Volume 7 — Barbour's New York Supreme Court Reports

This was an indictment for feloniously and maliciously girdling and damaging and destroying fruit trees, and was tried at the Jefferson county oyer and terminer in February, 1849, before Justice Mason.

This was an action of assumpsit, originally commenced in the court of common pleas of Jefferson county. The declaration was in the usual form, containing the common money counts, alledging a joint indebtedness of the defendants; to which was attached a copy of a note in these words: “Watertown, 13th May, 1840. Eighteen months from date, for value received we promise to pay P. C. Moulton or bearer, at our store, two hundred dollars and interest. H. W. Woodruff. §200.

Appeal, by the defendant, from the county court of Herkimer county. The suit was originally commenced before a justice of the peace.

<p>W.,, one of two mortgagors, by an arrangement with P., the other, assumed the payment of the mortgage debt, and thereupon executed a new mortgage upon the same and other premises, to C. the holder of the original mortgage, which new mortgage was given to secure an individual debt of W. and also the balance due upon the joint mortgage. The joint mortgage was not extinguished, but was kept alive as a collateral security to the second mortgage. W. subsequently assigned his property to assignees, for the benefit of his creditors. The assignees advertised the mortgaged premises for sale, and sold it free from incumbrances, M. becoming a purchaser of a portion thereof. By an arrangement between M. and C. and the assignees, the sum due upon the second mortgage was then secured by M. to C., the owner thereof, which' security C. received in payment of the new mortgage, and receipted the amount to the assignees. C. then assigned. the original mortgage to M. On a bill by M. to foreclose the original mortgage,</p> <p>Held, 1. That the arrangement between M., C. and the assignees, for securing to C. the payment of the second mortgage, amounted to a payment and satisfaction of that mortgage.</p> <p>2. That by the payment of the amount due upon the second mortgage, the original mortgage was substantially paid to C. and satisfied, and became fwnctms officio ; and that C. had no power to transfer it, as a subsisting security, so as to authorize BL, the assignee, to file a bill to foreclose it.</p> <p>Although equity will sometimes keep alive a mortgage which has been substantially satisfied, yet, whenever this is done, it is. for the advancement of justice, and never to aid in the perpetration of a fraud through the forms of law. Per Gridley, J.</p>

The above named Hiram Carpenter and Joseph L. Snow presented a petition to Willard, justice, at chambers, under 1 R. S. 124, § 50, et seq., for an order, that George G. Scott and Cyrus Perry, late commissioners of loans for Saratoga county, deliver over to the petitioners the books and papers in their custody, appertaining to the said office.

Ejectment, tried at the Cayuga circuit in April, 1848, before Sill, justice. The plaintiff claimed to recover one undivided fourth part of certain premises, being part of lot No. 78 in the town of Brutus, in the county of Cayuga. The cause was tried, by consent of parties, before the justice without a jury.

This was an action brought to recover damages for a breach of warranty on the exchange of a horse of the defendant for a span of horses of the plaintiff. The cause was tried at the Tompkins circuit in September, 1848, before Justice Morehouse. The trade was made between the plaintiff and one Gifford, the agent of the defendant. The defendant refused to ratify the trade, claiming that the agent had transcended his authority, and that he, the defendant, was not bound.

This was an action brought to recover the sum of $317 with interest from the 15th day of August, 1847, claimed to be due from the defendant to the plaintiff.

This was an action to recover damages for fraud upon the sale of a tavern stand and premises, on the 4th of March, 1840, situated in the town of Oxford, in the county of Chenango. The cause of action principally relied on was for stating that the premises were bounded on the southerly or south-westerly side by a certain mill race; whereas, it was charged and alledged, the same did not extend to the mill race, and that the defendant well knew the same.

Chapman sued Fuller and Wark before a justice in trespass de bonis asportatis, for a stove. The defendants pleaded the general issue, and gave notice that they would justify under a judgment and execution in favor of one Conant against Chapman, which was rendered for the purchase money of the stove. The judgment was recovered in a justice’s court on the 27th day of June, 1845, for over $40, and the execution was issued thereon to Wark, a constable, on the 2d day of Oct. 1845.

Eddy sued Dolittie in a justice’s court, in trespass, alledging that he was in possession of a sawmill, and that the defendant entered and forbid the plaintiff’s sawyers working in the mill, by which he was turned out of the use of the mill.

