Volume 6 — Wendell's New York Reports

In February, 1837, the respondents commenced an action of ejectment foi the recovery of certain premises in the possession of the appe»Jant3 claimed by them as the heirs at law of their mother Míriairf.D The appellant filed a bill in chancery to obtain an injiüM.. .. staying the suit at law, and to compel a conveyance fro the respondents to him of the premises claimed.

The appellant filled a bill in chancery, alleging that on the 22d February, 1827, she, by her agent, D. S. Griswold, borrowed of the respondent $500 and to secure the payment, thereof she, by her said agent, assigned to the respondent 40 shares of Williamsburgh Ferry Company stock, of the nominal value of $50 per share, and delivered to him a certificate of the stock assigned ; that she had tendered to the respondent the full amount of the principal and interest of the debt,…

This is an appeal from an order of the chancellor of the 6th August, 1830, directing an answer in the above cause, put in by Ebenezer S. Beach, one of the defendants, separately, and filed on the 15th August, 1829, to be taken from the files of the court. The bill was filed in June, 1827. Notice of appearance was given by R. C. Wheeler, one of the defendants, in person, and as solicitor for all the other defendants.

The. bill in this case was filed by the administrators of Henry I. Van Rensselaer, deceased, in January, 1816, against John Livingston, who died during the pendency of the suit, which was revived against his ex-executors. The complainants charged that their intestate, on the 2d August, 1798, became bound in a bond with William ¥.

On the 24th August, 1826, Marie bought of an agent of the complainants in the city of New-York, 18 packages of goods, amounting to $7993,58, for which he agreed to give his own notes, payable in 5 equal proportions, at 6, 7, 8, 9 and 10 months; the goods were sold at 14 cents per franc, short price, when goods of the same quality were publicly selling at from 20 to 22 cents per franc, and not at a larger credit than six months.

<p>Where a company, incorporated for the purpose of erecting a bridge, were authorized to erect the same across a lake or the outlet thereof, and to rebuild it if destroyed or carried away by the ice, and all other persons were prohibited from erecting a bridge within three miles of the place where the bridge should be erected by the company, and the company proceeded and built a bridge across the lake, which continued about eight years, when it was carried away by the ice, and the company then erected another bridge, locating it across the outlet, about two miles from the site of the first bridge, it was held that the building of the bridge across the outlet was, at the time it was built, unauthorized, and that Ihe restricted limits were to be measured from.the place where the first bridge was erected.</p>

At New-York, in the autumn of 1822, the • respondent and Henry Mactier the intestate, agreed to embark in a commercial adventure, in which they were to be jointly and equally interested.

<p>Error from the supreme court. In 1816, Benajah Brown made his will, and by it devised the whole of his real and personal estate to six sons, he having at the time six sons, six daughters and one grandson ; charging his estate with the payment of $200 to each of his daughters, and of a like sum to his grandson. In 1821, he made a codicil to his will, by which an alteration was made in the disposition of the property, so that the shares of two of his sons were given to a trustee for their use. The codicil was duly executed, attached to the will and taken by Brown. Brown resided in the county of Rensselaer; in the month of May, 1822, he went to pay a visit to several of his children, who resided in the county of Westchester. Whilst there he called on the individual who had written the codicil for him in 1821, and requested him to draw mother codicil to his will, but did not produce his will. The codicil was not drawn, and the next day the decedent sickened, and about two weeks after-wards died. No will was found about the person or effects of the decedent, nor at his residence; his desk was-searched, where notes, deeds and oth,er valuable papers were found, but no will. The decedent was a widower, and for about two years previous to his death one of his daughters, (Nancy Ayres,) had resided with him; a grandson, (son of the defendant,) had also resided with him for some time previous to his death. When Mrs. Ayres was informed of the sickness of her father, she went to, remained -with and took care of him until his- death. Mrs. Ayres testified that her father died about three weeks after he left home; that he kept his papers in a desk; that a short time previous to his leaving home she observed him take something from his desk which appeared to her like papers; he seemed- to be sly about it, and was going to Troy. Before he left home for Westchester he was very attentive to the arrangement of his papers; she saw him once or twice burn papers which he took from his desk, and when he went away he took a bundle of papers with him. He was 72 years old. Two of the lessors of the plaintiff were sworn, although objected to by the defendant; one stated the search made for the will in Westchester and at the residence of the decedent; the other, that whilst his father lay sick he examined his trunk, and found two or three loose papers in it, but no will.</p> <p>The above facts appeared on the trial of an action of ejectment, brought by three of the sons, claiming as devisees under the will of 1816, against the husband of one of the daughters, who was in possession of part of the real estate of the decedent, and who entered into a special consent rule, claiming an interest in the premises as a tenant in common. The cause was tried at the Rensselaer circuit, before the Hon. John Woodworth, then one of the justices of the supreme court. On the trial of the cause it was offered to be proved that one of the daughters of the decedent was at the time of his death the mother of a large family of children, and that she and her husband were wholly unable to support them; the relative situation of the other children of the decedent, in point of property, was also offered to be shewn. ’ This evidence was objected to by the plaintiff, and overruled by the judge, who, after the testimo»y was closed, decided and declared the law to be that if the will was duly executed, and once an existing will, and in the hands of the testator, unless there be evidence of its having been cancelled or revoked by the testator, the law presumes its continued existence to the death of the testator; that the facts proved by the defendant were not sufficient in judgment of law to warrant the infereucce that the will had been cancelled or destroyed by the testator, or to justify the jury in finding that the testator revoked his will, and that he should so state the law to them; and that the counsel for the defendant could not be permitted to argue to the jury that, those facts alone would justify them to find that the will had been revoked. To which opinion and decisions the counsel for the defendant excepted. The jury found for the plaintiff. The defendant applied to the supreme court for a new trial, which was refused. (See the reasons of the supreme court, 9 Cowen, 208.) Whereupon the defendant sued out his writ of error.</p> <p>The cause here was argued by</p>

<p>An action of debt on judgment lies against a defendant not' brought into court, where, in a suit against joint debtors, the plaintiff proceeds under the statute as if all the defendants were brought in and takes judgment against all.</p> <p>It seems that a defendant in such case may avail himself of any defence which it would have been competent for him to urge in the original action had he been brought into court.</p> <p>A judgment entered against a joint debtor not brought into court, it seems, would not entitle a plaintiff to recover without other evidence of indebtedness, if such indebtedness was directly put in issue by the pleadings ; and that the omsprobandi would lie upon the plaintiff to shew the original indebtedness, and not upon the defendant to disprove it.</p> <p>A denial of joint liability by a defendant not brought into court in the first action in a suit on the judgment is a good and valid plea.</p>

Error from the supreme court. In October term, 1822, Hills, in the name of James Jackson, as nominal plaintiffs commenced an action of ejectment against Tuttle for the recovery of 36 acres of land, which was tried at the Oneida circuit in October, 1826, before the Hon. Nathan Williams, one of the circuit judges.

Error, from the supreme court. This was an action of ejectment, brought to recover lot No. 14, in a tract of land called Jessup’s Little Patent, claimed to have been forfeited by the attainder of Ebenezer Jessup and three others, by virtue of an act of attainder passed the 22d October, 1779, and to have been sold by the commissioner of forfeiture for the district in which the lot was situate to General John Williams, the ancestor of one of the lessors of the plaintiff.

<p>Special bail, sued on their recognizance, may insist, by way of plea in bar of the action, that before a breach of the condition of the recognizance, an agreement was entered into by the plaintiff that the defendant in the original action might depart the state, and that no proceedings should be had in such action until his return.</p> <p>If such agreement is made with the knowledge and consent of the bail, it is founded on a sufficient consideration, and the remedy of the plaintiff is suspended until the return of the defendant: if made with the defendant only, without the privity or consent of the bail, the latter is absolutely discharged, as it would be a fraud upon him for the plaintiff to induce the defendant to leave the state under such circumstances, and then to proceed against the bail.</p> <p>The court in which the original proceedings were pending might in such case set aside a ca. sa. and the sheriff’s return thereon, or order a stay of proceedings until the return of the defendant; or a court of chancery might grant relief.</p>

In error from the supreme court. William Gould sued Stephen Gould in the supreme court in an action of assumpsit for money paid. The plaintiff, David Banks, and two other persons were the sureties of Stephen Gould, in two bonds for the payment of $2250, of which sum, $2000 were secured by two separate mortgages of real estate, one executed by William Gould, and the other by David Banks; the latter died, and his son David Banks, jun. succeeded to his estate.

