Volume 6 — Johnson's New York Reports

<p>THIS was an action of assumpsit. The declaration was of the term of February, 1809. It stated, that the act of the 4th April, 1801, did, by the 13th section thereof, (Laws, vol. 2. n , , „r . , _________, v__....., 153*) declare, that it the defendants should require the ground of any person fór streets, &c. they should give him notice, and treat with him for the same; and if he shall refuse to treat, the mayor, or recorder, and two aldermen should, by precept, summon a jury for the mayor’s court, to inquire and assess the damages and recompense due to the &c. and give notice, at the same time, to the owner, to attend, &c. and the jury are required to be sworn, and, having viewed the premises, if necessary, to assess the damages ; and the verdict of such jury, and the judgment of the court thereon, and the payment of the sum assessed, or a tender thereof, shall be binding against the owner, &c. and the defendants may convert the property, &c. And that, by the 22d section of the said act, (Laws, vol. 2. p. 158.) it was further declared, that after such damages should be ascertained, in manner aforesaid, the amount should be paid by the defendants, to the person entitled thereto, with interest, on demand. The plaintiff then averred, that the defend- , ants did, on the 4th day of October, 1808, deem it necessary, in order to widen Lydeus street, to take a piece of ground belonging to the plaintiff, bounded, &c. and that after notice, and refusal to treat for the same, a process was issued,- pursuant to the statute, to summon a jury, dated 4th October, 1808, to appear in the mayor’s court, on the first Tuesday of November, 1808, to assess the damages and recompense due to the plaintiff; that the said jury were impanelled and returned, and did, on that day, duly assess the damages to the plaintiff for the said land, to 815 dollars, which assessment was, by the said court, fully confirmed; whereupon the defendants became liable to pay that sum, together with interest, when thereunto requested, and being so liable, they assumed, &c.</p> <p>There were two other counts, more general, but to the same effect.</p> <p>The defendants pleaded, to the first count, no such record of assessment and judgment, and to the other counts, non assumpsit.</p> <p>The plaintiff replied to the first plea, that there is such a record of assessment and judgment, remaining in the mayor’s court, and this he is ready to verify by the record, &c. On the trial, by record, at the last November term, the following evidence was given to the court.</p> <p>1. The precept of the mayor and two aldermen, for the jury, dated 4th October, 1808.</p> <p>2. The assessment of the jury, after a view of the premises, specified in the precept, at 815 dollars.</p> <p>3. A rule for judgment, that the same be confirmed, and judgment thereon; all which appeared by the record of the proceedings in the mayor’s court, on the first of November, 1808, held before the recorder.</p> <p>4. Record of proceedings at a mayor’s court, held before the recorder, the 7th March, 1809, in which the court say; it appearing to the court, that the common council did, on the 14th March, 1808, resolve that hydeus street should be widened, and that certain ground therein specified should be taken for the purpose ; and it further appearing, that the venire, issued as aforesaid, for the purpose of assessing the damages, did describe the ground, as therein specifiedand it also appearing to the court, that the said venire was inconsistent with itself, in the description of the land, and that it departed from the requisitions of the common council, in comprehending, in some parts, more, and in some parts less ground, than was required by the resolution of the council; thereupon ordered, that the said venire, and all proceedings subsequent thereto, be set aside.</p> <p>5. The affidavit of Ebenezer Smith, stating that he was one of the jury who made the valuation; that at the time of the view, the plaintiff informed the jury and the attorney for the defendants, that the quantity of land described in the venire would not be sufficient to form a straight line ¡ that the city surveyor, since the assignment, directed where to set a building for the plaintiff, and in doing so, he left the whole of the land taken by the defendants, from the plaintiff, in Lydeus street;</p> <p>6. The affidavit of E. Foote, stating that this suit was commenced on the 30th December, 1808, which was prior to the application to set aside the proceedings in the mayor’s court.</p> <p>7. The affidavit of William Fryer, stating that about the 14th of November last, a petition was presented to the defendants, by William M. Diamond, representing, that according to the said assessment, the north side of Lydeus street would not be straight ,• that a survey was then made of that part of the street, and the map, according to which the assessment was made, was found to be incorrect.</p>

<p>IN error, on certiorari. Vernoy brought an action of trespass against Heermance, in the court below, and declared,that the defendant, on the20th January, 1808, at, &c. with force and arms, broke and entered the close of the plaintiff, and broke down a bark-mill of the plaintiff’s, and broke loose a millstone fastened to the freehold in the said mill, and took, and carried it away, together with the iron bands, and bolts wherewith the' same had been fastened in the mill to the freehold, and trod down the soil, and 30 sticks of timber and wood of the said mill, took and carried away, &c.</p> <p>The defendant pleaded not guilty. The cause was tried by a jury, at the request of the defendant below. The plaintiff, Vernoy, proved that the defendant entered and broke loose the millstone from the bark-mill, which was fixed and fastened to an axis, in the usual manner, with iron bolts and bands, and carried it away, with the iron fastenings.</p> <p>The defendant offered a witness to prove, that he (the witness) and others had sold the premises to the plaintiff, and had verbally excepted the tanning mill, and had since sold it to the defendant. The plaintiff objected, the witness was interested, as he had given the plaintiff a bond of indemnity, that a certain minor, having an undivided interest in the premises, should, when of age, ratify the sale, and release to the plaintiff all his interest, for the consideration paid by the plaintiff to the witness. The facts, as to the interest, being admitted, the judge rejected the witness.</p> <p>Another witness was then offered, to prove the same facts. He was objected to as being one of the persons who had executed the deed of the premises to the plaintiff, and this being admitted, he was also rejected, as his evidence was inadmissible.</p> <p>The defendant having no other evidence to offer, the jury found a verdict for the plaintiff for 18 dollars.</p>

THIS was an action of trover, brought for the recovery of a quantity of timber, belonging to the plaintiff, converted by the defendant, at the city of Quebec, in… Held: and the cause was entered in the city of Quebec; that the parties- both attended, and Jenner told him the trial was adjourned. The plaintiff contended, that there was not sufficient proof that the raft had been attached; that it was necessary that the record of the proceedings should be produced in evidence.

THIS was an action of debt, on an arbitration bond, conditioned to abide and perform the award of three arbitrators named, or any two of them, to be made in writing, under their hands and seals, ready to be delivered to the parties in difference, on or before the 20th December, 1808.

