderous words spoken at three different times, she was allowed to prove slanderous words spoken at other times, some of which were not laid in the declaration. The words were all spoken within two years.

P., where Petrie sued Crain in an action on the case for deceit in the sale of sheep. Petrie carried on the butchering business in the neighborhood of Little Falls, and purchased the sheep of Crain in November, 1840, at the price of one dollar per head, for the purpose of killing them for market. They were driven to Petrie’s, put in a yard by themselves, separate from his other sheep, and slaughtered the next day.

Ejectment for certain lands in Gouverneür, St. Lawrence county. The action was tried at the St. Lawrence circuit in July, 1843, before Willard, C. Judge. The plaintiff claimed as a purchaser under a judgment and execution against the defendant, who had been in possession of the land for many years. As to twenty-two acres of the land, it appeared that the defendant was in possession under a contract for the purchase of the same from one Morris, which was made in 1827.

<p>Debt on a joint and several bond executed to the plaintiff by N. G. Jewett and J. S. Smith, together with. the defendants, in the penal sum of $8500, bearing date the 18th of June, 1840. The bond was conditioned as follows : “ Whereas 'the above bounden N. G. Jewett and J. S. Smith have purchased the grant of the ‘Shelby College Lottery’ from the managers of the said lottery, authorized by an act of the general assembly of the commonwealth of Kentucky, entitled ‘An act for the benefit of Shelby College,’ approved February the 16th, 1837, and the said N. G. Jewett and J. S. Smith intend not to have any prizes in the drawings of said lottery greater than the sum of ten thousand dollars: Now -if the said Jewett and Smith shall, within ninety days after any of the drawings of said lottery, pay or cause to be paid to the fortunate person or persons holding a ticket or tickets thereof, all such prizes as may be drawn by any individual or individuals agreeably to any such drawings, and shall furthermore not reserve more than twenty per cent, upon any such prize so drawn,- and shall not increase the capital prize in any such drawings beyond the said sum of ten thousand dollars, without first executing a new bond, with good security, in such penalty as may be sufficient to secure the payment of such increased prize, and in all things conform to and well and faithfully comply with all the terms and conditions of said recited act, then this obligation to be void” dec. The declaration, after setting forth the substance of the bond, together with the condition, averred that on the 16th of February, 1837, a public statute was passed by the general assembly of the commonwealth of Kentucky, entitled an “ Act for the benefit of Shelby College,” which authorized the establishment of the lottery mentioned in the condition of the bond, and provided that the managers might sell and dispose of -the scheme, or any class or classes dec., to any person or persons who should enter into a bond, with good security, conditioned well and faithfully to comply with all the terms and conditions of the act, dec.; the bond to be filed in the Shelby county court before said lottery or any class or classes thereof should be drawn &o. It was further averred in the declaration, among other things, that N. G. Jewett and J. S. Smith, “ heretofore to wit, on the 18th day of June, 1840, at Louisville in the county of Shelby and state of Kentucky, purchased of the said managers, for and in consideration &c., the grant or scheme of said ‘ Shelby College Lottery,’ and did thereupon, together with the said defendants, enter into the said bond aforesaid set forth;” that “under and by virtue of said act, a drawing of said lottery was had, heretofore to wit, on the 9th of December, 1841, at the city of Louisville in the state of Kentucky, in pursuance of a published scheme of said lottery &c.; that one Rufus Ford, a citizen of Kentucky, drew a ticket entitling him to the sum of $1000, subject to a deduction of fifteen per cent. &c.;” and that “ although more than ninety days elapsed since the time of the drawing, and although often requested so to do, yet the said N. G. Jewett and J. S. Smith have not, nor hath either of them paid or caused to be paid the said prize of $1000, &c., but the said Jewett and Smith and the said defendants have hitherto wholly neglected and refused” &c.</p> <p>The defendants demurred to the declaration, and the plaintiff joined in demurrer.</p>

Assumpsit, tried at the Otsego circuit in April, 1843, before Willard, 0. Judge. Held: at which the plaintiff presided as moderator, and Timothy Sabin acted as clerk. The meeting resolved to tender the plaintiff “ a call” to become the pastor of that church, and he was deputed to draw up the call in due form, which he afterwards did.

P., where Jesse Lounsbury brought replevin against Reynolds, and declared for that the defendant, on &c., at &c., took one light bay mare of him the said plaintiff &c. When the cause came on to be tried and the jurors were called, the defendant objected that the issue was immaterial and the court had no authority to try the cause, because it was not alleged in the declaration that the defendant wrongfully took the property, as the statute requires.