<p>Error from the supreme court. Law sued Merrills in the common pleas of Washington, and declared as the bearer of a promissory note for $125, bearing date 29th June, 1822, made by lire defendant, and payable ten days after date, to Sally M. Jones or bearer. The defendant pleaded non-assumpsit and payment. The cause was tried in the common pleas in March, 1825. The note was proved, and on it appeared two endorsements of $10 each, one under date of 16th December, 1822, the other of 6th May, 1823. The note was transferred to the plaintiff in July, 1823. On the part of the defendant it was proved, by a witness of the name of Wilson, that in the summer of 1822 he heard Miss Jones say that she had let her money to the defendant, for which she received about double interest; she shewed the note to him, and said she had made a good bargain, was to have nearly double interest, and he understood 12 per cent.; he was present when the endorsement was made, in December, 1822. White, another witness for the defendant, testified that about a month before the note in question was given, Miss Jones loaned to the defendant $90. Before the loan was made, Miss Jones told him that the defendant was to give her twelve per cent., and she thought she ought to have fourteen per cent.; he told her she had no right to take more than seven per cent. He counted out $90 to the defendant, and took his note for that amount. About a month after-wards, Miss Jones told him she had let the defendant have some more money, which, together with the $90 and the interest, amounted to $125, and had taken a new note for that sum, and the first note was taken up; that she was to have twelve per cent, on the last mentioned note, which was included therein. In December, 1822, or January, 1823, Miss Jones told him she had received $10 towards extra, interest, which he endorsed on the note. This witness testified that Miss Jones was his step-daughter, and that they were not on friendly terms. Merrills, another witness for defendant, testified that in December, 1822, or January thereafter, he saw the defendant pay Miss Jones $10 for extra, interest; and Darby, another witness for defendant, testified that in the winter of 3 822 or 1823, Miss Jones told him that the defendant owed her on a note, and had paid her $10 as extra, interest. On the part of the plaintiff, it was proved by a witness called by him, that after the commencement of the suit in the common pleas, he had a conversation with the defendant relative to the note, and the probability of defeating a recovery thereon on the ground of usury; that the defendant said that the note was given for the sum of money actually received, and no more; but that he could prove that Miss Jones had taken from him more than seven per cent. The cause was summed up by the counsel for the parties, and the jury were charged by the court that if at the timé of the making of the loan, it was agreed between the parties that the defendant should pay more than seven per cent, interest, the defendant was entitled to their verdict; but if they believed from the testimony that the note was given for the amount of money advanced, and nothing more, and the agreement to pay extra, interest, as mentioned by the witness, was made subsequently and with a view of obtaining further indulgence, such agreement would not affect the validity of the note, and the plaintiff was entitled to their verdict. The judge who charged the jury recapitulated the testimony and submitted the cause to the jury. Immediately after the judge had charged the .jury, the counsel for the defendant stated that the court had misunderstood the testimony of the witness Wil-son, and insisted that he had testified that Miss Jones, in the .conversation testified to by him, bad stated that it was expressly agreed between her and the defendant, at the time the money was loaned and the note in question was given, that he should give her twelve per cent, interest for the use of the money, and insisted on having him called and examined as to lohether he had so testified or not. The plaintiff’s counsel objected, and the court decided that it was a matter of discretion, after a cause had been submitted by the court to a jury, whether or not to permit a witness to be interrogated as to any part of his testimony; that in the present case it appeared to them improper to extend that indulgence, and they refused to permit Wilson to be called. The defendant’s counsel excepted to the opinion of the court, and the jury found a verdict for the plaintiff. A case was made, with leave to either party to turn the same into a bill of exceptions. A motion was made to the C. P. for a new trial on the case made; on the argument of which an affidavit of the witness Wilson was produced, stating that he had testified, on the trial of the cause, as was alledged by the defendant’s counsel. In August., 1826, the C. P. refused to grant a new trial, and gave judgment for the plaintiff ; the defendant excepted to the decision of the court in refusing a new trial, and the court sealed a bill of exceptions as of the date of August, 1826.</p> <p>The defendant sued out a writ of error to the supreme court, where the judgment of the C. P. was reversed and a venire de novo awarded ; see 9 Cowen, 65; whereupon the plaintiff removed the record into this court. The placila of the record in the C. P. is of March term, 1824, and states the court to have been lioiden in that term at Kingsburj, whereas the C. P. in that term was held in Salem, there being two shire towns in the county of Washington. It also appears, from the entry on the record, that the jury passed only on the issue of non-assumpsit, and it does not appear that they passed on the issue joined on the plea of payment</p> <p>The cause here was argued by.</p>

<p>Error from the supreme court. This was a second action brought by an endorsee against an endorser to recover money paid on a note, there having been a recovery and judgment in the first action. The second action was for money paid subseqitent to the commencement of the first suit. Wright and Butler were accommodation endorsers for one Bostwick on a note for $1500, bearing date 22d November, 1816, payable in 60 days, discounted for the sole benefit of Bostwick at the Middle District Bank. When the note fell due it was protested and notice given to the endorsers, The note was made payable to Wright, who endorsed it, and it was subsequently endorsed by Butler and another person. In January, 1821, Butler having made a, partial payment to the bank, commenced a suit against Wright to recover the amount of such payment; in his declaration was a count on the note charging the defendant as endorser, and also the common counts for money paid, &c. The defendant pleaded the general issue. On the trial of the cause the note, endorsement, protest and notice were proved, and evidence of the sum paid by the plaintiff was given; upon which the plaintiff claimed to recover on the money counts only, waiving a recovery on the count on the note, and a verdict was rendered for about $80. The defendant contended that the plaintiff not having paid and taken up the note, was not entitled to judgment. The court, however, rendered judgment for the plaintiff; see 20 Johns. R. 367 ; and in May term, 1825, the judgment was entered. In October term, 1826, Butler having subsequent to January, 1821, made further payments on the note to the amount of $490,48, but still not having taken up the note, commenced a second action against Wright. He again declared, setting forth the note, and also inserting the money counts. The defendant pleaded, 1. The general issue; 2. The former recovery, setting forth the declaration in the first action and the plea put in, and averring that on the trial of the cause the note endorsed by the defendant was given in evidence and read to the jury, who' found a verdict for the plaintiff, and assessed his damages by reason of the breach of the defendant’s contract in not making payment of the note according to his contract entered into by him by endorsing the note, to a certain amount, (part of which was remitted on the record,) that judgment was entered upon such verdict, and that such judgment was subsequently paid by the defendant; and 3. The defendant pleaded the statute of limitations. To the second plea the plaintiff replied that he had brought bis suit not for the non-performance of the promises and undertakings in the plea mentioned, and in respect whereof the judgment therein mentioned was recovered, but for the non-performance of other and different promises and undertakings made in modo et forma, as in the declaration mentioned ; and to the third plea the plaintiff replied a promise within six years. The defendant by rejoinder denied that he did undertake and promise, &c. as the plaintiff in his new assignment to the second plea had complained, &c. Issue being thus joined, the cause was brought to trial. The plaintiff proved the note, endorsement, protest, notice and payments to the amount of $490,48, made since January, 1821, by the plaintiff to the Middle District Bank; all which evidence was objected to by the defendant, but received by the judge. The plaintiff further proved, that in 1821, the defendant acknowledged his liability on the note, and promised the plaintiff that he would pay as fast as he could. The plaintiff also proved that on the trial of the first suit he waived any recovery on the first count in the declaration in that suit, and claimed to recover on the money counts only: which evidence was objected to by the defendant. The plaintiff now again stated, that in the present suit he waived a recovery on the first count, and claimed to recover on the money counts only. The circuit judge decided that the plaintiff was entitled to recover, and under his direction the jury found a verdict for $490,48. The defendant excepted to the several decisions of the judge and applied to the supreme court for a new trial, who refused the same and gave judgment for the plaintiff. See 2 Wendell, 369. An objection was taken to the sufficiency of the evidence of protest, as will be seen by reference to the case in 2 Wendell, and overruled by the court. The defendant sued out a writ of error.</p>

Error from the supreme court. On the second day of February, 1824, in consideration of Pearl paying the costs of a suit commenced against him by Wells, and also paying Wells $8, the amount of an account demanded by him, the justice of which Pearl denied, Wells agreed to delay payment on a note of $30, which he held against Pearl, due in 1820, and not to sue on the same for jive months.

Error from the supreme court, McFarland, a deputy of the sheriff of the county of Washington, was sued in two actions for acts done by him in his character as a deputy sheriff, under an execution in favor of M, Billings. The plaintiff in the execution agreed to indemnify the deputy, and relained Messrs. Crary and McLean, attornies of the supreme court, to defend the. suits.

Error from the supreme court. Davis was sued in the supreme court on a recognisance of bail entered into by him in a suit of the plaintiffs against T. Hill impleaded, &c.; he pleaded nil debet, and several other pleas to the merits, on all of which issues were joined, a verdict found for the plaintiffs, and judgment rendered in their favor.

Error from the supreme court. S. and M. Allen brought their suit in the supreme court against H. D. Sewall and seven others, to recover for the loss of a package of bank bills of the value of $14,347 T%%, and a draft of '$1800, entrusted to the care of the master of a steam-boat belonging to an-incorporated company, called The Dutchess and Orange Steamboat Company, to be carried from New-York to Albany.

This was an action of trespass de bonis asportatis, tried at the Allegany circuit in October, 1829, before the Hon. Addison Gardner, one of the circuit judges. Various articles of the plaintiff’s property were sold by Benjamin, a constable of Allegany county, by virtue of an execution in favor of Palmer, issued by Wadsworth, a justice of the peace, on a judgment rendered by him in favor of Palmer against the now plaintiff and another person.

Error from the superior court of New-York. Lovett bought of Cornwell and Wing a quantity of timber, amounting to $1046,10, as per bill, and at five o’clock in the afternoon of the 28th May, 1828, the parties settled, and Lovett gave Cornwell and Wing a check on the Franklin Bank for $1000. On the next day, at half past ten o’clock in the forenoon, the bank stopped payment in consequence of a writ of injunction, issued out of the court of chancery, served on the bank.

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

Error from the Washington common pleas. This was an action of trespass for entering the plaintiff’s house, by virtue of a search warrant, to search for stolen goods. The suit was originally brought in a justice’s court; the plaintiff declared in trespass for breaking and entering his house; the defendant pleaded the general issue, and gave notice of justification under a search warrant, issued by a justice of the peace.

<p>Demurrer to plea to an indictment. The defendant was indicted for a conspiracy, and the indictment having been removed into this court by certiorari, the defendant pleaded that J. W. S., one of the grand jurors by whom the indictment was found, before and at the time when he was impannelled charged and sworn as a grand juror, had not a freehold of the the value of $150, nor was he in possession of lands under a contract for the purchase of the same and worth $150 in personal property, nor had he made improvements on such lands to the amount of $150, free from all reprises, debts or incumbrances whatsoever; wherefore he prayed judgment of the indictment, and that the same might be quashed, &c., and that he might not be compelled to answer the same. To this plea there was a general demurrer.</p>

<p>To an action of debt on bond, for the payment of money, a plea averring an-agreement by the obligee to accept a surrender of lands, mortgaged as collateral security, and a tender of performance by the defendants, is not a bar. An accord must be executed; readiness to perform, is not sufficient.</p>

Demurrer to plea. This is an action against a sheriff for removing goods from off demised premises, and notice from the landlord of rent being due, and in arrear ; leaving the rent unpaid. The sheriff pleads that the goods in question were taken by virtue of an execution against an under tenant of part of the demised premises, in whose possession such goods were, at the time of the taking. The plaintiff demurs.