THIS was an action of ejectment for land, being part of lot No. 21. in Hosick patent. The cause was tried at the Rensselaer circuit, in September, 1809. It was admitted, that the title to the premises was in the lessors, and that the plaintiff must recover, unless those under whom he claimed had done some act- by which he was concluded.

THIS was an action of ejectment for 50 acres of land, in Cambridge, being part of lot No. 3. in the second survey of lot No. 77. in the patent to Colden and others. The cause was tried at the Washington circuit, in June, 1809, before Mr. Chief Justice Kent.

THIS was an action of debt, against the defendant,- • as coroner, for the escape of Clark Lazvrence, late sheriff of Delaware. A verdict was taken for the plaintiff, subject to the opinion of the court.

THIS was an action for a libel. The venue was laid e m the county of Washington, and the libel was charged ta have been published on the 16th April, 1807, at Salem, in the county of Washington. The declaration contain-three counts. The defendant pleaded not guilty, and jssue was joined, as of November term, 1807.

THIS iras an action of ejectment, for lands in Kings-bury, in Washington county. The cause was tried at the Washington circuit, in June, 1809, before the. chief justice.

THIS was an action for breach of covenant. The declaration stated, that the defendants, on the 21st May, 1808, at Catskill, by their covenant, promised, jointly and severally, to pay to the plaintiff, or order, 90 days after- date, 198 dollars and 73 cents, with interest. The defendants pleaded, 1. Nonest factum; 2.

THIS, was an action of assumpsit, on a promissory note for 300 dollars, dated 30th October, ISO/, made by the defendant, payable to the plaintiff, on demand.

IN error, on certiorari. The return stated, that Rattoone sued Lansing, under the statute for regulating distresses, and the recovery of rents, (ll sess. c. 36.) in a special action on the case, for collecting and recovering more rent than was due.

THIS was an action of trover. At the trial, the plaintiff proved that he was the owner of a certain horse, which he left in the care of one Tyler; that lie sent a person to demand him of the defendant, who had him in possession; but the defendant being absent from home, the demand was made of the defendant’s wife, and his servant, who .refused to deliver the horse.

THIS was an action of assumpsit, for goods sold and „ ... . r „ delivered. Plea non assumpsit with notice ol set-oft. There were mutual accounts between the parties, consisting of various items, on which there was a balance due to the plaintiff: but there was no account stated, or balance r ’ struck. The only question was. whether the plaintiff was J * r entitled to interest.

THIS was an action, for the use and occupation of SO. acres of land, in Kingsbury. The cause was tried at the Washington circuit, in June, 1809, before Mr. Ch. J. Kent.

THIS was an action for a breach of covenant. The declaration stated, that the defendant, on the 8th No•oember, 1791, at Troy, by his deed, -sold and delivered to the plaintiff, a negro female slave, named Nanny, aged about 18 years, for the consideration of 40 pounds, ° J 7 r 7 paid by the plaintiff to the defendant, to have and to hold the said slave to the plaintiff, and his executors for ever ; and that he, the defendant, “ the sale of the said slave to the plaintiff, his…

<p>THIS was an action of debt, for an escape. The cause was tried at the Rensselqer circuit, in 1809, before Mr. Justice Van Ness. • J</p> <p>At the trial, the plaintiffs produced the record of a 1 judgment against one Arnold, and the ca. sa. issued thereon, with the return thereon, by the defendant, of cepi corpus in custodia. •</p> <p>The defendant admitted that Arnold, after he was in custody, and before the commencement of the suit, went beyond the liberties of the gaol; but relied on the defence, that one Daniel Wilcox, the agent of the plaintiff, consented to the escape of Arnold, and was authorized to give such consent.</p> <p>It was proved, that Wilcox had the management of some part of the unsettled accounts of the plaintiffs, who were merchants at. Hosick, where Arnold livedbut the plaintiffs had removed into Oneida county. Wilcox procured the issuing of the writ against Arnold; and Jeremiah Osborn was the attorney for the plaintiff on record.'</p> <p>A witness for the defendant testified, that at a conversation between Crary, one of the plaintiffs, and Harper Rogers5 who was bail for Arnold, for the liberties of the gaol, Crary said he was informed of the judgment against Arnold, by a letter from Wilcox; and that Wilcox had done the best to collect his debts of any person he had employed.</p> <p>It was also proved, that in a conversation between Arnold and Wilcox, before the escape, Wilcox told Arnold that he might go home, if he would give security j that at another time Wilcox and Arnold talked about a compromise, and Arnold gave Wilcox some obligations, or notes, and said if he could go home he would obtain more; and Wilcox told him, that if he went home no advantage should be taken of his bail, and that he might go home ; and Arnold afterwards left the liberties, and went home.</p> <p>David Wilcox, who was called as a witness for the plaintiff, testified, that he was never an agent for the plaintiffs, but only of Crary, who gave him a power of attorney, which was confined to the collection of debts, injustices’ courts ; that he never did any acts as agent for the plaintiffs; that by the desire of Crary, he requested-the attorney to issue the writ against Arnold; that he met Arnold in Troy, who told him that he was going home, and that he would have gone, if the witness had not met him.</p> <p>Further evidence was also offered by the defendant of the acts of Wilcox, in order to show his agency for the plaintiffs.</p> <p>The judge charged the jury, that the plaintiff was entitled to recover; that admitting Wilcox was the agent for the plaintiffs, he had no authority to discharge Arnold from custody, without receiving the amount of the judgment, or security; that three of the witnesses proved an escape before the alleged compromise, though after the license, as stated by another witness ; that the plaintiff, on this evidence, would be entitled to recover; that if Wilcox had been guilty of any fraud in procuring the escape of Arnold, it could not affect the right of the plaintiffs to recover, unless they were privy to the fraud, of which there was no evidence. The jury, accordingly, found a verdict for the plaintiffs.</p> <p>A motion was made for a new trial, for the misdirection of the judge.</p>

THIS was an action of ejectment. The lessors of the plaintiff claimed title to the premises in question, by virtue of the last will and testament of Mathys Blanshan, . dated, 21st April, 1770; by which the testator, after giv- . - ... • „ mg some legacies, disposes or his real and personal estate r n 3-S lOllOWS : “ -*■ S^ve and bequeath to my six shildren, Johannis, Jacob, Matthew, Anna, Cathariene, and Brachie, and to their heirs and assigns, for ever, all the remainder of…

THIS was an action of ejectment. A verdict was taken for the plaintiff, subject to the opinion of the court, upon the following case, with liberty to either party to turn the same into a special verdict. Johannis Van Der Hoyden, deceased, was seised in J ... fee of the premises in question, and on the 12th of - . •nit .