<p>Requisites of an answer, under the Code of 1848.</p> <p>Although the forms of pleading previously in use are not now applicable, particularly as to the classification of actions, yet the manner of stating the claim or defense, as required by the code, with that exception, and that of certain formal parts, still remains. The pleader may use his own language; but the pleading must contain the necessary matter, and it must be stated in an intelligible, issuable form, capable of trial. Per Hand, J.</p> <p>Pacts must still be set forth according to their legal effect and operation, and not the mere evidence of those facts; nor arguments; nor inferences; nor matter of law only. Per Hand, J.</p> <p>Nor should pleadings be hypothetical; nor in the alternative ; nor destitute of truth and certainty. Per Hand, J.</p> <p>Section 129 of the code of 1848 (corresponding with § 150 of the amended code,) is a statutory inhibition against duplicity, in stating two defenses together. Each defense, or ground of defense, must be separately stated. And this, it seems, applies to more than one defense to the same cause of action, as well as to different defenses to different causes of action.</p> <p>As a general rule, a pleading, to he good by the settled principles of pleading as modified by the code, must state the facts constituting a legal cause of action, or ground of defense. And these should be set forth in a plain, direct, definite, certain, and traversable manner, and according to their legal effect.</p> <p>Any number of facts constituting one cause of action, or one defense, may be combined ; but each cause of action, and each defense, should be stated separately, so as to be capable of trial.</p> <p>Method of pleading a right of way.</p> <p>A party having a private way, cannot justify going ext/raviam, because the road is impassable.</p> <p>A plaintiff, by going to trial upon the answer of the defendant, admits it to be true, so far as the matter is set out issuably. But that admission does not aid a defect of substance, or prevent the plaintiff from taking advantage of it upon the trial.</p> <p>If a good title be defectively set out, U seems the plaintiff can not, under the 204th section of the code, make the objection on the trial. But where the title itself, as set out, is defective, or where in truth none is set out, the case is different.</p>

In Enurry. On the 14th of August, 1816, Thomas Yan Zandt, being seised in fee of a block of ground in the city of Albany, bounded east by South Pearl-street, south by Beaver-street, west by Market-square, and north by the public market, executed a deed of trust, whereby, out of the great affection and love which he had for his sister Hannah Yan Antwerp, wife of Daniel L. Van Antwerp, and Alida Yan Antwerp, William V. Z. Van Antwerp, Henry Van Antwerp, Stephen Lush Yan…

Larue sued Rowland before a justice of the peace for a quantity of manure sold and delivered to him. The defendant pleaded the general issue, and gave notice of set-off. Upon the trial, the plaintiff proved that the defendant had of him seven loads of manure, worth three shillings per load. The defendant, who is a physician, offered an account against the plaintiff, as a set-off.

This was an action of replevin, tried at the Greene circuit, in April, 1849, before Justice Wright. It appeared upon the trial, that on the 16th of November, 1846, the canal boat William Henry, having on board 18 bales of wool belonging to the defendant, while being towed down the Hudson river, was sunk in the channel of the river near four mile point, in the county of Greene, in consequence of a collision with a steamboat.

This was an appeal from the decree of the surrogate of Albany, upon the final settlement of the accounts of Jacob Mesick, the appellant, and the respondents Stephen Mesick and Henry Van Denburgh, as executors of the will of Thomas Mesick, deceased. The will was executed on the second day of April, 1840.

This was an action of trespass for taking and selling the plaintiff’s horse. The defendant was collector of the town of Sand Lake, in the county of Rensselaer, and justified the taking, under a collector’s warrant issued in December, 1845. The trial was had before Justice Watson, at the Rensselaer circuit, in November, 1847.

This was an action of trespass for taking and disposing of personal property. It was tried at the Rensselaer circuit in February, 1849, before Justice Harris. It appeared upon the trial, that the defendant Sharp was collector of the town of Greenbush, and had taken the property in question, to satisfy a tax against the plaintiff. The defendant Witbeck was supervisor of the same town, and, as such supervisor, had signed the collector’s warrant.

This was an action of assumpsit, tried at the Rensselaer circuit, in November, 1846, before Parker, circuit judge. The plaintiffs gave in evidence a draft for $1000, dated Troy, July 2, 1845, drawn by Peter Comstock, upon Allen Comstock, Burlington, Vt., payable twenty-five days after date to the order of Baker & Cameron, by whom it was indorsed. The draft was accepted payable at the Bank of Burlington. Cameron alone defended the suit.

<p>Appeal from an order of the surrogate of the county of Oneida. The facts are stated in the opinion of the court, and need not be repeated.</p>

This was an action of assumpsit, brought against the defendant upon his subscription for $200 to the capital stock of the plaintiffs’ company, to recover the amount of three several assessments made upon the stock owned by the defendant. The declaration contained four special counts, and a fifth consisting of the usual money counts condensed; to which was added a count upon an insimul computassent. The defendant pleaded the general issue, and gave notice of special matter.

Motion by the defendant for a new trial, upon a bill of exceptions. The action was assumpsit, upon a written contract. Plea the general issue. The cause was tried at the Madison circuit in December, 1848, when the jury found a verdict for the plaintiff, for $113.

Motion, by the plaintiff, to set aside the report of a referee, by which it was found that there was nothing due from the defendants, as executors of Stephen Rose, deceased, to the plaintiff. The facts are sufficiently detailed in the opinion of the court.

The action was assumpsit, brought to recover the amount of a promissory note made by C. N. Griffin, on the 27th of October, 1840 for $2,000, payable three months after date to the defendant Palmer or order, and indorsed by him. The cause was tried at the Oneida circuit in October, 1848, before Justice Shankland. On the trial the signatures of the maker and of the defendant as indorser were admitted by the defendant’s counsel.

This was an action of trespass, brought by the plaintiff against the defendant, to recover damages for seizing and taking certain goods, wares and merchandise at the town of Chateau-gay in the county of Franklin, about the 6th day of September, 1847.