<p>This was an action of assumpsit, tried at the Saratoga circuit, in November, 1829, before the Hon. Esek Cowen, one of the circuit judges.</p> <p>The declaration was on a promissory note for $101TS/T, dated the 30th December, 1819, payable 9 months after date. The defendant pleaded, 1. actio non accrevit infra, &c.; and, 2. a discharge under the insolvent act, exonerating him from all his debts, &c. obtained the 20th August, 1823. The plaintiff replied 1. actio accrevit, &c.; and 2. that on the 1st May, 1829, the defendant assented to, ratified and confirmed the promises, &c. The defendant rejoined, denying that he did assent to, ratify or confirm the promises, &c. A witness for the plaintiff proved, that in 1825 or 1826, he presented the note to the defendant for payment, who said that he would pay it when he was able. The witness gave not a very distinct account of the expressions used by the defendant, representing him as saying, “ that he calculated to pay the note, with all his family concerns, and would pay it as soon as he was able; that he calculated to pay it, and all his other debts, as soon as he got able j that he always calculated to pay the note, and all his family debts, as soon as he was able; and always putting this debt and his other debts on the same footing”. The ability of the defendant to pay was fully shewn. The defendant moved for-a nonsuit for the variance between the proof and the replication, insisting that to entitle the plaintiff to recover, he should have set out a conditional promise in his replication. The judge reserved the question, and charged the jury that no particular form of words was necessary to constitute a promise; that if they believed that the defendant intended to give the witness to understand that he would pay the note when able, and was of sufficient ability to do so at the commencement of the suit, they would find for the plaintiff. The jury found for the plaintiff, and the defendant moved for a new trial.</p>

<p>This was an action of assumpsit, tried at the Dutchess circuit, in December, 1828, before the Hon. James Emott, then one of the circuit judges.</p> <p>The declaration contained several counts: 1. A count in indebitalis assumpsit for 500 barrels of herring, sold and delivered; 2. For a like quantity of fish, bargained and sold; 3. A quantum valebant for the fish, as sold and delivered j 4. A quantum valebant for the fish, as bargained and sold; and 5. Setting forth a special contract, by which the defendants bargained for and bought, and the plaintiff sold all the herring that would pass inspection, without regard to wantage, i. e. deficiency in weight, in a large lot of herring, to wit, 360 barrels, belonging to the plaintiff, at the price of nineteen shillings for each and every barrel that passed inspection, to be delivered to the defendants, on Hicks’ wharf in Brooklyn, as soon after making the contract as should be convenient, and to be paid for by the defendants on delivery ; the inspection to be at the defendants’ expense. The plaintiff averred that on the day after the making of the contract, he delivered on Hicks’ wharf at Brooklyn 279 barrels of herring, the same having passed inspection, and was ready and willing, and tendered and offered to deliver the same to the defendants, and requested them to accept and pay for the same. The breach assigned is that the defendants did accept of and receive the delivery of 250 barrels of the herring, but refused to accept the remaining 29 barrels, and refused to pay for any part of the herring. The declaration also contained the money counts and an insimul computassent. The defendants pleaded the general issue, and gave notice tjiat they would prove, on the trial, a total failure of performance by the plhintiff of his part of the contract.</p> <p>It appeared in evidence, that in the latter part of Jnne, 1825, the plaintiff had a cargo of herring on board a sloop in the port of New-York. Green, one of the defendants, came on board and asked the price of the fish. The plaintiff agreed to take nineteen shillings per barrel. Green said he would send Watrous, an inspector, on board, and if they were good fish, he would take them. Watrous came on board and examined the fish; ascertained’ its quality, and estimated the wantage to be three barrels to the hundred. Afterwards, in the course of the same day, Green said he would pay nineteen shillings for what should bear inspection ; that if he must send lighters along side of the sloop in which the fish were, and take the delivery from the sloop, the plaintiff should make up the wantage in the barrels which were not full; but that if the plaintiff would deliver the fish to the defendants on Hicks’ wharf at Brooklyn, then the defendants would take all the fish that would bear inspection, at nineteen shillings per barrel, as they were, without any regard to wantage; and that the plaintiff might consider of it until evening, before he made his election. Green said he would engage Mr. Hicks to receive the fish upon his dock for inspection, and after inspection, to store it for the defendants. In the evening of the same day, the plaintiff gave notice to Green that he would deliver the fish at Brooklyn ; .and Green agreed to send Watrous over the next forenoon to inspect it. On the next day the plaintiff proceeded with the fish to Brooklyn ; Hicks directed where the fish should be deposited on-the wharf, and opened for inspection ; and gave orders to his-hands to put them into his store as fast as they were inspected. 50 barrels were inspected on- the same day by Watrous, or persons in his employ, and put into the store of Hicks; and on the next day upwards of 200 barrels more were inspected, and put into the same store. There were 360 barrels in the whole, of which number 81 barrels did not pass inspection, leaving 279 barrels, the number for which payment was demanded in the special count. Previous to the fish being removed from New-York to Brooklyn, seven barrels had been taken to the store of the defendants, and returned to the sloop, the fish in those barrels being spoiled; but after they were thus returned to the vessel, an explanation was made to Green in respect to those seven barrels, and he still agreed that the contract should proceed. Upon this evidence the plaintiff rested, and the defendant moved for a nonsuit, on the ground that the evidence was not sufficient to take the case out of the operation of the statute of frauds. The judge refused the nonsuit. The defendants then examined witnesses to prove a recission of the contract on their part previous to performance on the part of the plaintiff; and also that the fish, at the time of the contract, were in a damaged condition, and shortly thereafter became wholly worthless ; to rebut which, testimony was given on the part of the plaintiff. The jury, under the charge of the judge, found a verdict for the plaintiff for $523,46.</p> <p>On the trial of the cause, a question arose as to the competency of one of the witnesses called by the plaintiff to prove the contract. He was examined on his mire dire, and testified that 256 of the 360 barrels of fish belonged to him when the vessel arrived in New-York; that he permitted the plaintiff to sell the 256 barrels as the property of the plaintiff, he looking to the plaintiff alone for payment. That since the sale to the defendants, the plaintiff had accounted to him for the 256 barrels at the rate of nineteen shillings per barrel, although he, the witness, had originally asked twenty shillings per barrel; that the plaintiff had given him a draft upon a mercantile firm for $200, which had been duly paid, and had credited him the residue on account of demands which the plaintiff held against him; and that he had no interest whatever in the event of the suit. After this examination he was admitted a competent witness, and sworn in chief. The de= fendants moved for a new trial.</p>

Demurrer to declaration. The declaration is in debt on bond for the performance of covenants.

Demurrer to declaration. The action is slander. The first count charges that in a conversation had by the defendant, on, &c. at, &c. of and concerning the plaintiff and his occupation as a sawyer of lumber and dealer therein, and of anj concerning his business and occupation as a farmer and se^er ^Y retail of agricultural products by.him raised, the defendant said : “ He keeps false books; he keeps false books of accounts, and I can prove it in five minutes.” The second…

Demurrer to declaration. The action is slander. The declaration, after stating by way of inducement that the plaintiff is a son of James Milligan, of, &c. who has several other sons, brothers of the plaintiff, charges the defendant, in a single count, with saying, in a discourse he had with the plaintiff’s father, in the presence and hearing of divers good and worthy citizens: “ You have brought up your -sons to break open letters and take out money; they, (meaning the…

This was an action of ejectment, tried at the Washington circuit in November, 1829, before the Hon. Esek Cowen, one of the circuit judges. The lessors of the plaintiff claimed to recover the premises in question, as the assignees of a mortgage duly recorded, executed by one Joseph Percival to Braddock Baker, bearing date in 1825.

<p>This was an action for malicious prosecution, tried at the Oneida circuit in October, 1829, before the Hon. Nathan Williams, one of the circuit judges.</p> <p>Gorton sued De Angelis in a justice’s court, and on the 9th February, 1829, the parties appeared before the justice, J. JB. Read, Esq., and the plaintiff declared for a quantity of hogsheads, barrels, &c. and for work and labor. The defendant pleaded the general issue, and gave a general notice of set o£¡¡ and claimed damages for leakage of the hogsheads, &c. and the cause was adjourned until the 26th February, when, at the request of the defendant, it was further adjourned until- the first day of April, and subsequently, on a like request, until the second day of May, afterwards, until the twelfth day of May, when the cause was tried, and a judgment rendered for the plaintiff for $5,98 damages. Whilst this suit was pending, De Angelis commenced a suit by summons against Gorton, before another jr-tice, viz. W. Townsend, Esq. The action was trespass on the case, and the summons was returnable on the fourteenth day of April. Gorton appeared, and De Angelis not appearing, the suit was discontinued. A few minutes after the discontinuance, and previous to Gorton’s leaving the court, De Angelis appeared and took out a new summons, in an action of trespass on the case, against Gorton, returnable on the twenty-first day of April. On the return of this second summons the parties appeared, and De Angelis declared against Gorton, charging him with damages sustained in the leaking of certain hogsheads, and with money paid, &c. Gorton pleaded the suit commenced by him against De Angelis, in bar of a recovery. averring that De Angelis had set off the same matters now alleged in his declaration in that suit, and asked for time to procure the attendance of JB. Read, Esq., the justice before whom the first suit was commenced. Time was granted. This was at about four o’clock in the afternoon. At ten o’clock P. M., Gorton not having returned, the justice, Townsend, proceeded to the hearing of the cause, and gave judgment for De Angelis, for the sum of $28,32. Gorton returned, and brought with him Read, the justice, about fifteen minutes after judgment was rendered against him by-Townsend. De Angelis, having withdrawn two items of the demand exhibited before the justice on the twenty-first day of April, took out another summons from Townsend, in an action of trespass on the case against Gorton, returnable on the twenty-eighth day of April; on which day Gorton appeared, and De Angelis not appearing, the justice rendered judgment against him for costs. The justice stated that before Gorton went away, he thought that De Angelis came, but could not be confident of the fact. The summons was returnable at the distance of nine miles from the residence of Gorton. Gorton appealed from the judgment rendered against him on the 21st April, to the common pleas, and on the 30th April discontinued the same, and paid the costs of the appeal. On these facts appearing, and the plaintiff festing, the defendant moved for a nonsuit, on the ground that no evidence of want of probable cause had been given. The judge decided, that on the evidence before him, the question of want of probable cause was a question of law, and that in his opinion the plaintiff had failed to establish this essential ground of his action, and directed a nonsuit to be entered, which the plaintiff now moved to set aside.</p>

Information in the nature of a quo warranto. In October term, 1829, the attorney general filed an information in the nature of a quo warranto, calling upon the defendants to shew by what authority they, on the first day of July, 1829, and from thence to the filing of the information, claimed to exercise the offices of trustees of the village of Stillwater.