IN error, on certiorari. Olmstead sued Raymond,, before the justice, by warrant, and declared against him, as a constable, for the escape of David C. Mlnstry, whom he had arrested on a warrant, in favour of the plaintiff.

THIS was an action of trespass quare clausum Jr egit. The declaration stated, that the defendant, on the 10th January, 1809, broke and entered the close of the subscriber, in, &c. and trod down his grass; and also, on the 25th December, 1807, broke and entered another close, in the same town, and trod down the grass, and carried away the timber; and also, on the 25th June, 1807, broke and entered another close, in the same town, and destroyed the grass; and that this last…

THIS was an action of covenant. The declaration . Stated, that on the 11th August, 1806, Josiah Fuller was indebted to the plaintiff in 102 dollars and 29 cents, on the settlement of accounts, with interest to 13 dollars ; and in four notes, all amounting to 88 dollars and 25 cents principal, and 14 dollars and 87 cents interest; also, on an unliquidated account, amounting to 68 dollars and . - 6 cents ; also on a receipt for moneys of Charles Seldon IF Co. for Í25 dollars…

THIS was an action for a libel. The cause was tried at the Delaware circuit, in September, 1809, before Mr. Justice 'Thompson. The trial lasted till late in the evening, and after the charge of the judge, the parties consented that the jury might seal tip theij* verdict. At the opening of the court, on the next day, the jury appeared, and the foreman delivered the sealed verdict, which was opened and read, by which the jury found for the plaintiff for 150 dollars, damages.

THIS was an action of assumpsit. The declaration contained two special counts, besides the general counts. 1. That the defendants, on the 30th November, 1807, were common carriers of goods, for profit, from Schodack to the city of New-York, and from New-York to Schodack, by water, in the sloop Caty Maria, and for a reward.

THIS was an action of ejectment, for a house and lot in Kingston. A verdict was taken for the plaintiff, subject to the opinion of the court, on the following William Ellsworth, the father of the plaintiff, was 7 J 7 seised in fee of the premises in possession of the de- \ fendant, and died seised, on the 20th October^ 1799^ leaving the lessor, his only child, and heir at law.

THIS was an action of slander. At the trial, the jury found a verdict for the plaintiff, on the third count, in the declaration, which is as follows: “ And the said James, of his further malice against the said Thomas, afterwards, to wit, on the same day and year aforesaid, at Stamford, in the county aforesaid, and at divers other days and times, both before and afterwards, and while _ the said Thomas was, then and there, giving testimony, in a court of the people of the…

IN error on certiorari. Mansfield sued Bisbee, before a justice in the town of Watervliet, in the county of Albany, for the penalty of 5 dollars, given by the statute, (24 sess. c. 86. s. 19.) for obstructing the public highway, on the Consaulus road, and which had been used and occupied as such for 40 years.

THIS was a special action of assumpsit, brought against the defendants, as survivors of Benjamin Myer, ^ jun. and John Fan Leuden, deceased, who, together with the defendants, were, on the 2d day of July, 1793, the elders and deacons of the Kaatsbaan congregation of the Low Dutch reformed church, in the town of Kintrston, in Ulster county.

THIS was an action on the case, brought against the defendants, under the acts of the legislature, passed the lst April, 1800, and the 20th March, 1804, to recover t^ie va^ue °f a horse, killed by the fall of a bridge, on the road of the defendants, ■ The cause was tried, at the Green circuit, in Decembery 1809, before Mr. Justice Van Ness.

IN error, on .certiorari, from the general sessions of pn£ peace Qf J)iichess county. The justices of the peace Qf the town of Armenia, made an order for the removal of a female pauper and her infant children to the town of Stanford, as the place of their last legal settlement. The overseers of the poor of Stanford appealed from the order to th¿ next general sessions of the peace of Duchess county, held at Poughkeepsie, in October, 1809.

THIS was an action for a breach of covenant. The . declaration stated, that by an agreement, made the 7th March, 1807, between the parties, the plaintiffs, as attorneys to Simon Laurentius, in consideration of 3,130 dollars, to be paid by the defendant, to the plaintiffs, as follows, viz. 1,565 dollars on or before the first of May „ J next ensuing, and the residue to be secured by bond and . , . , r , mortgage, payable m two annual payments, from the 1st of May, agreed to…

SILL, for the defendant, moved to set aside the ca. sa. issued in this cause, and that the defendant be discharged from imprisonment. The defendant was special bail for Benjamin Hutchins, at the suit of the plaintiffs* in an action on the case, commenced in this court, at February term, 1807, on which a judgment was obtained, and an execution issued.

THIS was an action of debt, on a judgment of the supretiie court of February term, 1807. Newcomb was taken on the capias adresp. and Stitts, the other defendant was returned not found. The defendant pleaded, 1. Nul tiel record; 2.

<p>IN error, on certiorari. Marshall sued Bissell, and declared for goods sold, &c. to 3 dollars. The defendants pleaded non assumpsit, with notice of set-off of work and labour, goods sold, and damages for not delivering clover seed according to agreement. The defendants also pleaded, that a judgment had been rendered in favour of Bissell, against Marshall, on a note, the 12th July, 1808, for 9l. 9s. and that Marshall had neglected to set off the present demand, and so was barred. The justice decided, that the former action being on a note, and the present suit upon an account, the former recovery was no bar to the action. There was a trial by jury, and a verdict for the defendants for 8 dollars.</p> <p>The error assigned was, that the justice, in overruling the plea of a former trial, and allowing the plaintiff’s demand had diminished the verdict for the defendant be? low, to the amount of that demand.</p> <p>The case was submitted to ment. the court, without argu-</p>

IN error, on certiorari. The return stated, that Beadleston sued before the justice, as well for the overseers of the poor of Kingsbury, as for himself, and when the parties appeared, he declared in debt, for 25 dollars ; for that Sprague had sold, on the 13th August, 1808, by retail, one gill of rum, to I. L. Car leu, to be * t J 7 ° 7 J 7 drank in the defendant’s store, without license.