Ehle and Sart sued Quackenboss in a justice’s court, and declared in trespass, for that the defendant, on the 1st of June, 1841, and on divers other days «fee., by his cattle, horses, <fcc. broke and entered the plaintiffs’ close, «fe9. The defendant pleaded the general issue, and gave notice that he would prove in defence of the action that he was the occupant of the locus in quo, under license from the owner, and that his cattle «fee. were lawfully depasturing thereon.

<p>This case was before the court in January, 1843, and is reported in 4 Hill, 200. On a second trial it appeared that the castings were delivered to Johnson on the 22d of May, 1839, and on that day Johnson gave the plaintiff his promissory note for the amount, payable seven months from date. The plaintiff said he took the note because he considered Johnson good. It was proved that the defendant afterwards had Johnson’s books in his hands, and remarked that the plaintiff’s demand must be paid from the accounts; but he said nothing about his being holden to the plaintiff. The defendant delivered the accounts to one Topliff, and told him to collect and pay over the money to the plaintiff. Topliff collected five or six dollars, and offered the money to the plaintiff, which he refused to receive. The defendant moved for a nonsuit, on the ground, among others, ' that there had not been a compliance with the terms of the guaranty, by which the plaintiff was to wait until the 1st of January, 1840; and he took Johnson’s note payable on the 22d of December preceding, or, with grace, on the 25th. The action was not commenced until after the 1st of January, 1840: and it did not appear that the plaintiff had ever called upon Johnson. The judge refused the motion for a nonsuit, saying, he supposed all the questions had been examined when the case was before this court on the former occasion. The defendant excepted, and a verdict having been found against him, he now^ moved for a new trial on a bill of exceptions.</p>

Motion by the plaintiffs to set aside the report of a referee. The defendant, who resided at Avon, addressed a letter of guaranty to the plaintiffs, who were merchants at Rochester, in the following words: “ Avon, October 10, 1840. Messrs. E. F. Smith & Co. Gentlemen: If you will let Messrs. Steel & Wall, of this village, grocers and bakers, have one hundred dollars in goods at your store on a credit of three months, you may regard me as guarantying the payment.

Trover for a quantity of saw-logs, tried at the Erie circuit in December, 1842, before Dayton, C. Judge. The logs in question were cut on and taken from a tract of land called the Cattaraugus Reservation, lying partly in the counties of Erie, Chautauque and Cattaraugus.

Case against the defendant, sheriff of Genesee, for neglecting to return a ji. fa., tried at the Cayuga circuit in August, 1843, before Moseley, C. Judge. Held: however, that as the case then stood the plaintiff was prima facie entitled to a verdict for the full amount of the ft. fa. The defendant then proved that all the personal property of the persons against whom the Ji. fa. issued had been exhausted by older executions.

<p>An averment that a court of another state had power to revoke letters of administration granted in this, and did so revoke them, is one which the law pronounces false.</p> <p>A foreign administrator cannot sue in the courts of this state ; nor can he interfere with a suit commenced here by a domestic administrator.</p> <p>Simple contract debts are lona notabilia in the state where the debtor resides, and an administrator appointed in another state cannot release or control them.</p>

Motion to set aside the report of a referee. The action was for goods sold to Cyrus Creal, and the plaintiffs sought to charge the defendants John and John W. Creal, as partners with Cyrus.

Replevin, tried before Gridley, C. Judge, in June, 1843, at the Oswego circuit. Upon the facts proved and offered to be proved, the case was this: The defendant was a deputy of the sheriff of Oswego county, and on the 8th of January, 1840, a fieri facias, returnable that month, was delivered to him on a judgment in this, court in favor of Philander Rathbun against Christian I. Burkle, for $632,85.

Assumpsit, tried before Cushman, C. Judge, at the Albany circuit, in April, 1843. The declaration contained the money counts, and the case proved was as follows: In March, 1839, the plaintiffs, by a committee of three individuals, received subscriptions to the capital stock of their bank. The shares were $100 each, of which five per cent, was required to be paid upon subscribing.