This action was brought to recover the rent of certain premises in the city of Oswego; the plaintiffs counting specially upon a demise alledged to have been made in January, 1845, for a term of one year, to commence the first of May thereafter, at the yearly rent of $450, payable quarterly, and also for the use and occupation of the same premises. The cause was tried before a referee.

This cause came on for -argument on demurrers put in separately, by Low and Artcher, to the complaint.

Demurrer, by the relators, to the return of the defendants to a writ of mandamus. The facts are stated in the opinion of the court.

Charles W. Foreman, deceased, being an infant, and being seised of certain lands in the county of Onondaga, by his general guardian Laban Hoskins, presented a petition on or about the 21st day of July, 1834, to the vice chancellor of the seventh circuit, for the sale thereof.

The bill in this cause was filed for the partition of three several pieces of land, of which it was claimed that the parties were tenants in common, as the heirs, and grantees of the heirs, of Abraham Vanderwerker, a deceased brother of the plaintiff, who died in the fall of 1841, intestate. The title of Abraham Vanderwerker to the lands in question was derived from the last will and testament of his father Hendrick Vanderwerker, bearing date June 9, 1815.

In Eq.uity. The bill in this cause was filed to obtain thé decision and direction of the court as to the construction of certain parts of the will of Laurent Salles, deceased. The testator died in 1833, leaving property of the value of about twelve hundred thousand dollars, one hundred thousand of which was in real estate, and the residue was in stocks, bonds and mortgages, and other personal property.

A lease of land lying in the city of Buffalo was executed by Louis Le Couteulx to Samuel Johnson, by which a term was created, commencing on the first day of May, 1835, to terminate on the first day of May, 1865, and by which an annual rent was reserved, to be paid by Johnson. The plaintiff became the owner of this lease, and entitled to the rents reserved by it, as devisee of the lessor. Under the act of May 13, 1846, (Sess.

Demurrer. The declaration was on a bond taken under sections 57 and 58, 2 R. S. 3d ed. p. 72.

This was an action for slander, tried before Justice Harris, at ,the Greene circuit in April, 1848. The plaintiff proved that in 1846 a suit was pending before a justice of the peace, in which William McKeon was plaintiff and Hardy Rundell defendant, and that the latter applied for an adjournment and was sworn and examined in support of the application.

In Eq.uity. The plaintiff and the defendant Wilcomb, having been engaged in the business of nursery-men with other persons, at Flushing, Long Island, in March, 1838, purchased the interest of their copartners, and commenced the business on their own account, under the firm of Wilcomb & King. They were to be in all respects equal partners. For a time, the business was carried on upon land owned by the partners, as tenants in common.

This was an action of assumpsit, on a lost promissory note, claimed to have been made by John Hollenback, deceased, in August, 1842, for §3500, payable to the plaintiff. The cause was tried before Justice Allen, at the Tioga circuit, in October, 1848. On the trial of the cause the plaintiff offered to read in evidence the depositions of Robert L. Fleming and Samuel Herrick, taken under a commission directed to James Shaffer of Lemmahoning, Clinton county, Pennsylvania.

This action was commenced by the plaintiff in 1841, against the defendant, as one of the stockholders of the Rossie Lead Mining Company, under the 9 th section of the act of May 12, 1837, incorporating said company, (Laws of 1837, p. 441,) to recover the amount of a promissory'note alledged to have been made by the said company on the 9th of October, 1839, payable to the order of Moss & Knapp, one year after the date thereof, for the sum of $4050 ; and which note was duly…

Griffin sued Martin before a justice of the peace of St. Lawrence county, and on the joining of issue, complained against the defendant, for trespass done by the defendant’s cattle, on the plaintiff’s close, in the town of Pierpont, on divers days between the first day of June and the middle of October, 1848, and thereby destroying corn, grass and wheat of the plaintiff to his damage of ten dollars.

Demurrer. The action was trespass quare clausum fregit upon lot No. 68 in the town of Salem. The defendant pleaded several special pleas, and the plaintiff replied specially, and by new assignments. The plaintiff demurred to the 6th, 7th, 8th, 10th and 11th pleas to the new assignments, and the defendant joined in demurrer. The several pleadings, and the questions of law raised by them, are fully set forth in the opinion of the court.

This was an action of ejectment, brought to recover the possession of part of lot No. 12 of the second division of the Cambridge patent; and was tried at the Washington circuit, in February, 1849, before Justice Paige. The plaintiff derived title under a deed from Polly Barnhart, the owner of the lot, dated June 2d, 1847, conveying the premises in fee to one Stearns, by whom they were conveyed to the plaintiff.

This action was commenced by the filing and service of a declaration, before the adoption of the code of procedure. The declaration was upon a judgment, and the defendant pleaded a tender, before suit brought.

Milks sued Rice and Thorp in a justice’s court, and recovered a judgment against them, in a plea of trespass de bonis asportatis. The defence set up was, that Thorp, being an overseer of the highway, had warned Milks to work on the road. He neglected to appear, and Thorp made complaint to Rice, who was a justice of the peace. The latter issued a summons requiring Milks to appear and show cause why he should not be fined according to law.