THIS cause came before the court, on the return to , „ . , . a certiorari, directed to a court of special sessions, held before three justices of the peace of Oneida county.' The return stated, that the defendant was charged gteaifng a jester of consequence, from, the house of Benjamin Pierson, belonging to Pierson, and of the value of 12 dollars and 50 cents; that he was arrested on this charge, and tried by three justices, at his request ; that at the trial he was charged…

THIS was an action of covenant, for the non-payment of rent, on a lease.

THE defendants in this cause, after a judgment obtained against them, were imprisoned on a ca. sa. issued thereon, and were discharged, pursuant to the 5th section of the act for the relief of debtors, in respect to the imprisonment of their persons, passed 24th March, 1801, by the court of common pleas of Schoharie county, and more than one year had elapsed since the said discharge. Two questions were submitted to the consideration of the court. 1.

THIS was an action of trespass, for breaking and enter™S the plaintiffs’ close, and cutting down, taking and carrying away timber, &c. „ At the trial, it appeared, that Esther Kissam was tenant in common with the plaintiffs, of the land on which the trespass was proved to have been committed ; anc^ was not not joined in the action. On this ground the defendants’ counsel objected to the plaintiffs’ recovery.

THIS was an action for a malicious prosecution* The declaration stated, that the plaintiff was an innkeeper, and that the defendant, Sherwood, was a justice of the peace, and that the other defendant, Hamilton, did, by a r „ e wicked combination with Sherwood, complain to him against the plaintiff, for selling spirituous liquors, by retail, without license; that a warrant was accordingly issued against the plaintiff, who was arrested, and carried before another magistrate,…

THIS cause came before the court, ón a writ of error, from the Duchess common pleas. ' Tr, , . . _ Willson brought an action on the case against Foree, 911 d declared in assumpsit, 1. For a horse, chair, and ilarness, sold and deliverd; 2. For money lent, money had and received, &c. 3. And an insimul computassent.

<p>THIS was an action of assumpsit, brought against the defendant, as surviving executor of the last will and testament of Edward Whitaker, deceased. The first count in the plaintiff’s declaration, stated, “ That whereas Edward Whitaker, deceased, in his life-time, to wit, on the twentieth day of March, 1802, at Kingston, &c. was indebted to the plaintiff in the sum of 2,000 dollars, lawful money, &c. for money by the plaintiff, before that time, lent and advanced to the said Edward, in his life-time, and at his special instance and request; and the said Edward, being so indebted in his life-time, he the said defendant, as such executor, after the death of the said Edward, in consideration thereof, afterwards, to wit, on the 17th March, 1808, as such surviving executor aforesaid, at Kingston, &c. undertook, and then, and there faithfully promised the plaintiff to pay him, the said last-mentioned sum of money, when he, as such surviving executor, as aforesaid, should, thereto, afterwards, be requested,” &c.</p> <p>There were similar counts, also, for money paid, laid out and expended, money had and received to the use of the plaintiff, work and labour, &c. goods sold and delivered, &c. and the declaration concluded as follows: “Yet the said Edward, in his life-time, and the said defendant,, surviving executor as aforesaid, since his death, although often requested, &c. have not, nor hath either of them, paid the said several sums of money, or any part thereof, to the said plaintiff; but the said Edward, in his lifetime, refused to pay the same, and the said defendant, as surviving executor, as aforesaid, since his death, still doth refuse to pay the same to the plaintiff, whereby the said plaintiff says he is injured, and damnified to 2,000 dollars,” &c.</p> <p>The defendant pleaded that he had not promised and undertaken in manner and form, &c. with notice of a set-off.</p> <p>At the trial the plaintiff produced in evidence a receipt given by Edward Whitaker, deceased, the testator, to Ti C. Dewitt, a witness produced by the plaintiff, and the account accompanying the receipt, which was as follows i “ Received in Kingston, September 29th, 1779, the above sum of 1,492/. 8s. 9d. in goods, and T. C. Dewitt’s note, being the one-sixth part of the personal estate of the late Henry Dewitt and the late Mary Dewitt, deceased, as per inventory, for my son, Edward Whitaker, jun. a minor.” (Signed) “ Edward Whitaker.” This receipt was at the foot of an inventory of one-sixth of the personal estate of Mary Dewitt, deceased, delivered to the witness, T. C. Dewitt, who testified that Edward Whitaker, the testator, about the year 1769, married Elizabeth Dewitt, (the mother of the plaintiff, and the sister of the witness, and one of two daughters of Henry and Maria Dewitt,) in the life-time of her mother. The mother died before Elizabeth Dewitt, and about eighteen months after the birth of the plaintiff, who is an only child, and was born the 12th May, 1770: the settlement of the estate mentioned in the receipt, took place at the date of the receipt, which was given for 1,490/. 8s. 9d. in continental money, there being then no other currency, and which sum was equal to 102/. 6s. Sd. in gold and silver; that the testator took also the note of the witness, for a sum in continental money, equal to 7Sl. 13s. 11 d. in gold and silver, which note, with one month’s interest, was paid the 30th November, 1779, in continental money ; the residue of the sum specified in the receipt being made up by the articles mentioned in the inventory. It appeared that the plaintiff, after he came of age, in the life-time of his fa-trier, worked for him, and was paid an account exhibited by him, for work.</p> <p>A verdict was taken, by consent, for the plaintiff, Subject to a case; reserving all questions of law, and with liberty to modify the verdict, as to the amount of principal and interest to be recovered, or to alter it into a verdict for the defendant, if the court should be of opinion that judgment ought to be entered for the defendant: and that the defendant might also, at the same time, move in arrest of judgment.</p>

THIS cause came before the court, on a writ of error, from the court of common pleas of Rensselaer county. The plaintiffs brought an action of debt againt the defendant, as sheriff of the county of Rensselaer, for the escape of one Peter Haff, who was in the custody of the defendant, on execution, at the suit of the plaintiffs, on the 25th May, 1805. The defendant pleaded, 1. Not guilty; 2.

THE defendant being taken into custody, during the last vacation, put in special bail, which was excepted to by the plaintiff, and notice was given, during the vacation, t]-Lat yie ga}i Would justify before the recorder of the city J J Qf Neto-York, at his chambers; but doubts being suggested, whether bail could justify at a judge’s chambers, in vacation, without .consent, the question was now Submitted for the opinion of the court.

THE sheriff of the county, to whom the venires, returnable at a circuit, were directed, went out of office a day or two before the commencement of the circuit, but after the jurors had been drawn and summoned. No venires were actually delivered to the sheriff; and it appeared to be the practice not to deliver them, before the causes are about to be called.