Error from the superior court of the city of New-York. Higgins sued Solomon in an action of covenant on a charter party of affreightment, whereby Higgins let to freight to Solomon a brig called the Emblem, upon a voyage from New-York to Gibraltar, thence to Santa Cruz, in the island of Teneriffe, thence to Havana, and then home to New-York ; reserving the cabin for the captain and his officers, except that a supercargo should have his passage free therein.

<p>A repleader will be awarded.where, in pleading an insolvent discharge, the defendant omits to aver that he was an inhabitant, or imprisoned in the ■county where his discharge was granted.</p> <p>Where a repleader is awarded, neither party is entitled to costs.</p>

This was an action of assumpsit, tried at the Ulster circuit in October 1829, before the Hon. James Emott, then one of the circuit judges. In May, 1829, the plaintiff commenced this suit to recover for services rendered for the defendant by a negro slave. The slave originally belonged to the plaintiff’s father who died in 1802, having by will, given the slave to his wife.

Demurrer to avowries in replevin. The plaintiff declared in replevin for the taking of a horse, waggon and harness.

<p>This was an action of assumpsit, tried at the New-York circuit in April, 1838, before the Hon. Ogden Edwards, one of the circuit judges.</p> <p>The declaration contained a count on a bank check, and the ordinary money counts. On the eleventh day of July, 1836, the defendant sent his clerk to the Merchants’ Bank, and deposited there a bank check for $2000, and $25 in cash, which were passed to his credit on the books of the bank. The check was drawn by the United States Lombard Association, by its president, on the Tradesmen’s Bank, payable to P. W. Wetmore, or order, and when deposited, had on it the endorsement of the payee, and the initials of the defendant, viz. “ P. W. S.” It was deposited between the hours 0f two and three o’clock P. M. On the next day the check was delivered to the porter of the Tradesmen’s Bank, who, according to the course of business between the banks of the city, called to make and receive exchanges, and about noon of the same day the check was returned by the Tradesmen’s Bank as not good. This was the only evidence of the presentment of the check, except that the porter of the Tradesmen’s Bank testified that he calls every morning at the several banks for exchange paper; that such checks as he receives drawn on the Tradesmen’s Bank, he takes to the bank, and if not good, returns to the bank where they were received; that be was porter to the Tradesmen’s Bank in July, 1826 ; that he could not say that he received or presented the check in question, but if he did receive it on the twelfth day of July, 1826, at the Merchants’ Bank, he presented it on the same day at the Tradesmen’s Bank. Notice of the non-payment of the check was left at the defendant’s residence on the twelfth day of July. The Lombard Association had no funds in the Tradesmen’s Bank on the eleventh of July, the date of the check. On this evidence, the plaintiff rested. The defendant moved for a nonsuit, insisting that sufficient evidence of presentment had not been given, and if sufficient, that the presentment should have been on the eleventh of July. The nonsuit was denied. The defendant then adduced evidence to prove payment of the check to the plaintiffs on the thirteenth day of July. A witness was called by the plaintiffs, to explain the transaction on which the defendant relied as establishing his defence, who was objected to as interested, and who, on his voire dire, stated that he was interested, having given a written guaranty to the plaintiffs for the payment of the check in question; whereupon the counsel for the plaintiffs delivered the guaranty to the witness, and told him he might destroy it, which he did. The judge then declared him a competent witness, and he was sworn in chief. Other questions arose in this case, which are not noticed in this report. The jury found for the plaintiffs, and the defendant moved for a new trial.</p>

This was an action of assumpsit on a judgment obtained in Massachusetts, tried at the Rensselaer circuit in June, 1829, before the Hon. William A. Dube, then one of the circuit judges. The declaration sets forth a judgment obtained by the plaintiffs against the defendant in the common pleas of Worcester county, in the commonwealth of Massachusetts, in June, 1820, for $203,41, debt and costs.

<p>Demurrer to declaration. The declaration is in debt on bond, bearing date the 12th February, 1819, reciting that Gilbert Ketcham was appointed sheriff of Dutchess on the 9th day of February, then instant, and conditioned that he “ should well and faithfully, in all things, perform and execute the office of sheriff of the county of Dutchess, during his continuance in the said office by virtue of the said appointment, without fraud, deceit, or oppression.” It is executed by Ketcham, the defendant, and one other person. Two breaches are assigned : First, that Ketcham did not well and faithfully, in all things, perform and execute the office of sheriff of the said county of Dutchess, during his continuance in the said office by virtue of the said appointment, without fraud, deceit, or oppression, but wholly neglected and refused so to do, contrary to the form and effect of the condition of the said writing obligatory; and, Second, that on the 11th day of December, 1819, Ketcham, as such sheriff, had and received, to and for the use of the plaintiffs, the sum of $500, being the amount of certain military fines paid over to him by certain presidents of courts martial, pursuant to the act entitled, “ An act to organize the militia,” passed the 21st April, 1818, and the further sum of $500, being the amount of other military fines, collected by him on warrants before that time issued by certain presidents of courts martial, pursuant to the said act, and delivered to him, as such sheriff, to be executed; amounting, in the whole, to the sum of $1000; and that Ketcham neglected and refused to pay over the money, and, on the contrary thereof, converted it to his own use. It is then averred, that on the 17th October, 1825, the plaintiffs commenced a suit against Ketcham for the recovery of the money; that in August, 1826, a judgment was recovered against him for $704,56 ; that a fori facias was issued on such judgment, which, in October, 1826, was returned nulla bona, whereby an action accrued against the defendants, concluding in the usual manner.</p> <p>The defendant Brush demurs generally, and assigns the following as special causes: 1.. That in the first breach it is not stated how, or in what manner Ketcham has failed to perform; 2. That the defendant, as surety for Ketcham, is not liable for monies received and held by him, unaccompanied by fraud, deceit or oppression; 3. That the bond declared on, being executed pursuant to the act concerning sheriffs, passed in 1813, the surety is not liable for monies received or collected by Ketcham as military fines, under the act to organize the militia, passed in 1818; and 4. That the names af the presidents of the courts martial are not stated, nor is it shewn by whom, or by what authority they were appointed ; what species of court martial they were presidents of, nor to what corps of the militia they belonged, &c.</p>

Error from the Cortland common pleas. The plaintiffs declared in assumpsit for that the defendant, on, See. at, &c. in consideration that the plaintiffs, at the special instance and request of the defendant, would let a certain public road or highway be laid out, and run over and across the land of the plaintiffs, situate in, &c, and be opened, used, and enjoyed as a public highway, undertook, and then and there promised the plaintiffs to pay them a certain sum of money, to…

Error on certiorari to justice’s court. Striker sued Mott in the assistant justice’s court of the twelfth ward of the city of New-York, and declared in trespass for entering his close, breaking down his fence, and travelling over the close. The defendant pleaded not guilty, and the cause was adjourned for trial.

Location of Lands. This was an action of replevin, tried. at the Warrren circuit, in June, 1828, before the Hon. Esek Cowen, one of the circuit judges. The plaintiff brought replevin for the taking of a quantity of saw logs. The defendant claimed the logs, alleging that they were cut on his land, and on the trial shewed title to the locus in quo.

Demurrer to plea. The declaration is in debt on bond, dated 1st February, 1826, conditioned for the payment of a sum of money, on or before 1st June, 1827.

<p>Where a person is employed by an agent, he may call upon the principal for payment for the services rendered; and he may do so, although he knows that the agent has charged the demand to the principal, and received the amount, unless he has agreed to discharge the principal, and rely upon the responsibility of the agent,</p> <p>A law of a foreign state, authorizing proceedings calling on creditors to present their demands against a debtor by a specified day, and declaring the effect of omission to be, not only to take away the remedy, but to extinguish the debt, will be considered, where there is no insolvency and no surrender of property, in the nature of a statute of limitations, affecting the remedy and not the validity of the contract.</p> <p>A plea of the statute of limitations of the state where the contract is made, is no bar to a suit brought in a foreign tribunal to enforce the contract; but a plea of the statute of limitations of the state where the suit is brought,is a good bar.</p> <p>The lonlten or statute laws, and judicial records of a foreign state, must be proved by documents properly authenticated, under the seal of the state, or a sworn, copy must be produced.</p> <p>The public seal of a state, affixed to the exemplification of a law or judicial proceeding, it seems, proves itself; it is matter of notoriety, and will be taken notice of as part of the law of nations acknowledged by all.</p> <p>Under a commission to take testimony, the depositions of witnesses will be received in evidence, although the oaths to the witnesses were not administered by the commissioners, if it appears that they were prohibited from administering them, and they were in fact administered by the local authorities.</p>

This was an action of assumpsit, tried at the Albany circuit in September, 1829. It was proved that the president of a brigade court martial, appointed for. the year 1818, paid to a deputy of the defendant, then sheriff of the county of Ontario, $284, being the amount of fines imposed by the court martial, received by the president. It appeared that the court martial was appointed by a brigade order, issued in July, 1818.