In Equity. The bill in this cause was filed to compel the defendant Carr, as late sheriff of Cayuga county, to convey to the plaintiff the undivided half of certain real estate situated in the city of Auburn and particularly described in the bill, which Carr had sold as such sheriff, by virtue of an execution upon a judgment in the supreme court in favor of the defendant Leitch against Asaph D. Leonard, which was docketed on the 6th day of May, 1840, for $30,000 debt, and…

In Equity. This cause was first heard at a special term held before Hoyt, justice, at Canandaigua, in September, 1847, upon pleadings and proofs. After advisement, Justice Hoyt directed a decree for the plaintiffs, upon which he delivered an opinion which contains the facts of the case, sufficient for the understanding of the opinion by this court, as follows :

Error from Wayne county court. The cause was originally tried before a justice of the peace.

Demurrer to declaration. The declaration was in replevin in the cepit.

The decree appealed from was made on the 17th day of December, 1846, in the matter of the distribution of the money arising from the sale of the real and personal estate of Jeffries Hallowell, late of the city of Rochester, deceased.

<p>Error to the New-York common pleas. The declaration was in debt, on a judgment recovered in the New-York common pleas in May term, 1844, by Lynch against Welch for $2505,37; admitting a payment of $1363,63 made thereon by Welch on the 25th of June, 1844; and claiming that $1141,74 still remained due upon such judgment. The declaration also contained the common money counts. The defendant pleaded two pleas. 1st. That after the confession of the judgment declared on, to wit, on the 25th of June, 1844, the defendant delivered to the plaintiff all and singular the property and effects of the defendant, of great value, to wit, of the value of $3000, being the same property and effects of the defendant then in the store No. 57 West Broadway, corner of Reade-street in the city of New-York, consisting of a stock of groceries, fixtures, &c. and being the same previously sold to the defendant by the plaintiff, in full satisfaction and discharge of the said judgment, and of all the said sums of money in the first count of the plaintiff’s declaration mentioned, and of the several promises and undertakings for which the judgment was confessed; which property and effects the plaintiff accepted and received of and from the defendant, in full satisfaction and discharge of the judgment, and of all the sums of money mentioned in the first count of the declaration, and of the several promises and undertakings for which the judgment was confessed. 2d. Ad-mining the confession of the judgment, alledging that such confession was by cognovit, to which the following condition was annexed: “ The execution on the judgment hereupon entered, to be levied and satisfied, at any, time, upon and out of the property and effects of the defendant, in the store number 57 West Broadway, corner of Reade-street, in the city of Neiv-Tork, and on and out of no other property whatever of the said defendant.” The plea then alledged that after judgment was entered upon the said cognovit, a fi. fa. was issued to the sheriff of New-York, thereon, against the goods and chattels of the defendant, on which was endorsed a direction to levy $2050,37 damages and costs, with interest from June 10th, 1844, besides fees, “ upon and out of the property and effects of the defendant in the store No. 57 West Broadway, and on and out of no other property of the defendant.” That upon such execution the sheriff seized certain goods and chattels of the defendant, of great value, to wit, of the value of $3000, being the same property mentioned in the confession of judgment, and sold the same at public sale, for $3000, and delivered the money, after deducting his fees and charges, to the plaintiff; concluding with a verification, and prayer of judgment. The defendant also pleaded nil debet.</p> <p>The plaintiff replied to the first plea, taking issue thereon. To the second plea he replied, that the property and effects of the defendant, mentioned therein were not sold by the sheriff, under and by virtue of the fi. fa. as stated in said plea, for the sum of $3000, but that such property and effects were 'sold for a much less sum, to wit, the sum of $1363,63, over and above the sheriff’s fees, and that that sum was paid by the sheriff to the plaintiff, and was the same sum mentioned in the plaintiff’s declaration, as paid in part of the said judgment.</p> <p>To this replication the defendant demurred, and assigned the following causes: That the plaintiff had not, by said replication, taken issue upon the matters alledged in the plea, but had attempted to take issue upon a matter not alledged therein, viz. that the property and effects of the defendant were sold by the sheriff for the precise sum of $3000; whereas the defendant had not offered in issue, by the said plea, the allegation that the property and effects were sold for any particular sum. Also, that the plaintiff had attempted to take issue upon an immaterial allegation, laid under a videlicit in the plea, and that the plaintiff had not shown that such property and effects were sold for a less sum than the amount of his debt and costs. The plaintiff joined in demurrer.</p> <p>The common pleas adjudged the replication sufficient, and overruled the demurrer. It awarded a venire, to try the issues of fact; staying judgment in the meantime. On the trial the plaintiff’s counsel insisted that the defendant had, by his plea, admitted the judgment record as set forth in the first count of the declaration; and the plaintiff claimed a verdict for the amount of the balance of the judgment, as set forth in said first count, with interest. The defendant produced, and offered to read in evidence, the judgment record mentioned in the first count of the plaintiff’s declaration.</p> <p>The counsel for the plaintiff objected to the introduction of said record in evidence, because it did not tend to prove the issue to be tried in the cause, and because the defendant having by his plea admitted the judgment declared on, could not in this manner show a variance, or otherwise contradict the allegations in said declaration. The court sustained the objection and rejected the record, to which defendant’s counsel excepted. The counsel for defendant then offered to prove and read in evidence a writ of fieri facias, issued to collect the amount mentioned in said judgment record and the indorsement thereon. The counsel for the plaintiff objected to the introduction of said fi.fa., as being irrelevant, and not tending to prove the issue to be tried. The court entertained the objection, and refused to admit such Ji. fa. to be proved and read in evidence, to which the defendant’s counsel excepted. The defendant’s counsel then produced and offered to prove and read in evidence the cognovit on which said record was founded, and to prove that the same was taken by the plaintiff in person. The counsel for the plaintiff objected to the introduction of said cognovit and evidence, on the same ground that the judgment record was objected to ; which objection was sustained by the court, and such cognovit was not admitted in evidence, to which the defendant’s counsel excepted.</p> <p>The judge charged the jury, that the defendant admitted the judgment declared upon ; and the question in issue was, whether the goods in store No. 57 West Broadway, corner of Reade-street, were received in satisfaction of the judgment by the plaintiff. That if the plaintiff agreed to receive, and did receive, the goods in satisfaction of said judgment, then they should find for defendant; and that if he did not agree to receive said goods, and did not receive the same, in satisfaction of said judgment, then they should find for plaintiff. To which charge the defendant excepted. The jury found a verdict for the plaintiff, for $1141,74 debt, and $73,26 damages, and six cents costs, and the defendant brought a writ of error.</p>