AFTER the judgment against the special bail in this cause, who had become fixed, the principal was discharged under the insolvent act. A ca. sa. was then issued against the bail, who, being takensein execution, paid the debt, and then brought this action against the principal, to recover the amount. And the question was, whether the principal could plead his discharge in this suit, brought against him by the bail.

AFTER the time for the defendant’s appearing had expired, the plaintiff filed a declaration de bene esse, and entered a rule to plead, on the 28th December, 1809, and on the 13th February, 1810, filed common bail for the defendant, according to the statute, and entered a default for want of a plea.

THE first suit was an action of debt, on a bond given » ,1 . , , 5>y the intestate» By the affidavit of the defendant’s attorney, it appearsd, that on the 21st March, 1809, the declaration and notice of rule to plead, in the first cause, were served A judgment was obtained against the defendant in the Srst cause, in May term, 1809, for the amount of the bond of the testator, on which the suit was brought, and an execution was issued, the 13th November last, returnable in the…

<p>MUNRO, for the defendant, moved to set aside the default entered in this cause. • The writ was omitted to employ an attorney to defend the suit, until ■l ii.ji i, i i-the 30th April, when he was informed that the plum-tiff’s attorney had filed common bail, and entered ade~ fault for want of a plea. He also stated that he had a good and substantial defence on the merits, as he -was advised, &c. at the last term. The defendant, in his affidavit, stated, that he was so much ene-aved in other business, that he ° ° J</p>

IN error, on certiorari. Hicks, as supervisor of the ió wn of Flushing, in Q'ueens county, brought an action of debt, against Palmer, the plaintiff in error, and two others, for the penalty of ten dollars, for an offence against the rules and regulations of the town of Flushing, . . made by the freeholders and inhabitants of the town, as- , , , . . , ’ sembled m town-meeting pursuant to the act.

<p>THIS was an action of ejectment, for a -farm in i?hieens county.</p> <p>At the trial, the plaintiff gave in evidence, the exemplification of a record of a judgment, recovered in this court by C. and W. Thorne, against John Barton and Thomas Carpenter, for 920 dollars, which was signed the 5th February, 1806, but it did not otherwise' appear that the same had been docketed, or at what time. The plaintiff also produced a fieri facias, and a testatum fieri facias on the same judgment, the latter directed to the sheriff of ¡fueens, by virtue of which, the premises in question were sold, at public auction, by the sheriff on the 31st December, 1806, to the lessor of the plaintiff, as the highest bidder, for 400 dollars. The deed of the sheriff to the lessor, was dated the 22d May, 1807. Frost, the tenant, was in possession of the premises at the time the execution was levied, and when the deed was executed. He held under Hafif, as his landlord.</p> <p>Two witnesses testified that Barton was the reputed owner of the premises, and lived on the farm for several years, until he removed to New-Tork, about five years since ; and that Frost, after Barton’s removal, held under him.</p> <p>The defendants produced, in evidence, a deed, from Barton to Hajf, dated the 6th December, 1805, for the consideration of 4,000 dollars, expressed in the deed, which contained full covenants of warranty, with the usual covenants. This deed was acknowledged the7th December, 1805, ancf recorded in the clerk’s office* of ¡fiieens county, on the 30th day of the same month.</p> <p>A person, at the request of Haff, attended at the place of the sheriff’s sale, and before the sale, gave public notice to the sheriff and the persons present, of his claim and title to the premises, by virtue of the deed from Barton, which he showed, and cautioned the bidders not to" purchase.</p> <p>It appeared that Barton and Carpenter, were partners in trade, in the city of New-Tork, and stopped payment m May or June, 1805. Barton told a witness, that he would not pay more than one half of any debt; and that he supposed the creditors would endeavour to take his property* but that he knew as much law as any of them, and would put his estate out of his hands, and would pay no debts unless Carpenter paid his half.</p> <p>A number of witnesses were then examined, on both sides, to impeach the deed, as fraudulent, on the one hand, and to support it on the other; but it is not necessary here to state their testimony, ás the cause before the court, turned wholly on the admissibility of Barton, as a witness, who was offered by the defendants, but being objected to, as incompetent, was rejected by the judge. Before Barton was offered, ZTo^executed a release to him of all claims and demands whatsoever, for or on account of the covenants and warranty contained in the deed, and from all claims and demands whatsoever by him, on account of the premises.</p> <p>The judge charged the jury, that although fraud ought to be satisfactorily proved, yet positive proof was not indispensably necessary, but it might be inferred from circumstances ; and in the present case, the evidence produced was, in his opinion, sufficient to warrant the jury jin finding a verdict for the plaintiff. The jury, accordingly,found a verdict for the plaintiff.</p> <p>A motion was now made to set aside the verdict, and for a new trial.</p>

IN error, from the court of common pleas, of Dutchess county. The plaintiffs, as executors of Evertson, brought an action of assumpsit, on a breach of warranty, on the saie 0f a horse, to the testator. The declaration contained four counts. 1.

THIS cause came before the court, on a writ of error, insimul computassent. , , _ fendant m error, m the court below, for goods sold and delivered, money paid, &c. money lent, &c.; and on an The defendant pleaded non assumpsit, with notice of ‘The plaintiffs proved their demand for goods sold and delivered, to the, amount of 2.56 dollars and 81 cents.

THIS was an action of ejectment, for lot number 3. in the township of Hector, in the county of Senecam The cause was tried, at the Señeca circuit, on the 6th of June, 1809, before Mr. Justice Van Ness.

<p>A sheriff who bond witffsm-e! berties of the fa°pr?sonerd in sued'1foi-1,anWaS scape, and a judgment recovered against notice to 8the suh/which fended lyby the the'-m ejfe d by</p> <p>Tlie sheriff, afterwards brought an aeforhis indemnL field that there! covery m the conclusive evideuce in the suit on the bond; and that the defendants could of1 the 1 suit1 a! ?helo!¡rnconi trovert the fact of the escape.</p>

THIS was an action on the case, against the defendant a3 a common carrier of goods for hire, in a certain ° 7 sloop, called the Margaret, between Kinderhook and New-York, on the Hudson river.

IN error, on certiorari, from a justice’s court; Cur'- . .... . - tis sued broat before the justice, in trover, ior 600 bushels of coals.

THIS was an action of assumpsit. The defendant was owner of the ship Science, Thomas Howard, master, and received on board, at New-Tork, a quantity of goods belonging to the plaintiffs, to be carried to London.