<p>Where a stockholder of a bank sues for a violation of the 1st section of the statute “ to prevent the insolvency of moneyed corporations,” &c. (1 R. iS. 589 et seg.,) he need not join all the directors who participated in the act charged, but may proceed against them separately.</p> <p>In a suit against one of the directors, if the act charged be such that it could not have been done by him alone, but only by the board, the declaration must show that they participated in it.</p> <p>The statute incorporating the bank of which the defendant is a director, though private, need not be set out in the declaration.</p> <p>If the suit be by a stockholder, and the declaration, after setting forth the act complained of, allege that by reason thereof the plaintiff’s stock became depreciated in value, this is a sufficient averment of loss to entitle the plaintiff to sue, . without otherwise explaining how the loss occurred.</p> <p>A stockholder may sue for making a dividend out of the capital stock, instead of the surplus profits, though he has received a share of the dividend, provided he did so without knowledge of the facts rendering it illegal.</p> <p>A count charging the making of such dividend does not necessarily import that all the stockholders, including the plaintiff, received their shares.</p> <p>The act complained of on the part of the directors should be alleged to have been done by them ; an allegation that they caused and procured it to be done, or that they authorized and permitted the cashier to do it, will not answer.</p> <p>An allegation that the directors did the act will be sustained by evidence that they caused and procured it to be done. Per Bronson, J.</p> <p>The declaration need not expressly show that the directors concerned in the act knew the facts rendering it illegal.</p> <p>The directors are not liable for merely receiving notes or other evidences of debt, with the illegal intent mentioned in 1 R. S. 589, § 1, subd. 4, but only for receiving and discounting them with that intent.</p> <p>A count charging the illegal receiving and discounting of notes at various times during a specified period, contrary to the 4th subdivision of the 1st section, is not bad for duplicity.</p> <p>Nor is such count bad for omitting to describe the several notes thus received and discounted.</p> <p>Where it is alleged that the directors “ did divide, withdraw and pay to the stockholders a portion of the capital stock,” the count is not bad for duplicity though it add that thereby the capital stock was reduced without the consent of the legislature. -</p> <p>A count, however, charging the directors with all the acts prohibited by 1 JR. S. 589, § 1, is bad for duplicity.</p> <p>If the charge be that the directors received shares of the capital stock of another corporation, in exchange for the notes of their own bank, the count will be bad unless jt show in addition that the exchange was made on account of the bank.</p>

On demurrer to pléa. The declaration was upon a promissory note for $208,31, dated the 2d of October, 1834, made by Charles Brady, the defendants’ testator, and payable to the plaintiff.

Assumpsit, tried at the New-York circuit in March, 1843, before Kent, C. Judge. The action was brought against Lawrence S. Forman, Parmenus Johnson and James M. Miller, on a promissory, note alleged to have been made by them as partners, and signed James M. Miller <fc Co. The note bore date on the 26th of March, 1842, and was payable in six months.

Action on the case, tried at the New-York circuit in Hay, 1843, before Kent, C. Judge. The declaration contained counts against the defendant as a common carrier of passengers and goods on the Hudson river, and complained of the loss of the plaintiff’s trunk and its contents. There was also a count in trover.

<p>Error to the superior court of the city of New-York. Lester sued Redmond in the marine court of the city of New-York, in April, 1842, and declared on a judgment which he had recovered against the defendant in that court for $66,72 damages and costs bn the 25th of January, 1832. The defence was the statute of limitations, (2 M. S. 295, § 18;) hut the court overruled the defence and gave judgment for the plaintiff, on the ground that the marine court was a court of record, and that therefore the statute did not apply to the case. On certiorari by the defendant, the superior court reversed the judgment, and the plaintiff brought error.</p>

Maxwell, an infant, sued Brown in the justices’ court of the city of Troy, and “ declared verbally in trespass on the case for an injury in breaking the leg of the plaintiff by the negligence or carelessness of the defendant’s hands while in the employ of the defendant.” Brown pleaded the general issue, and judgment was rendered in favor of Maxwell for fifty dollars damages, besides costs; whereupon Brown appealed to the mayor’s court.

Assumpsit, tried before Kent, C. Judge, at the New-York circuit in November, 1843. The action was on a promissory note for $101,09, signed “ Hunt & Randolph,” dated May 31st, 1836, and payable to the plaintiff six months after date. The note was in the hand-writing of Randolph. The parties all resided in the city of New-York. The defendants had been partners in business under the name of Hunt & Randolph.

Trespass quare domwm, fregit, tried before Monell, C. Judge, at the Chenango circuit in January, 1843. The case was this: The defendant was a deputy sheriff, and had a fieri facias against the plaintiff, at the suit of one Carley, for $1709,83.

<p>Ejectment, tried at the New-York circuit in September, 1843, before Kent, C. Judge. The premises in question consisted of a lot in the twelfth ward of the city of New-York, to which the plaintiffs claimed title as devisees under the will of Medcef Eden junior. The defendant claimed under a sheriff’s sale of the premises made during the life time of Medcef Eden junior, by virtue of several executions against him. The facts of the case, which were presented in the form of a special verdict, are sufficiently stated in the opinion of the court.</p>

Declaration on a bond dated in May, 1841, conditioned to pay $7144, with interest, in two years.