<p>This was an action on two policies of insurance, tried at the New-York circuit in November, 1829, before the Hon. Ogden Edwards, one of the circuit judges.</p> <p>The defendants, by two policies, insured six frame stores in Mobile, in the state of Alabama, against loss or damage by fire, to the amount of $13,600. By the policies, the stores were privileged to contain goods not hazardous, hazardous and extra hazardous. In each policy are contained clauses in these words: c< And it is agreed and declared to be the true intent and meaning of the parties hereto, that in case the above mentioned buildings shall, at any time after the making, and during the continuance of this insurance, be appropriated, applied, or used, to or for the purpose of carrying on or exercising therein any trade, business, or vocation, denominated hazardous or extra hazardous, or specified in the memorandum of special rates in the proposals annexed to this policy, or for the purpose of storing therein any of the articles, goods, or merchandise in the same proposals denominated hazardous or extra haxardous, or included in the memorandum of special rates, unless herein otherwise specially pro-aided for, or hereafter agreed to by this company in writing, to be added to, or endorsed upon this policy; then, and from thenceforth, so long as the same shall be so appropriated, applied, or used, these presents shall cease, and be of no force or effect.” And also: “ And it is moreover declared, that this policy is made and accepted in reference to the proposals and conditions hereto annexed, which are to be used and resorted to, in order to explain the rights and obligations of the parties hereto, in all cases not herein otherwise specially provided for.” The proposals referred to in the policy set forth eight classes of hazards, and the rates of annual premiums j the eighth class being thus described: “ Buildings entirely of wood. Goods not hazardous therein, 75 a 100 cents per $100.” Then follows an enumeration of goods considered not hazardous and of goods, trades, and occupations considered hazardous and extra hazardous, and also a special memorandum, in these words:</p> <p>“Not hazardous.' Goods not hazardous are such as are ,ysua^y kept in dry-goods stores ; including also household furniture and linen, cotton in bales, coffee, flour, indigo, potash, rice, sugars, and other articles not combustible.</p> <p>“Hazardous. The following trades, goods, wares, and merchandise, are considered hazardous, and are charged with cents per $100, in addition to the premium above named for each class, viz: Chair-makers, chocolate makers sail makers, tavern keepers, tobacco manufacturers, ship chandlers; china, glass, and earthenware, in packages ; booksellers’ stock, flax, hemp, groceries, including spirituous liquors, oil, pitch, saltpetre, tar, turpentine, confectioners, jewellers’ stock, milliners, musical instrument seller’s stock, pictures, prints, and watch-makers’ stock.</p> <p>“Extra Hazardous. The following. trades and occupations, goods, wares, and merchandise, are deemed extra hazardous, and will be charged 25 cents and upwards per $100g in addition to the premium above specified, for each class, viz: Apothecaries or druggists, boat builders, coach makers, soap boilers, tallow chandlers, cabinet makers ; carpenters in their own shops, or in buildings erecting or repairing; chymists, china, glass, and earthenware sellers, coopers, dyers, founders, musical instrument makers, and all manufactories requiring the use of fire heat, aqua-fortis, ether, spirits of turpentine, hay, straw, fodder, and grain unthreshed. Gunpowder is not insurable, unless by special agreement.</p> <p>“ Special Mem. Grist mills, fulling mills, paper mills, saw mills, and other mills, distilleries, bakeries, breweries, malt houses, varnish manufactories, printing offices, book binderies, and sugar refiners, will be insured at special rates of premium.”</p> <p>The premium paid in this case was $1,50 per $100. Within the time for which the buildings were insured, a fire happened. It commenced in one of the stores; and whilst it was consuming, a loud explosion took place, which the witnesses, judging from the shock and the effects produced» all concurred in stating their belief proceeded from powder deposited in the store. The store in which the fire commenced was entirely consumed, and four of the other buildings were more or less injured. At the time of the fire, there were also three kegs of powder in one of the other stores, which were removed during the fire. The stores in which were powder, were occupied by tenants of the plaintiff. The damage of the plaintiff was estimated at $6,050, the loss upon the building consumed being estimated at. $3000, the full sum at which it was insured. The testimony being closed, the counsel for the defendants prayed the judge to instruct the jury, that if the building in which the fire originated, was, at the time of the fire, used for the purpose of storing gunpowder therein, although it were without the knowledge or privity of the assured, the assured could not recover for the damage done to the building by the fire, in consequence of the restriction in the body of the policy, and in the proposals and classification of hazards therein referred to and annexed thereto. To this the plaintiff’s counsel objected, and insisted that the judge should instruct the jury, that even if there was gunpowder stored in the building in which the fire originated, without Ihe knowledge or agency of the assured, yet that the plaintiff was not barred from recovering the loss on such building. The judge charged the jury that the circumstance of there being gunpowder stored in the building previous to, and at the time of the conflagration, without the agency or knowledge of the assured, did not form a bar to the plaintiff’s recovery, and that the whole of the evidence adduced by the defendants to establish that fact was irrelevant, and not to be considered by them in forming their verdict. The defendants excepted to the charge of the judge, and the jury found a verdict for the plaintiff for $7432,08, including interest upon the estimated loss. The defendants moved for a new trial,</p>

In this case a judgment had been entered against the defendant in an action of debt on bond, and on application to the court, suggesting that the defendant, at the time of the execution of the bond, was a lunatic, an order was made staying the execution which had been issued, and that the defendant have leave to appear by his committee, and defend the suit upon the bond.

This was an action of assumpsit, tried at the New-York circuit in November, 1829, before the Hon. Ogden Edwards, one of the circuit judges. The defendants were copartners as merchants. Boyd, one of the firm, in the name of the firm, made and delivered to the plaintiffs a promissory note; at the making of the note, he was a minor within the age of 21. Boyd alone was taken on the capias, and the plaintiffs had proceeded in the suit, under the statute against joint debtors.

Motion to vacate rule for reference ordered by a circuit judge. The action was covenant, on a lease by a landlord against his tenant- The tenant had covenanted not to cut green or growing timber on the demised premises during the term ; to make all necessary repairs, during the term, at his own expense ; to keep the premises in tenantable repair, and at the expiration of the term, deliver them up in such repair. The plaintiff assigned breaches of each of those covenants.

The district attorney of Schoharie, in his account of services rendered, had taxed by a proper officer, eight days attendance at the courts of oyer and terminer, at the rate of five dollars per day, which the supervisors refused to allow, on the ground that he was entitled to make ¡such charge only when the attorney general also attended.

The defendants in an action of replevin asked leave to reply double to the pleas put in by the plaintiff to the avowry of the defendant. It was objected that the general statute as to giving leave to reply double, did not apply to the action of replevin, the pleadings therein being specially regulated by statutory provisions.

Motion to amend declaration. The defendant had sold lands to the plaintiff, and executed a deed with warranty.

An election of directors of the Mercantile Insurance Company of New-York was holden on the 10th January, 1831. Jacob Barker demanded to vote on 1290 shares of stock standing in his name on the books of the company, 1255 in his own right, and 35 as trustee for his minor children. His vote was challenged, and the challenge allowed by the inspectors.

Motion to elect one of two pleas. The action is debt on judgment. The defendant pleads ml tiel record, and a discharge under the insolvent act, exempting his body from imprisonment.

Motion to set aside default. This is an action against the defendant, as sheriff of Oswego, for the escape of one Bentley. The capias returnable in October, 1826, was duly served on the sheriff. Previous to the day of return of the writ, Bentley retained attornies to defend the suit, who, in May, 1827, ruled the plaintiff to declare. The plaintiffs’ attorney having possession of the writ, and not having filed it, disregarded the rule to declare.

<p>Motion for a mandamus. A certiorari was issued to justice of Seneca county, to remove a judgment rendered by him, into the Seneca common pleas. The certiorari was allowed by a supreme court commissioner residing in Ontario. certiorari was quashed by the common pleas, on the ground that the commissioner allowing the certiorari had no authority to allow it, and a motion is now made for a man- . damus, directing the common pleas to vacate the rule quashing the certiorari.</p>

_ Motion to open a default. On the 7th July, 1830, a notice was served by Cox on Williams, under the act to compel the determination of claims to real property, 2 R. L. 312, § 1, et seq. requiring him to assert his claim in the manner provided by law, a rule to appear and plead was entered, and on the 22d October his default was duly entered. About the middle of December, Williams was informed by Cox that such proceedings had been had that he was barred of his ■claim.

On motion to confirm an award- of arbitrators and for judgment, it was objected that notice of the application had not been given to the party sought to be charged, as was decided to be necessary, 5 Wendell, 102. It appeared that a term of this court had intervened since the publication of the award.

Motion to sum-join double. The plaintiff claimed that within the equity of the statute allowing a plaintiff to reply several matters to the plea of a defendant, and permitting a defendant to rejoin several matters to the replication of a plaintiff, he should be allowed to sum-join double to the rejoinder put in by the defendant. But,

The plaintiff having failed to bring on his cause to trial pursuant to notice, delivered a stipulation to try at the next circuit, and to pay the defendant’s costs. The costs were taxed and demanded, and not being paid, the defendant moved for judgment as in case of nonsuit.

Motion to set aside a sale under execution. The under sheriff of Genesee, on the 7th August, 1830, having in his hands three executions against the defendant, sold a lot of land containing 20 acres, on which were erected a flouring mill, saw' distillery, store, tw'o frame houses, two barns and out-houbl?sJ worth $10,000, for about the sum ofj $2646.