Ejectment, tried at the Dutchess circuit in February, 1849, before Barculo, J. On the trial it was admitted by and between the counsel for the respective parties, that Daniel Pultz died intestate, in the year 1798, leaving a widow and eight children him surviving ; that he was the owner and in the occupation of the whole of the premises described in the declaration, at the time of his death ; that his widow and children continued to own and occupy the premises until 1819;…

The complaint alledged that the defendants were the sole acting executors of the last will and testament of Gilbert Hunter, deceased ; that in said will the testator, among other things, directed his executors to place and keep $5000 at interest as the share of Julia Ann Smith, now the above plaintiff Mrs. Drake, and to receive such interest and pay the same over yearly, and every year, to her during her natural life, and then to divide the principal among her lawful heirs;…

The defendants were indicted for a conspiracy. The indictment alledged that on the 13th day of January, 1848, at Little Falls in said county, N. S. Benton and William Barrett had a demand against the defendant March amounting to $77 ; and that the defendants, unlawfully, wickedly, and maliciously contriving, devising and intending to cheat, deceive and defraud them out of the said demand, did between themselves conspire, combine, confederate and agree together falsely and…

<p>In Equity. This was a rehearing of a cause decided at a special term by Gridley, Justice. The bill was originally filed in the court of chancery, before the vice chancellor of the fifth circuit. The object of the bill was to ascertain, settle and establish, by a decree of the court, the rights and privileges of the respective parties of, in, and to the waters and water privileges particularly described therein. The bill alledged that on the 1st of Jan. 1828, Lodowick and Samuel W. Brown were seised as tenants in common of certain lands, mills and water privileges in Plainfield, with a grist mill, oil mill, saw mill, clothing works and carding machine situated thereon. That on that day they executed a deed of partition of lands, mills, and water privileges, by which Lodowick took a portion of the land, and the saw mill, oil mill, yard, <fcc. and “ so much of the waters to the use and operation of the said saw mill and oil mill which may or shall hereafter rise above the bottom of so much of the timber or plate" as now remains upon the dam, now and at all times hereafter, excepting therefrom so much as shall be necessary for the operation of the said grist mill, and the said clothing and carding works.” By the same deed S. W. Brown took the residue of the lands, with the grist mill and clothing works, and the undivided half of the carding works, &c. and “ so much of the waters to the use and operation of the said grist mill and the said clothing and carding works which may or shall or does hereafter rise above the bottom of so much of the timber or plate as now remains upon the dam as shall be necessary for the operation of the same as aforesaid.” And “ to the use and operation of the said grist mill and the said clothier’s works, and the said carding works all waters below the bottom of so much of the timbers or plate as now remains upon the dam, exclusively.” This deed provided that S. W. Brown should maintain 20 feet of the north end of the dam, and the flumes, and not permit any waste of water; and that L. Brown should maintain the remainder of the dam, and the flume belonging to him. It also provided that the parties should erect a stone monument, descriptive of the precise summit level of the bottom of the plate, as the dividing line of waters. The bill alledged that the parties severally entered into the possession of the portions assigned to them; that on the 1st of September, 1843, the plaintiffs contracted with Lodowick Brown to purchase a part of the premises, including the saw mill and water privileges, and took a deed and entered into possession, and had continued to occupy the same. That the consideration of such deed was $1500, the water privilege being valued at $1000. That the defendants had deprived the plaintiff of the use of the water, to a great extent, by keeping it below or at the bottom of the plate, except in time of freshets. That the rights and interests of S. W. Brown were vested in the defendants and were occupied by them, who claimed to be the owners. That the defendants had erected and were operating a variety of other machinery not contemplated at the time of such partition, requiring large quantities of water; and had recently erected a saw mill, which they were operating to the plaintiff's injury. The bill further alledged that when partition was made the grist mill was used for custom business and not for flouring, and the clothing and carding works were used only during seasons of cloth dressing and carding wool, for customers and for family use. That no more water was granted to S. W. Brown than was necessary to work the grist mill, carding and clothing works as they had theretofore been used, &c. The bill also alledged that the plaintiff had frequently applied to the defendants to desist from using the water to operate their increase of machinery, and to confine their use of the water to the grist mill, carding and clothing works as originally intended. That sometimes the defendants admitted that the plaintiff had some right to the: water, but insisted that it depended upon the will of the defendants ; and that they might waste, or use as much for other purposes as would run the grist mill, carding and clothing works constantly, and that they might add to the business requiring water power equal to the grist mill, carding and clothing