On error from the Montgomery common pleas. Lettice sued Van Slyke in a justice’s court, and declared in debt on a judgment in favor of the former against the latter. After issue joined, the cause was tried, and judgment rendered against Van Slyck, who appealed to the common pleas, where the following facts were proved : The judgment declared on was recovered before one ^Vessels, in April, 1842, and was for over $25.

Replevin in the detinet, tried at the Greene circuit in November, 1841, before Cushman, C. Judge. The plaintiff sought to recover a promissory note for $130,13, made by Kennedy & Sylvester on the 22d of December, 1840, payable to the intestate or order thirty days after date. Plea non detinet. The case was this: The intestate died about the first of May, 1841, the note then being in his possession, and not having been endorsed.

On error from the mayor’s court of the city of Albany. The Watervliet Turnpike Company brought an action of debt against the defendant M’Kean, in the justices’ court of the city of Albany, claiming to recover a penalty of five dollars for passing round a gate on their road, to avoid the payment of toll, contrary to 1 JR. S. 588, § 55.

On error from the Dutchess common pleas. Jones sued Thompson before a justice of the peace, and on the joining of issue the defendant demurred to the declaration for a misjoinder of counts, and the plaintiff joined in demurrer. The justice overruled the demurrer, and the defendant thereupon pleaded the general issue.

The plaintiff declared in replevin for taking three engine lathes, and some other articles, on the 10th of August, 1843, from certain premises in the city of Rochester. Avowry and cognizance by the defendants respectively, that the taking was by virtue of a distress warrant, for rent due the defendant Selye, from one Kenyon, to whom the premises were demised.

The defendants were sued as stockholders of the Rossie Galena Company, for a debt which the company owed the plaintiff, he having recovered a judgment against the company, on which execution had been issued and returned unsatisfied. (See charter, Stat. of 1837, p. 445, §§ 9, 10.) The cause was tried in July, 1843, before Willárd, C. Judge, at the St. Lawrence circuit. The plaintiff’s demand was a note made by the company for $52,77, dated January 16th, 1840.

<p>Bail in error remain liable, though the principal become bankrupt, and obtain his discharge pending the writ. Per Nelson, Ch. J.</p> <p>So of bail to the action, provided the discharge be granted after they have become fixed; though otherwise if granted before. Per Nelson, Ch. J.</p> <p>Where, on appeal from a justice’s judgment, the appellee recovered, and the appel- ■ lant was afterwards discharged under the bankrupt act; held, that the liability of the surety in the appeal bond was not thereby affected.</p>

On error from the Columbia common pleas. In January, 1843, Hannah sued Yager before “ The justices’ court in the city of Hudson” by summons requiring the defendant to appear and answer the plaintiff “ in a plea of trespass on the case to his damage of one hundred dollars.” .

Ejectment, commenced on the 25th of January, 1841, and tried at the Oswego circuit in June, 1843, before Gridley, 0. Judge. The declaration contained six counts, the third of which alleged that the two plaintiffs, John D. and Matthew D. Coe, owned jointly an undivided half of the premises; and the fifth count alleged that they owned jointly an undivided third.

A summons was issued by a justice in favor of Raymond, against Leggett and Abram Yiele. The summons was served only upon Leggett, who alone appeared. The plaintiff declared on a note and guaranty as follows: “Jan. 15, 1842. Six months after date, for value rec’d, I promise to pay Peleg H. Leggett or bearer twenty-two dollars and fifty cents with interest until paid. Abram Yiele.” The guaranty was written on the back of the note, and was in these words: “ January 29, 1842.

Trover for household furniture and othér property, tried before Ruggles, C. Judge, at the Orange circuit in September, 1843. The defendant was the widow of Jesse Scofield, who died on the 1st of January, 1843, and the plaintiffs were his children. David was seventeen years of age, and Harriet thir- • teen or fourteen. The defendant was their step-mother.

On error from the Monroe common pleas. Marchant sued Langworthy, Hall and Olmsted, before a justice of the peace, and declared in trover for a horse. The defendants pleaded the general issue, and the justice rendered judgment in favor of the plaintiff for forty dollars damages, from which the defendant appealed to the common pleas.

Assumpsit upon the implied undertaking of the defendants to demand payment and give the necessary notice to charge the endorsers on a promissory note left with them by the plaintiff for collection. The cause was tried before Gridley, C. Judge, at the Oneida circuit in April, 1843.