Order to shew cause of action. The defendant obtained an order to shew cause of action. The plaintiff made affidavit that the defendant was indebted to him in the sum of $700 for money paid. The defendant produced an insolvent discharge exempting his body from imprisonment, and made affidavit that the whole of the plaintiff’s demand, except $30, came within the operation of the discharge. Whereupon the commissioner made an order mitigating the bail to $60.

Question of costs. The defendant moved to change the venue, and the motion was denied, without costs. On the trial of the cause he obtained a verdict, and in the taxation of costs, claimed to be allowed for services in preparing and making the motion to change the venue. The question was submitted to the court whether his claim should be allowed.

Redemption of lands sold under execution. On the 26th August, 1829, the sheriff of Monroe, by virtue of an execution issued on a judgment rendered in 1823, in favor of the Bank of Utica against Palmer Cleveland and Solomon Cleveland, sold an undivided third part of a certain lot on the east bank of the Genesee river, on which a stone flour mill was erected, and struck off the same for the sum of $1505,41, to the plaintiffs in the execution, they being the highest bidders,…

On the same day a report of referees was filed, rule for judgment entered, and judgment-roll signed and filed. The defendants moved to , set aside the signing and filing of the judgment-roll.

Sheriff’s fees on execution. This was an action against the defendant as the attorney, who had issued afi.fa. for the fees of the sheriff of Erie, on the execution, and for the punter’s bill in advertising the real estate of the defendant for sale. The advertisement was commenced on the 9th September, 1828, sale to be on the 15th October.

A judgment was entered in favor of Bart v. Deamer, on a bond and warrant of attorney, Deamer was found a lunatic on a writ of lunacy, and McDermut was appointed his committee, who applied to this court and obtained leave to make up a feigned issue to try the question, whether or not, at the execution of the bond and warrant, Deamer was of unsound mind.

A motion was made to set aside a judgment, alleged to have been fraudulently entered on a bond and warrant of attorney, said to be satisfied. In opposition, the fraud and payment were denied, and it was shewn that the same matter was pending in the court of chancery, where proofs bad been taken, and the cause was ready for hearing.

This was an action of trespass quart clausum fregit, and for cutting and carrying away timber.

Motion to set aside default for not declaring. This was an action of replevin, and the default of the plaintiff for not declaring was duly entered. The plaintiff moved to set it aside on tbe ground of merits, excusing his default. The defendant objected that the plaintiff having failed to declare within the time prescribed by statute, he was entitled to judgment of discontinuance. 2 R. S. 350, § 24, 25, 5 Wendell, 136.

Motion to change venue. The defendants moved to change the venue from Clinton to Rensselear, on the ordinary affidavit of five witnesses residing in Rensselaer county, and txvo farther south.

The common pleas of Rensselaer dismissed an appeal from a justice’s judgment, because the commissioner who allowed the same had not added the Hile of his office to his signature, attached to the jural of the affidavit and to the allocatur of the appeal. In opposition to the motion to dismiss the appeal,it was shewn that the commissioner was a judge of the common pleas of Rensselaer county, of the degree of counsel in this court.

The common pleas of Columbia quashed a writ of certiorari removing a justice’s judgment into that court, for the cause that the affidavit upon which the certiorari was granted, did not sufficiently set forth the grounds upon which the allegation of error was founded.

Practice on verdict subject to opinion of court. This cause was tried at the Saratoga circuit in May, 1829, and by the direction of the judge, a verdict was found for the plaintiff for the undivided half of the premises claimed, subject to the opinion of this court on a case to be made.

The defendants moved to set aside a default for not pleadtng, and all subsequent proceedings, for irregularity, on the ground that the appearance of the defendants had not been entered, the action being replevin; and that the sheriff had made deliverance on the writ, when he had received a replevin bond with only one surety,

On a motion for retaxation of costs, the following directions were given to the taxing officer by the Chief Justice : A plaintiff is entitled to an allowance of two counts in his declaration on each cause of action. 2 R. S. 653, § 5.

The relator asked for a mandamus, directing the common pleas of Albany to set aside a verdict for irregularity, on the ground that the jury were not sworn as their names were drawn and called to try the cause in which he was interested, but were sw'orn at the opening of the court to try the several issues in which they should serve as jurors.

P, to vacate a judgment, on the ground that the affidavit on which a certiorari was obtained, removing a justice’s judgment in that court, was not served on the justice within ten days after the allowance of the certiorari. The justice made his return to the certiorari, and the certiorari, return, affidavit and bond required by statute, were filed in the office of the clerk of the county, previous to notice of argument.

Motion to set aside an execution on the allegation of payment of judgment. The defendant being indebted to the plaintiff in a judgment, made a note for $200, and signed to it the name of a mercantile firm, of which he was a member, viz, H. B. & J. B. Mathews, and delivered the note to the plaintiff for the purpose of raising money to apply on the judgment.

Motion to vacate order. This cause ivas referred on the 9th June, and noticed for hearing before the referees on the 7ill July, on which day the defendant, on an affidavit that a material witness was absent, and would probably be absent for three months, obtained an order from the recorder of Nevv-York postponing the hearing until the 7th October next.

Motion to vacate attachment. The attachment was applied for by a firm. In the application it was stated that Hol-Mngshead was justly indebted to them in the sum of §500 ctnd upwards, over and above all discounts; and that he had secretly departed from, or kept himself concealed within the state, with intent to defraud his creditors, or to avoid the service of civil process. The application was verified by the affidavits of one of the firm, and of two disinterested persons.

Costs against administrator. The action was on a promissory note given by the intestate.

Motion to vacate a judge5s certificate that title to land came in question, under which the plaintiff had taxed costs, and that the defendant be allowed to tax costs against the plaintiff The action was covenant; the defendant had demised certain premises to the plaintiffs to which he had no title, and the plaintiffs were not able to obtain possession.

<p>One of several defendants may apply for costs against a plaintiff for not try» ing his cause pursuant to notice, on shewing the assent of his co-defend. ants for him to apply separately, or their refusal to unite with him in the application.</p>

A return having been made by the defendants to an alternative mandamus issued in this case, and the counsel for the relator being about to examine and discuss it for the purpose of shewing that the relator was entitled to a peremptory mandamus, the counsel for the defendants objected that he was not entitled to be heard at a non-enumerated term; that applying for a peremptory mandamus, he virtually demurred to the return, and that a demurrer could be urged only at a stated…

Rule for judgment on inquiry. A writ of inquiry of damages and the inquisition thereon were filed, and rule for judgment entered on the 15th July, and on the same day the judgment was signed, and judgment roll filed, and the execution issued. A motion was made to set aside the entry of the judgment and execution, for irregularity.

In September, 1826, a fieri facias was issued on a judgment obtained in the preceding August in this cause, directing the sheriff to levy the sum of $350,93. Personal property of the defendant to an amount sufficient to satisfy the execution was levied upon by the sheriff. The execution was returnable in October, 1826.

In June, 1827, the trustees of the village of Rochester passed a resolution to widen a street, and in carrying the resolution into effect, part of a building then erecting, called the Globe Building, was taken; the owners consenting to the alteration of the street, upon payment of damages.

<p>The acceptance by a tenant of a new lease of the same premises, during the term of the first lease, is deemed a virtual surrender of the first lease. Such presumption arises from the acts of the parties, which are supposed to indicate an Intention to that effect; but when such intention cannot be presumed, without doing violence to common sense, the presumption will not be supported.</p> <p>Where, in a lease executed by both parties, is contained a covenant that on the lessee’s being removed from the demised premises, or dispossessed, he shall be paid the value of the buildings and improvements made by him, and that on such payment he shall yield up the possession of the demised premises, an agreement by the lessor will be implied, that the lessee may retain possession until such payment be made, notwithstanding that the term for which the premises were demised has expired.</p>

<p>Where, after a suit in chancery had progressed to an order of reference to a master to state an account, the complainant assigned all his estate and effects as an insolvent debtor, and it was then agreed between the solicitor for the complainant and the defendant, to submit the question to the master, whether the suit could be further prosecuted or not, and if he should be of opinion that it could not, then it was agreed by the solicitor, as the attorney and of counsel for and acting on behalf of the holders and owners of certain acceptances, the subject matter of the suit, on the one part, and the defendant on the other, that all claims and demands upon or relating to the acceptances, and all matters of set-off should be referred to the arbitrament of the master, and in case of any sum being awarded to be paid by the defendant, time should be given him for the payment of the same, until a certain day; and the master determined that the suit did abate by the assignment, that the plaintiff was the true and lawful holder of the acceptances, that the defendant was bound to account to him for the monies in his hands, belonging to the drawer of the bills at the time of the acceptances, that each party should pay his own costs in the suit in chancery, and that the expense of the arbitration should be bone by them equally; it was held, notwithstanding a plea of the assignment of the estate and effects of the plaintiff previous to the making of the award, that the award directing payment to him was good, that the arbitrator had not exceeded his authority, that the day of payment having been agreed on in the submission the omission to specify it in the award was immaterial, and that the order in relation to costs, if not within the submission, being void only pro tanto, did not destroy its validity as to the residue.</p> <p>Where a defendant pleaded non-assumpsit and three special pleas, and the plaintiff put in a general demurrer, it was held, that such demurrer did not apply to the plea of the general issue, the demurrer purporting to be an answer to the several pleas of the defendant, by him pleaded to the first, second and third counts of the declaration, and the plea of the general issue being to the whole declaration, and not specifically to either count.</p>