works, and alternate so as to use the water constantly, and deprive the plaintiff of the use of it. The plaintiff charged that he was entitled to so much of the water for his saw mill and oil mill, and which rises above the bottom of the plate, except so much as is necessary for the operation of the gristmill and clothing and carding works doing custom business, and not as a flouring mill, operating day and night. And he insisted that the defendants had no right to waste the water, nor to add machinery requiring water power, to be used alternately with the grist mill, &c. And the prayer of the bill was that the plaintiff’s rights and privileges of and in the water be partitioned, and the rights and privileges of the defendants thereto, might be ascertained, settled and established by the decree of the court; and that the defendants might be decreed to permit the plaintiff to enjoy his rights; and that they might be restricted to such use thereof as justly, legally and equitably belonged to them by virtue of the partition ; that the defendants might be decreed to account with the plaintiff for the loss and damage occasioned by their improper use of the water; and for an injunction, &c.</p> <p>The defendants put in an answer, admitting most of the facts stated in the bill, but denying that the rights of the parties was as claimed by the plaintiff. They alledged that S. W. Brown died in 1832; that on the 29th of December, 1835, Joseph Wilber, one of the defendants became seised of the interest of S. W. Brown, and continued seised till 8th December, 1842, at which time the other defendants became seised. That Joseph Wilber, while owner, greatly improved the construction of the wheels, so as to require less water; and they claimed the right to use the water thus saved, to carry other machinery ; that there was always a surplus of water, in 1828, and before, and still is, and that the defendants are interested in the surplus water to carry any other machinery; and they averred that the parties were - and are not restricted in the use of the water to any particular kind of machinery. They denied that they had deprived the plaintiff of the use of water by keeping it below the plate ; and claimed the right to use the water assigned to S. W. Brown, and a share of the surplus water to any lawful purpose, and they averred that more grinding was done in 1828 than at the present time. That water power sufficient to carry mills as then constructed was granted, not depending on the business to be done. And they insisted that they had not used as much water as before the new machinery was erected in 1828. They also stated that after the partition L. Brown erected a saw mill with two saws and two wheels, and distinct gearing, and two wheels to carry back the carriages; and a shingle mill, and a variety of machinery to be carried on by water power, viz. buzz saw, turning lathe and grindstone, which were operated at the same time with the other mills. They denied that there was any doubt about the rights of the parties, and insisted that the plaintiff had an adequate remedy at law. They averred that there was a great surplus of water every year, and that the parties have a right to use it.</p> <p>A replication was filed, and proofs were taken; and upon the hearing at the special term the bill was dismissed, with costs. Whereupon the plaintiff moved for, and obtained, a re-hearing.</p>

This action was brought for the benefit of the Lewis County Bank, as assignee of a contract dated March 17,1846, by which the defendant agreed to sell and transfer at any time within two years, to the plaintiffs, all the stock in the Lewis County Bank which he had purchased of them, and to which he should get title, at the rate or price the same should stand him in.

This action was brought by the plaintiff as administrator de bonis non of the estate of Isaac Wilcox, deceased, to recover a sum of money alledged to have been received by the defendant to and for the use of the estate.

This was an action of trespass quare clausum fregit, tried at the Herkimer circuit in December, 1848. The locus in quo was situated within the village of Herkimer, and the alledged trespass consisted in the removal of a fence on the line of a road. The defendant justified under the act of May 12, 1846, (Laws of 1846, p. 305,) alledging that the fence was removed by authority of the commissioners in that act named, and to shorten and straighten the road therein mentioned.

<p>The plaintiff, on the 20th of August, 1845, received from the defendant $10,000 on account, but gave the defendant no credit for $1500, parcel of that sum, although the plaintiff made use of the $1500 soon after it was received. In an action by the plaintiff to recover the balance of an account claimed to be due from the defendant; Held that the onus of accounting for the $1500, and explaining how it was applied, lay upon the plaintiff; notwithstanding an account current of the dealings between the parties, produced by the plaintiff on the trial, which was silent as to the $1500, was received in evidence by consent of the defendant’s counsel, “subject however to explanation by witnesses on either side;” and it was agreed that said paper was “ to be evidence on all points where it 'was not contradicted by other testimony, and was not itself to be evidence wherein contradicted.”</p> <p>Held also, that under the agreement made upon the trial, the account current was only to be regarded as prima fade evidence as to all matters of account stated in it; that is, that the entries of advances and receipts of moneys stated therein were correctly charged ; not that such account was to be deemed perfect, and as containing all the credits that should be allowed to the defendant.</p>