<p>THIS cause came before the court, on certiorari, from „ . * , , . i a justice s court. The suit below was a special action on the case against Upton, for “ falsely and deceitfully” recommending one Daniel Brown, jun. to fail, as aman of property, whereby Vail was induced to give credit to Brown, and, afterwards, lost his debt. The facts, as they appeared before the justice, upon the trial, were, as follows: Upton had a judgment bond against Brown, . , -'i, , i. • i bearing date the 5 th of March, 1808, and conditioned to pay 550 dollars. On the 10th of March, 1808, he went with Brown to the house of Vail, where Brown applied for goods upon credit, and Vail asked Upton as to the solvency of Brown ; and Upton said, he was good, and as good as any man in the county for that sum. Vail, ace cordingly, trusted him with goods, to the amount of 10 dollars, and took his note, payable the 1st of October following. On the 25th of March, 1808, Upton, caused an execution to be issued on his judgment, and took, and sold all the property of Brown; and among which was the property that Brown had received of Vail, upon the credit abovementioned. This was confessed by Upton, who said that Brown had no property, and was worth nothing ; and that he had taken the goods which Brown received of Vail, and had a right so to do, and would do so again. All this happened before BroxorPs note fell due. Upon these facts, the justice gave judgment against Upton.</p> <p>The cause was submitted to the court without argument.</p>

THIS was an action of ejectment, for lands in Richmond county. The declaration contained joint and several demises, from Richard Decker and his wife, John Merrill, Richard Merrill, and Anne Merrill, as lessors of the plaintiff. This cause was tried, at the Richmond circuit, on the 26th of May, 1809, before Mr. Justice Spencer.

IN error, on certiorari, from the iustice’s court, in ^ ' NeW-'Tork. The return stated, that Ward sued Doolin, by warrant, and declared against him, for a breach of contract, to his damage 50 dollars. Doolin pleaded the general issue with notice of a set-off. Upon the trial Ward pro- ’ r f yed, that on the 10th day of July, 1809, certain articles .

IN error, on certiorari, from a justice’s court. The return stated, that Miller sued Barker and Knapp. Barker was personally served with the summons, and Knapp by a copy. Barker appeared, but Knapp did not. ]\faiier declared against both defendants ; for that he be» ing a constable, and possessed of certain articles of furniture, to the amount of 25 dollars, which he had seized oni an execution, against James Caswell, the defendants took and converted them.

THIS was an action of ejectment, brought to recover the possession of a house and lot of land, in the city of 1 , , Nexv-York. The cause was tried at the Sittings, held in the city of New-York, the 12th of June, 1809, before Mr. _ . Justice ópencer.

THIS was an action on an open policy of insurance, on 300 barrels of flour, the property of the plaintiffs, laden on board of the ship Herkimer, on a voyage from L * vo New-York to London. The sum insured in the policy, was - . ■ 2,750 dollars, at a premium oi live per cent. 1 he amount of interest covered, was 2,691 dollars and 14 cents.

THESE actions were commenced on three separate policies of insurance. The policy in the first cause, was dated the 19th of December, 1807, on the American ship, * J called the Amiable Matilda, Hilliard, master, “ at and ^rom New-Tork to Barcelona and Salon /’ valued at 5,500 dollars. At the foot of the policy were the following wr‘lt;t;en clauses : “ Warranted American property, propf whereof, is required to be made here only.

THIS was an action of ejectment, for lot No. 25. in the township of Marcellus. The cause was tried at the Onondaga circuit, the 21st of June, 1809, before Mr. Justice Lhompson.

<p>D. and G. bedifsoived^their assist*'? zlecember, 1801, and gave notice. “ the gazette, of the dissolution, and that n. was authorized to receive all adjust "Sí ac-^ toUthe 'partnersented an account between him and the ti.'Jwho said it ^de“ out°°by£ him ; but he thought it hau been settled by D., who had the partnership books, and that he would see him; and inform A. oí the result. This was held a sufficient acknowledgment of the debt, to take it out of the statute of limitations.</p> <p>D. having also, on the 1st of January, 1808, stated an account in the name of the partner» ship with A., admitting the debt due to A., it was held.a sufficient acknowledgment of the debt, so as to take it out of the statute of limitations, and to bind the partners.</p> <p>Though one partner, after the dissolution of the partnership, cannot bind the other, by any new contract;yet his acknowledgment of a previous debt due from the partnership, will bind the other partner- so far as to prevent him from availing hijnsclf of the statute of limitations.</p>

THIS was an action of debt¡ for the escape of one Abrahain A. Van Alstyne, after judgment against him, in this court, and after he had been surrendered by his bail, but before he had been charged in execution by a ca. sa. The declaration was in debt, for the amount of the judgment. Previous to the surrender, a ca. sa. had been1 issued on the judgment, and returned non est inventus The cause was tried at the Columbia circuit, in December 1809.

THIS was an action of ejectment, for lot no. 79. m / ’ Aurelius. The several demises were laid on the 1st of •r_- . _ - ~ January, 1805. lhe cause was tried at the Cayuga circuit, in June, 1809, before Mr. Justice Van Ness. The plaintiff, after proving the defendant in possession, Vyave jn evidence a deed from Nathan Wheeler to Weston ° Allen, for 200 acres of the north part of the lot, dated the 5th of April, 1803.

THIS was an action of assumpsit, for work and labour of the plaintiff, performed by his apprentice, in navigating a ship, called the Maryland, belonging to the defend-ants? on a voyage from New-York, round Cape Horn, whence to Canton, and back to New-York. ’ The cause was tried before Mr. Justice Yates, on the 14 th day of December, 1809, at the New-York Sittings, The apprentice, Thomas Shea, was bound to the plaintiff, by indentures, for a term, of which about two years…

<p>THIS was.an action of trespass, and was tried at the Washington circuit, on the 19th of June, 1810, before Mr. Justice Van Ness.</p> <p>It was proved, that the plaintiff, being at a tavern, with a sleigh and horses, the defendant took one of the horses out" of the sleigh, and led him away, though charged not to do so, by the plaintiff. It appeared that one Crandall, an officer, had an attachment against Chittenden, at the suit of the defendant, and the defendant requested him to take the horse in question, "which he refused to do; upon which the defendant took the horse and delivered him to the officer, on the attachment, as the property of Chittenden. The attachment was never returned. It fur-, ther appeared, that the horse in question, had before belonged to Chittenden, who delivered him to Heath, as security for a debt, for which an attachment had been is'-sued by Heath, against Chittenden, but no ¿rial ever took place. The jury found a verdict for the plaintiff, for 50 dollars damages, and six cents costs.</p> <p>The plaintiff’s counsel applied to the judge, to certify that the trespass was wilful and malicious; but the judge refused to grant the certificate, and referred the plaintiff to the decision of the court, as to the propriety of granting it.</p>

A QUESTION m tms cause, as to double costs, was . , ■ , submitted to the court. The plaintiffs sued the defendant, in' the Rensselaer common pleas. A judgment, after verdict, wai given for t^ie defendant, and on error to this court, that judgment was a firmed. ' ' * •

THIS was an application to the court, for a mandamus to the judges of the Otsego common pleas, to amend a bill of exceptions, according to the truth of the case.