<p>This was an action of assumpsit tried at the New-York circuit in October, 1828, before the Hon. Ogden Edwards, one of the circuit judges, and a verdict entered for the plaintiffs for $5,709,58, subject to the opinion of the court on a case made, with an agreement annexed, that a nonsuit should be entered, if the court should be of opinion that the plaintiffs were not entitled to recover.</p> <p>The action was brought on two promissory notes, amounting together to $4,716,44, dated 20th of July, 1825, payable 90 days after date, to William Chapman, made by the defendants, and endorsed by him. The suit was in the names of the plaintiffs as endorsees of Chapman ; the plea" was the general issue. . The consideration of the notes was the purchase by the defendants of the plaintiffs, as the brokers of Q^apman, of two bills of exchange of ¿£500 sterling each, dated 18th July, 1825, payable in London, 60 days after sight, drawn on Messrs. Wainright and Shiels, of Liverpool, by one William H. Stansbury, in whose name Chapman carried on certain mercantile operations, payable to E. Wainright, one of the firm of Wainright and Shiels, and endorsed by him. The bills were protested for non-acceptance and non-payment, in consequence of the drawees having stopped payment about the middle of August. At the time of their failure, the whole amount of funds in their hands, applicable to the bills drawn by Stansburry, was only ¿£149 10s. 11 d. This firm made an assignment of their property for the benefit of their creditors, and their estate yielded 16s. 3d. in the pound. Previous to the drawing of the bills, Chapman had made various shipments of cotton from New-York to Liverpool, consigned to the firm of Wainright and Shiels, and representing to Wain-right, one of the firm, who was in New-York, that he had funds sufficient in the hands of his firm at Liverpool, to meet the two bills of exchange drawn by Stansbury, induced Wain-right to endorse the bills, who endorsed them for the accommodation of Chapman, to enable him to raise funds in New-York. Accounts of the failure of Wainright and Shiels were received in New-York about the' 27th of September, which caused an immediate stoppage of E. Wainright in New-York. On the 6th October, an arrangement was entered into between Chapman and C. Swan, in behalf of himself and his partner, T. Swan, whereby it was agreed on the part of T. & C. Swan, that they would return to Chapman the two bills of exchange purchased by them, and pay him in 60 days from the return of the bills, the sum of f 1000 ; and that Chapman should have the right to enforce the bills against Wainright and Shiels for his own benefit, without recourse, however, to T. & C. Swan ; and on the part of Chapman, it was agreed to return to T. & C. Swan the notes made by them on the purchase of the bills. On the 5th December, T. Swan, who was in Liverpool, made an arrangement with Shiels, one of the firm of Wainright and Shiels, in consideralion of receiving from him payment of two bills held by him and his partner, drawn by E. Wainright, on the firm of Wain-right and rShiels, one for £1500, bearing date, New-York, June 22, 1825, and the other for £1000, bearing date New-York, July 5, 1825, that he would not claim payment from them ox from E. Wainright, of the two bills drawn by Stansbury, reserving only the right to claim payment from Stansbury. The bills drawn by Stansbury were protested for nonpayment in London, on the 24th October, 1825, and were not received by C. Swan in New-York, until about 11th February, 1826, the ship Pacific, in which they were returned from Liverpool, having had a long passage of sixty days. On the last mentioned day, C. Swan tendered the bills of exchange and $1000 in cash to Chapman, and demanded the notes of himself and partner, in pursuance of the arrangement of 6th October, 1825. Chapman said he had not the notes in his possession, and refused to give any information respecting them. The notes were found in the posseision of the plaintiffs in this cause, to whom the same tender of the bills of exchange and $1000 was made, which they refused to accept, and also declined to give up the notes, claiming to hold-them on account of unsettled demands they had against Chapman. The evidence in relation to the claim of the plaintiffs to the notes is as follows: The plaintiffs were the brokers of Chapman, sold the bills, and received the notes of the defendants, which they negotiated, and credited the proceeds to the account of Chapman, he being at that time indebted to them in that amount. Shortly before the maturity of the notes, they, at the request of Chapman redeemed the notes with other notes of Chapman, with a new endorser, at an extended credit, by paying the interest. The plaintiffs allege, in an answer toa bill in chancery filed by the defendants, and which was produced by them as evidence on the trial of this cause, that they hold the notes by the consent of Chapman, given before his failure, (which took place in January, 1826,) and before any offer to return the bills by the defendants, as a security in part for a large sum of money due to them from Chapman, and for which they hold no other security. In a supplemental answer also produced in evidence, they say , that at the time the notes of the defendants came into their hands a second time, Chapman was largely indebted to them for monies previously advanced by them to him, and authorized them to hold the notes in part satisfaction or security for such indebtedness, whereby they acquired a beneficial interest in the notes prior to their coming to maturity. The period of their acquiring an interest in the notes by the consent of Chapman, according to the testimony of Chapman, he being produced as a witness by the plaintiffs, was after a sufficient time had elapsed for the return of the bills from Eng~ land. Chapman further testified, that after waiting what he thought a reasonable time for the return of the bills from England, he frequently called at the counting house of (he defendants, and offered to carry into effect the agreement of October, 1825, and continued such offers, and was at all limes ready to carry into effect such agreement, until about the 20th January, 1826, when, having become embarrassed, he was compelled to stop payment. He however testified, that on the day the notes fell due, he left them in the hands of the plaintiffs, as collateral security for a debt he owed them, but admitted that subsequent to that time he went with the notes, which he borrowed from the plaintiffs, to the defendant C. Swan, and offered them to him in exchange for the bills and the $1000; and he further testified that the agreement of the 6th October was made with the knowledge and assent of the plaintiffs, or of one of them, they having had knowledge of the same, either on the day that the agreement was made, or a few days thereafter. It was also proved, by another witness, that in the months of Jfovember and December, 1825, Chapman several times called at the store of the defendants, stating that he had come to deliver up the notes, and receive the bills of exchange.</p> <p>The case was argued by</p>

This was an action for false imprisonment, tried at the Orange circuit in April, 1829, before the Hon. James Emott, then one of the circuit judges. The declaration was in the usual form, and the defendants severed in their defence. The plaintiff was arrested on a warrant, issued under the fifty dollar act, by Moores as a justice of the peace, at the suit of Mulliner.

This was an action of trover, tried at the New-York circuit, in January, 1828, before the Hon. Ogden Edwards, one of the circuit judges. - The plaintiff produced a bill of lading signed by William Collins, master of the brig Dove, at New-Qrleans, 27th August, 1825, acknowledging that Bridge <$• Vose had shipped on board the brig bound to New-York, 179 pigs of lead, weighing 12012 lbs. to be delivered at the port of New-York, (the danger of the seas only excepted,) unto…

This was an action of assumpsit, tried at the New-York circuit in October, 1829, before the Hon. .William A. Duer, then one of the circuit judges. The suit was against the defendant, as the endorser of a promissory note, given by P. G. Hildreth to Edmund Elmendorf, and transferred by him to, the plaintiff after due.

<p>The want or illegality of consideration of a note transferred before due cannot be shewn in an action by a bona fide holder without notice, except where the note is declared void by statute, as when given upon an usurious consideration, or for money lost by gaming; and it was accordingly held, in an action by such holder, that the defence could not be set up that the note was delivered as an escrow.</p> <p>Evidence that a note was delivered as an escrow, and that it was fraudulently put in circulation, is admissible, and when the fact is shewn, the holder will he bound to prove that he came fairly by the note, and paid value for it.</p> <p>A note given on the purchase of real estate, held adversely, is not void by statute.</p> <p>Where a note is adjudged void by a court for the want, or failure, or illegality of the consideration, it is void "only in the hands of the original holder, or of those who are chargeable with, or have had notice of the consideration.</p> <p>In an action against a firm, on a note made by one of the partners in the partnership name, it is not incumbent on the plaintiff, in the first instance, to shew that the note was given for a partnership transaction.</p> <p>Where a promissory note is stated in a declaration to have been made by the defendants, proof that it was made by one of a firm in the partnership name, supports the declaration.</p>

<p>Error from the superior court of the city of New-York. The company insured Langdori against loss or damage by fire, to the amount of $2000, upon a three story brick building, with slate roof, situate at the comer of two streets. The house was burnt down within the time for which it was insured, and Langdon brought a suit against the company to recover for the loss. The policy contained the usual clause suspending its operation in case the building should, during the term for which it was insured, be' appropriated, applied, or used, for the purpose of carrying on or exercising therein any trade, business, or vocation, denominated hazardous or a extra hazardous, or specified in the memorandum of special rates, in the proposals annexed to the policy; or for the purpose of storing therein any of the articles, goods, or merchandise, in the same proposals denominated hazardous or extra hazardous, or included in the memorandum of special rates, unless in the policy otherwise specially provided for or subsequently agreed to. The description of trades, occupations, goods, wares, and merchandise, denominated hazardous and extra hazardous, and the memorandum of special rates specified in the proposals in this case, is almost identically the same as in the proposals of the Sun Fire Insurance Company, which may be seen, ante, p. 490, and by which spirituous li~ quors, oil, &c. are classed amongst merchandise denominated hazardous. The building insured belonged to the second class of hazards, the annual premium upon which was 25 cts. per $100, and hazardous trades and goods were chargeable, by the proposals, with 12} cts. per $100, in addition to the annual premium. The premium charged in this case was 25 cts. per $100. The plaintiff proved, by the surveyor of the company, the report made by him to the company, containing a description of the building insured, in which the first story was described as “to have (the building then being erecting) one room with fire-place, the store, entry, and stairs and by other witnesses, that the manner in which the store part was built, and its situation, being a corner house, indicated that it was intended as a grocery store at the time the building was erected. The fire which destroyed the building originated at a distance from it, and reached it by running along the roofs of the intermediate buildings, until it came in contact with the upper part of the building in question.</p> <p>On the part of the defendants it was proved, that at the time of the fire, a tenant of the plaintiffs occupied the store on the front floor, and the cellar under the same; he kept a family retail grocery in the store, and had on hand in the store and cellar, at the time of the fire, various kinds of spirituous liquors, oil, and other articles usually kept in retail grocery stores; he generally kept all kinds of spirituous liquors ; he used the cellar to put in such goods as were intended to be retailed in the store. When the fire happened, he had in the cellar one cask of oil, one barrel of rum, one cask of Jamaica spirits, one pipe of gin, some molasses, and some potatoes. He generally retailed his goods from the store, and kept a part ■ of his stock there for that purpose, and replenished his stock in the store from that in the cellar, as occasion required. The oil in the cellar remained in the original cask, but all the casks of liquor had been more or less drawn from for the use of the store. The liquors he had in the store were drawn from those casks, and he had only a barrel or cask of each article, out of which that in the store was taken. All the goods, as well in the cellar as store, were purchased and kept for the purpose of selling out by retail, in small measure or parcels, in the store. The goods in the store were all removed after the building took fire, but before the roof fell in; the goods in the cellar were all consumed by the fire. The defendants then offered to prove that it was, and always had been the uniform custom among the underwriters on fire policies used in the city of New-York, in all cases where retail grocery stores are intended to be insured, if in such stores it is the intention of the assured to keep spiritous liquors for sale by retail, to state that such privilege is granted, either by inserting the same in the body of the policy, or by an endorsement thereon, or by some other memorandum in writing; which evidence was rejected by the court. The court charged the jury that the keeping the grocery store in the building, and using the store and cellar for the purpose of carrying on therein the business of a retail grocery store, and for the purpose of keeping therein for sale, in such retail grocery store, the oil, spirituous liquors, rum, and gin, as had been testified to, was not a violation of the contract on the part of the plaintiff; and that the keeping the oil and spirituous liquors in the store and cellar for the purpose of sale, was not a storing within the intent and meaning of the policy; and that the evidence offered was not sufficient to bar the plaintiff of his action. The jury found for the plaintiff, with $2070 damages, on which judgment was rendered. The defendants sued out a writ of error,</p>