<p>A bond of submission to arbitrators was subject to the following condition: “ That if the above bounden H. W. S. shall well and truly submit to the decision of O. H. W., M. M., W. D. and J. G., or either three of them who shall act, named, elected, and chosen arbitrators, as well by and on the part and behalf of the said E. O. as of the said H. W. S., between whom a controversy exists, to hear all the proofs and allegations of and concerning, First, the amount which has actually been paid upon a certain contract between the said S. of the one part and the said E. O. and J. O. of the other part, of date March 1, 1835, and which in justice should be applied thereon; and indorse the amount so found on said contract, and Second, of and concerning also all actions, causes of action, controversies, suits, judgments, debts, dues, and demands, and all other matters of whatsoever name and nature now existing, &c. and determine and settle, and award also, upon said second mentioned matters, &c. so as the award of the said arbitrators be made in writing subscribed by them, or any two of them and attested by a subscribing witness ready to be delivered to the said parties on or before the 1st day of Feb. next, then,” &c.</p> <p>Held that by the true interpretation of the bond, the parties intended to bind themselves to submit to the award of the arbitrators, of and concerning, first the amount that had been paid upon the contract mentioned, at the date of the submission, and secondly of and concerning all actions, demands, &c. That both subjects were submitted, to be awarded upon, and that the arbitrators were bound to embrace both in their award.</p> <p>It is indispensable to the validity of an award made in pursuance of a submission containing the ita quod clause, that it should embrace all the subjects submitted.</p> <p>Although, upon a general submission of all demands, actions, &c. an award is conclusive as to all matters to which the submission extends, whether any particular included in the submission was or was not laid before the arbitrators, or passed upon by them; yet this principle does not extend to a case where a specific subject matter is submitted, in addition to a general submission of all demands.</p> <p>Where, by a conditional submission, dated December 28, 1842, the parties submitted to arbitrators, among other things, the question how much had been paid upon a certain contract, at the date of the submission, and the award merely determined the amount which had been paid upon the contract up to the 1st of January, 1841; wholly omitting to find how much had been paid up to the date of the submission; Held that, by expressly limiting their finding to a time previous to the date of the submission, the arbitrators had precluded all ground for a presumption that they intended their award should embrace the intervening period; and that the award was void for the omission to include the whole period.</p> <p>Held also, that the court could not infer, in aid of the award, that there were no payments made upon the contract during the time intermediate the 1st of January, 1841, and December 28, 1842, the date of the submission.</p>

This was an appeal, by the plaintiff, from a judgment for the costs of a nonsuit, ordered on the trial of the cause at the circuit. The complaint ivas served in Nov. 1848. It alledged that the defendant was indebted to the plaintiff as maker of two promissory notes, one bearing date Jan. 1st, 1836, and the other July 6, 1836.

<p>This was an appeal, by the defendant, from a judgment entered upon the report of a referee. The complaint was filed for the purpose of having a bond and mortgage executed by the plaintiff on the 18th of March, 1831, to one Luther Colton, surrendered and cancelled, on the ground that the whole amount due thereon had been paid, or tendered, by the plaintiff. , The defendant Kennedy was the assignee of the mortgage. The condition of the bond was that the obligor should pay to the obligee the “just and full sum of $1256,50, with interest after the first day of April next, in fourteen equal annual payments on the first day of April of each and every year after the first day of April next.” The plaintiff set forth, in his complaint, various payments made by him, upon the bond and mortgage, from time to time, and alledged that according to the rule of computation which he had adopted, and which he insisted was the correct one, there was due to the defendant on the 15th day of May, 1848, a sum not to exceed $15, and that on that day he tendered that sum to him in full payment of the bond and mortgage, and requested him to execute a discharge thereof, but that he refused to receive the money or to execute a discharge. The plaintiff insisted that he was not bound to pay annual interest upon the sum secured by the bond and mortgage, but was to pay simple interest only, and to pay the interest upon each instalment as it became due and payable, from the first day of April, 1831. The defendant, by his answer, admitted the making of the several payments by the plaintiff, as stated in the complaint, and the tendering of the $15 by the plaintiff as alledged by him. And the defendant admitted that he refused to accept such tender, or to execute a discharge of the bond and mortgage, for the reason that he claimed there was a much larger sum due thereon than the amount tendered. And he averred that by a legal computation made of the amount due upon the bond and mortgage, there still remained due thereon the sum of $375,07 or thereabouts. And he claimed that he was entitled to recover the interest upon the whole sum secured to be paid by the said mortgage, to be computed from the said first day of April, 1831, up to the time when the payments made should exceed the amount of the interest which had accrued thereon; that the interest should then be added to the principal sum, the payment or payments thereon deducted from the gross amount of principal and interest; the balance forming a new principal upon which to compute the interest, and he claimed that the above was the legal way to compute the interest, upon the said mortgage.</p> <p>On the hearing before the referee the plaintiff proved by Joseph F. Sabine that by a computation of the interest on said bond and mortgage, on the principle claimed by the plaintiff to be correct, there remained due on the 15th day of April, 1848, $11,49. It was admitted that a much larger sum, to wit, several hundred dollars, was due on said bond upon a computation of interest made on the principle claimed by the defendant in his answer.</p> <p>The referee came to the conclusion that the words “ 14 equal annual instalments,” in the condition of the bond, referred to the principal, and not the interest; leaving the terms of the payment of interest not especially defined, and decided that in such a case the payment should carry the interest. He accordingly made a computation showing that, upon this principle, there was, at the time the tender was made, less than §15 due upon the bond and mortgage. And he reported that the plaintiff was entitled to the relief prayed for in the complaint. Judgment was entered upon this report, and the defendant appealed.</p>