CRARY, for the defendant, moved to set aside the admeasurement of dower, made by the surrogate of Washington, in this case.

<p>RUGOLES, for the defendant, moved to set aside the execution, issued in this cause. He read the affidavit of the defendant, which stated that in August, 1807, the plaintiff recovered.a judgment, in an action oí assumpsit, against the defendant, in this court, for 106 dollars and - . . 97 cents ; that in the year 1808, the plaintiff, by order of the defendant, delivered to W. I. a quantity of logs, of the value of 31 dollars ; and on the 37th , of April, 1809, the plaintiff drew an order on the defendant, requesting him to pay to L. P. the balance due to the plaintiff, on which order the defendant paid the sum of-80 dollars, of which payment the plaintiff had notice^ During the vacation, subsequent to the last February term, the plaintiff issued an execution, for the amount of the judgment, which was levied by the sheriff, on the property of the defendant; the sheriff being directed to a balance of 60 dollars.</p> <p>There appeared to be some difference •between the parties, about the logs delivered. The plaintiff. calculated the interest on the amount of the judgment,' and after deducting the money paid, directed the sheriff to levy the balance.</p> <p>. It was agreed, that if none of the payments were applied to the interest, the judgment was fully satisfied; and the only question was, whether the interest could be collected on the execution, in such a case.</p>

FOOT, for the defendants, moved for judgment, as in • « 'U v case of nonsuit, for not proceeding to trial in this cause.

VAN BUREN, for the defendant, moved to set aside the default, and all subsequent proceedings in this cause, for irregularity. _ It appeared that this was an action of debt, on a judgment recovered against the defendant in the state of Ver- , 0 ■mont; that no notice of any assessment of damages, or , . ° mquiry of damages had been given to the defendant, , , - , . . , nor had a copy ot the costs, or notice of the taxation, been served upon him, or his attorney.

■ THESE were actions of dower, brought to recover the dower of Anne, who was the wife of Moses Northrop, deceased, in lot no. 168. in Pittstown, in the county of Rensselaer. Held: and the other half of the same lot to the other defendant, Harrington. On the 24th of September, 1806, the mortgage was paid off and satisfied hy Bayles and Rouse. The widow of Moses Northrop, deceased, before the commencement of the present suit, married Hitchcock, the plaintiff.

E. WILLIAMS, for the defendant, moved to set the judgment, and all subsequent proceedings, in this cause, for irregularity.

THE defendant was brought before the court, on an attachment, for the non-payment of the costs, in several actions of ejectment, in which he was one of the lessors.

THE prisoner, Wilson, was, convicted, at the last oyer e e and terminer, held m Washington county, of uttering, as - - true, knowing it to be false, &c. a forged promissory r ,, - , , , note, for the payment of money, purporting to be a bank note of the Vermont state bank, for 75 cents, payable to t^ie bearer, at their office of discount and deposit, at Woodstock, &c. with intent to defraud one James Watson, ^c5 anc* also, for feloniously having the same note in his…

<p>THIS was an action of ejectment for land in Johns-l>orouS'lti *n Washington county.</p> <p>It was admitted that John Thurman, at the time of v . his death, was seised in fee of the premises m question. That he died intestate, the 27th of September, 1809* leaving the lessors of the plaintiffs, Nicholas Roosevelt and ' Elizabeth Gilchrist, the children of Elizabeth Roosevelt, deceased, the sister of the intestate, and the defendant, 7 ' 7 Ralph Thurman, son of Ralph Thurman, deceased, a . . brother of the intestate, his heirs at law.</p> <p>The cause was submitted to the court, without argument.</p>

CARBINIER, for the defendant, moved to set aside the default entered in this cause, for want of a plea, and all subsequent proceedings, on the ground of irregularity.

E. WILLIAMS, for the defendants, moved to set aside the interlocutory judgment, entered in this cause, for irregularity.

<p>Where an affidavit was made an attorney, on which to oh-0Vt, cJr°io' after'“the '¡“’¡,s™“n‘upp^g' mentary affidavit was allowed, tobe made after the 30 days, to show the reason, affidavit was not himself; al"eoiiaterdihcu but not as to the merits.</p>

<p>< Where a motion to refer & cause, is repelled by an affidavit, that questions of law will arise, such affidavit must state what the points of law are, to enable the court to judge of the propriety of granting or refusing the application,</p>

<p>The rule nisi, for judgment after verdict, may te entered, on iiny day in term.</p>

z. r. SHEPHERD, for the plaintiff, moved for a retaxation of the costs, in this cause, which had been tax'» . . . „ . c ed, on a motion for judgment as m case ot a nonsuit, tor not proceeding to trial; on the ground, that the witA nesses’ fees were unjustly charged.

EMOTT, for the defendant, moved to set aside the judgment, entered by confession, and the execution in this cause, on the ground that the bond was given for gaminsr debt. ; °

IN error from a justice’s court. Beecker sued Borst before the justice. Issue being joined between the parties, at the request of the plaintiff, a jury was summoned; and when the jurors were called to be sworn, the defendant below objected to two of the jurors on the panel, on the ground that they were aliens, and had not been naturalized, and offered to prove the fact. It was admitted, that the jurors were freeholders, and had been inhabitants of the town, for many years.

THE plaintiff recovered judgment, against the der «-*> »■«> is one of the attorneys of this court, for s;x dollars damages; and had the full costs of this court ° taxed,* and issued an execution for the amount of the damages and costs,

<p>H. BLEECKER, for the defendant, moved for judgment, as in case of nonsuit, for not proceeding to trial, ‘ according to the practice of the court.</p>

THIS was a case of an ipdictnient, for a forcible en-tr7 and detainer, before jpstices of the peace, (See act, gesSe j c> 6.) which had been removed to this court by * ■ y certiorari.