Demurrer to plea. The plaintiff declared on a penal bond, and assigned breaches. The defendant craved oyer of the bond, and set it forth in his plea.

The recorder of Hudson, on the application of Pulver, for a discharge under the insolvent act to exempt his body from imprisonment, made an order for the creditors of Pulver to shew cause before him, at his office, on the tenth day of December, 1828, at ten o’clock in the forenoon, why such discharge should not be granted.

Error from the Orange common pleas. This was an action of trespass for entering upon the lands of C. Thompson, for the purpose of opening and working a public highway.

This was an action of assumpsit, tried at the Albany circuit in September, 1829, before the Hon. William A. Duer, then one of the circuit judges. The declaration contains four counts.

Demurrer. The declaration contains two counts in assumpsit on a special agreement.

Certiorari. Chambers sued M’Cartee and three others in a justice’s court in the city of New-York, for work and labour. The defendants pleaded in abatement that 17 other persons ought to have been joined with them as defendants. The plaintiff took issue upon the plea in abatement, and the cause was tried by a jury, who found a verdict for the plain * tiff, and assessed his damages at ten dollars, for which judgment was rendered.

<p>This was an action of trespass, quare clausum fregit, tried at the New-York circuit in March, 1829, before the Hon. Ogden Edwards, one of the circuit judges.</p> <p>The suit was brought for removing a fence erected by the plaintiff in April, 1823, enclosing an area of 27 feet by 80, in Washington street, in the city of New-York. The fence was removed by the defendant, by order of the common council of the city, on the 2d August, 1824, the defendant being at the time superintendent of repairs of the city, and a taxable inhabitant and citizen of New-York. The title to the locus in quo was admitted to have been originally in the father of the plaintiff, and that the plaintiff had become seised of it under the will of his father, unless it should be adjudged «to have been 'legally appropriated as part of Wash-' ington street. These are the facts in the case : In 1778, the corporation of New-York conveyed to Trinity Church a tract of land lying between Murray and Warren streets, and extending westerly from Greenwich street, then called First-street, into the Hudson river, 20Ó feet below low water mark, with the reservation that the grantees should leave a street of 66 feet in breadth all along high water mark, the whole breadth of their grant, to be called by the name of Greenwich or First street; that at the distance of 160 feet, which was deemed to be low water mark, they should leave another street of 40 feet in breadth, to be called Second street; and that at the westernmost part of 200 feet beyond low water mark, they should leave another street of 40 feet in breadth, to be called Third street. In 1796, the corporation of Trinity Church conveyed the same premises, sub-, ject to the above reservations, to William Denning, the father of the plaintiff—one third to himself, and two thirds in trust for George Clinton and John M’Kesson. On the 8th" October, 1804, the common council of New-York resolved that the street commissioner report to the board a plan for widening Washington street, (in the above deeds described as Second street,) by adding to the west side therof so as to make it sixty feet ivide as far southward as conveniently might be. On the 29th October, 1804, the street commissioner made his report, and submitted a map on which Washington street, northward from Courtlandt street, was laid down as sixty feet wide, recommending the increased with to be taken from the lots on the west side of the street; which report was on the same day confirmed, and an order made that a copy of the plan be kept at the office of the street commissioner for public examination, and that the street commissioner cause an order to be publisheed to that effect. On the 31st March, 1809, partition of the premises conveyed to Denning was made, by deed between him, George Clinton, and John M’Kesson, the heir of John M’Kesson the cestui que trust, by which certain lots were vested in them in severalty. Attached to the deed of partition was a map, to which the deed referred, and on which Washington street was laid down as being 40 feet in width. Eleven lots were assigned to Williana Denning, seven of which bounded on Washington street, four on the east, and three on the west side of the street. On the 2d September, 1811, the street commissioner made a report on a petition for paving Washington street from Murray to Warren streets, that the proprietors of the ground adjoining the street were absent from the city, and that therefore their signatures to the petition could not be obtained; that the street was almost impassible; and on the same day an ordinance was passed, directing Washington street to be regulated and paved from Murray street to Warren street, and appointing assessors to make an estimate and assessment of the expense thereof, among the owners and occupants of the houses and lots of ground to be benefitted thereby. On the 9th December,‘1811, a report made by the assessors of their assessment for regulating and paving the street, was confirmed by the common ■ council, in which assessment §42,14 was charged upon each of the seven lots of Denning, fronting on Washington street. The above facts, in relation to the proceedings of the common council, were shewn by the production of the orginal minutes of the corporation, which were objected toas inadmissible evidence, but received by the judge, subject to the opinion of this court. The street was paved sixty feet wide in 1811, and William Denning, the father of the plaintiff, paid the assessments upon his property. The street remained open, paved and regulated until 1833, when the fence was erected, for the removal of which, this action was brought. When the street was paved and regulated in 1811, there was’ a fence, or the remains of a fence, on the westerly side of the street on the premises in question, conforming to the present line of the street, and the adjoining lots then were in fence also, conforming to the sixty feet street; and previous to the street being paved in 1811, it was used and occupied asa public street of the same width at which it was established in 1811; four witnesses concurring in stating that it had been so used and occupied for 25 or 30 years before the trial. The defendant also produced in evidence a bill in chancery, filed in 1814 by William Denning, the father of the plaintiff, against jypKesson, and the heirs of George Clinton, to set aside the partition made in 1809, and to have a new partition made, °n negation that M’Kesson had defrauded the complainant in making the partition on the basis that Washington street was only 40 feet in width, when M’Kesson knew that the corporation of New-York had widened the street to 60 feet, although he, the complainant, was ignorant of the fact. The bill contained a further statement, that the block lying west of Washington street, under the authority of the corporation, had been extended from the westerly side of Washington street as widened, whereby Clinton and M’Kesson were great gainers, whilst the complainant was confined to 155 feet; that by the partition deed, the extent of the complainant’s lots on" the west side of Washington street was 155 feet; that after discovering that the street had been widened, he took possession of the 155 feet west from Washington street, and that an action of ejectment was commenced against him by George Clinton, for the recovery of twenty feet of the westerly part of the 155 feet. The defendant also produced a deposition of the plaintiff in this cause, made as a witness in the chancery suit of his father against M’Kesson and others, on 6th May, 1816, in which he testified that he became acquainted with the fact of widening of Washington street about two years after the partition in 1809, and informed his father of the same. The bill in chancery and deposition were received in evidence, subject to the exception of the defendant. In 1817 the partition was confirmed by a decretal order of the chancellor. Shortly thereafter, William Denning, the elder, caused the strip of land taken from his lots for the widening of the street, to be surveyed, and stakes to be driven, so as to define the boundaries thereof, according to the partition deed; but before any further measures were adopted for asserting his rights, he died, to wit, in October, 1819. In 1820, the executors of William Denning, deceased, applied to the corporation, either to restore the land taken in widening the street, or to make compensation therefor. The counsel of the board advised that it was not expedient to take any order on the subject, and after another ineffeclual application, the executors caused the fence to be erected which was removed by the defendant. The defendant also produced a grant from the corporation to George Clinton, made 25th March, 1811, of land under water, opposite the premises originally conveyed to Trinity Church; and a deed from the plaintiff and his co-executor, bearing date 23d March, 1821, conveying to purchasers the lots bounding on the west side of Washington street, adopting the west line of the street as paved in 1811. A verdict by consent was found for the plaintiff with nominal damages, subject to the opinion of this court upon a case to be made.</p>

This was an action of assumpsit, tried at the Madison circuit, in September, 1829, before the Hon. Samuel Nelson, then one of the circuit judges. The declaration contained a count on a bill of exchange, dated at Liverpool, 27th April, 1824, for ¿£79.15.0 sterling, drawn by the defendant, on W. W. Dublin, payable three months after date, to his own order, in London, and endorsed by him.

<p>A renewal of an execution need not be signed by a justice. Any memorandum in the hand writing of the justice, upon any part of the execution, clearly indicating his intention to renew it, accompanied by a re-delivery of the execution to the constable, is sufficient, although the name of the justice be not subscribed to such memorandum.</p>

This was an action of ejectment, tried at the Washington circuit in June, 1829, before the Hon. Esek Cowen, one of the circuit judges.