THIS cause came before this court, on a writ of error directed to the supreme court. On the 5th of February, 1810, the following order was , moved ; “ On reading and filing the affidavit of Mr. Rodman, of counsel for the plaintiff in error, ordered, that the justices of the supreme court of judicature forthwith make 1 u _ return to the writ of error allowed and filed in this case, r , . according to the exigency oi the writ.

THE appellant filed his bill against the defendant in the court of chancery, and, from the pleadings and depositions, the following facts appeared. In the year 1795, the appellant purchased of William Powers, an acre of A A A e 7 land, with the buildings thereon, in Hillsdale, in the county of Columbia, for the consideration of 500 dollars, for which he received a full and ample deed.

<p>A BILL was filed in the court of chancery, on the 2d December, 1802, by Patrick Connolly, Michael Rawlins and Eleanor his wife, against the appellant and Bernard Connolly, since deceased, as administrator of Michael Connolly deceased. J -</p> <p>Michael Connolly died intestate and unmarried, the 10th September, 1799, leaving a personal estate of the value of about 40,000 dollars, to two-fifths of which, Patrick Connolly and Eleanor Connolly, (the wife of Michael Rawlins,) were entitled, as coheirs with Bernard Connolly, John Connolly and Catharine Connolly. The bill alleged, that the appellant and Bernard Connolly had possessed themselves of the personal estate, and converted It to their own use.</p> <p>The object of the bill was to obtain a discovery and account, which, it was alleged, had been refused, under pretence that the appellant had obtained an assignment, for. a valuable consideration, of a judgment in the supreme court, in favour of Nathan Haley, against Bernard Connolly, as administrator of Michael Connolly, for 31,613 dollars and 33 cents, which would absorb all , . , _ ' the intestate s personal estate; and the bill charged, , . , , , , „ ’ the judgment was purchased by the appellant for the /* i ii . sum or 8,000 dollars, or some other small consideration, for the benefit of the heirs of Michael Connolly, and was paid for with money belonging to the estate. The bill was for a decree of the payment of the distributive shares of the complainants, and for relief generally.</p> <p>Bernard Connolly, in February, 1803, filed his separate answer, in person; but as there appeared to be no connection of interest between him and the appellant, and the answer of one defendant is no evidence against the other, it is not material to state it.</p> <p>The appellant filed his separate answer, the 7th March, 1803, in which he admitted that the complainants were next of kin to Michael Connolly, and entitled to their distributive shares of his personal estate. That Patrick Connolly, Eleanor Connolly and Bernard Connolly, to induce the appellant to undertake the saving and collecting the intestate’s property, which was scattered in different places, in the hands of strangers, exposed to loss and embezzlement, and to recover which, a greater share of enterprise and talent than they possessed was requisite, on the 24th September, 1799, executed and delivered to the appellant, an instrument, under their hands and seals, by which the appellant undertook, at his own expense and risk, to recover the whole, or part of the personal property of the said Michael Connolly deceased, not then in the possession of the said Patrick, Eleanor and Bernard, in consideration of which, the said Patrick, Eleanor and Bernard, agreed and bound themselves to the appellant, that he should have to his own use, the one equal half part of all and every part of such property which he might recover or obtain, or the value thereof from them.</p> <p>That administration of the intestate’s estate was granted "to Bernard Connolly, who, on the 23d September, 1799, executed a power of attorney to the appellant, authorizing him to receive, recover and compound for the intestate’s personal estate. That the appellant, in order to fulfil his agreement, relinquished a very profitable mercantile business in which he was engaged in the city of Albany, exposed his life to great hazard from the malignant fever which prevailed in the city of New-> Fork, in the autumn of 1799, te the diseases of the climate, and the danger of sea voyages to Charleston in South Carolina, Savannah in Georgia, and St. Angus-tine in East Florida, and recovered and collected of the personal estate of the intestate, to the amount of 20,601 dollars and 5 cents, which was all of the intestate’s personal estate which had ever come to his possession; that he had, by the assent, or by the request and dircction of the administrator, and under the agreement aforesaid, paid, applied and retained, out of the monies so collected by him, the amount of 15,555 dollars and 7 cents, of which he gave a detailed account; that he purchased the judgment of Haley, for 9,170 dollars, including 170 dollars, charges in effecting the purchase. The appellant admitted, that the payment had been made with the money derived from, the intestate’s estate, all of which, however, except 3,906 dollars and 46 cents, belonged to the appellant, and was retained by him, under the agreement. The appellant set forth a schedule of the books, vouchers, &c. relating to the intestate’s personal estate, and denied that he ever refused to account; but admitted, that he refused to make any payments to the complainants, as there was a large balance due to him.</p> <p>A replication having been filed, several witnesses were examined. The cause was heard in September, 1807, and was reheard in December, 1807, and in Sep- . tember, 1808, his honour, the chancellor, on the ground of legal and actual fraud in the defendant, decreed, “ that the agreement set forth in the pleadings, between Patrick Connolly, Eleanor Connolly and Bernard Connolly and the appellant, be set aside; and that it be referred to one of the masters, to take an account between the parties of all moneys, goods, chattels, rights, credits, wares, merchandises and securities for money, which were of Michael Connolly deceased, at. the time of his death, and which have come to the hands of the defendants, or either of them, and of all moneys lawfully paid, laid out and expended, by the defendants, or either of them, towards the satisfaction and discharge of the just debts owjng by Michael Connolly, at the time of his death, to any person or persons whatsoever; and also of all just and reasonable charges and expenses which the defendantSj or ebher of them, had been put to, in collecting, &c. And that, upon the taking of the account before the master, it should be lawful for the complainant to examine the defendants, or either of them, upon oath, touching the account,” &c.</p> <p>From the whole of this decree, an appeal was entered to this court,</p> <p>. The depositions of the witnesses taken in the court of chancery, were read; but the grounds on which the judgment of this court proceeded, renders it unnecessary to state the evidence, or the comments of the counsel upon it.</p> <p>The reasons for his decree, were thus assigned by</p>

JOHN ROGERS, the father of the respondents, and former husband of Mary Wilkes, died intestate, in the ^ year 1799, leaving a large real and personal estate.