<p>To give a justice jurisdiction, and to authorise him to render judgment against an absent defendant, there must be a return showing personal service of process.</p> <p>An entry it> a justice’s docket, as follows, “ Sept 1 Sums 2 pers by S. B..Ward Const 11 plfiF appears” &c. furnishes no evidence of the service of a summons Upon the defendant.</p>

The defendant was indicted for a second offence of petit larceny. The indictment contained but one eount. It charged the first conviction to have occurred on the 31st of October, 1848, at a court of special sessions held at Syracuse before Wm., A. Cook, police justice, having full power and authority to hold said court, and to try and convict for such offence.

<p>This was an appeal, by the defendants Eaton and Spicer, from a judgment entered upon the report of a referee. The action was brought by the plaintiff as assignee of a judgment creditor of the defendant Kelsey, against him and the other defendants Eaton and Spicer, alledging a sale by Kelsey to the other defendants, of his entire property, for the purpose of defrauding the judgment creditor. The referee reported that he found the following facts: First. That Lee, Judson & Lee were partners as merchants, in the city of New-York, and about the 17th day of November, 1847, sold to the defendant Kelsey a bill of goods, amounting to $>398,01, on credit. That on the 22d day of February, 1848, they obtained a judgment therefor; that execution was issued on this judgment to the sheriff of Onondaga county, on the 25th day of February, 1848, and on the 16th day of May, 1848, returned entirely unsatisfied; and on the 16th day of September, 1848, they assigned that judgment, to Daniel Larned, receiving the whole amount therefor. That on the 27th day of September, 1848, said judgment was assigned to the plaintiff in this suit. That Larned held by assignment, as collateral security for payment of this debt, an article on a house and lot belonging to Kelsey.</p> <p>Second. That in May, 1846, Kelsey obtained a patent for a beehive. That defendant Lewis M. Eaton, his brother-in-law, made small advances, and assisted him in obtaining his patent, and about that time entered into an agreement with him in relation to the sale of said right, by which they were to divide the avails of sales between them; and made sales to a nominal amount of thirty or forty thousand dollars, but from which was in fact realized but a very small part of that amount. That about the month of December, 1846, .Kelsey bought out a small stock of goods in Syracuse, and then became a merchant, in which business he continued for about a year, and until the latter part of November, 1847. That at that time he became much embarrassed, and was trying to sell out. That Eaton understood his business, but advised him to goto New-York again and make heavier purchases; assigning as a reason, that his expenses for clerk hire, rent, <fcc. would be no more by increasing his stock, and that would enable him to meet his debts easier. That Kelsey went to New-York and made purchases, but lighter than usual, and among others made the debt in question. That soon after he came home, his debts were coming due faster than he could meet them. He was being sued. That in two instances he, with the advice of Eaton, gave a bond and warrant of attorney, on which to enter up judgment at a future day. That before the days thus agreed upon, and on the 26th of November, 1847, and while he was owing about $10,000, Kelsey sold out his entire stock in trade, including fixtures, and some of the goods for which this debt was made, to the defendants Eaton & Spicer, for the amount of $8000; being the amount of goods as estimated by Mr. Parsons, their chief clerk, without an inventory • upon the understanding that they should pay for them by giving their notes for $4000, for 6,12, and 18 months, 6 months without interest, and that the amount of money which they had in fact advanced to Kelsey, was to apply on the sale, which would make the $8000, less thirty or thirty-two per cent discount on the goods; that these notes were to be given after they got their goods to Yates county, and that was the best terms he could sell the goods upon to any one. That he had negotiated with others. That soon afterwards and within a week an invoice of the goods was taken, by which it seems the goods fell short about $1100 from $8000. That the goods were boxed up and taken by Eaton & Spicer to Yates county, where they went into trade. That during the invoicing of these goods, they were levied on by the sheriff, by an execution of about $628 on another judgment against Kelsey, and that Eaton & Spicer settled that execution, and another debt to the same individuals of about the same amount; taking at the same time a chattel mortgage on the household furniture of Kelsey, and a mortgage on a city lot, encumbered by another mortgage then being foreclosed ; which lot only brought about enough to satisfy the first mortgage. Kelsey testified that at the time this personal mortgage was given, Eaton said he had better give it, to keep his furniture from his creditors. That Eaton & Spicer did not give for the goods their notes, and assigned as a reason that they might have trouble with Kelsey’s creditors; and about the time they were removed, Eaton stated to Woolson, that if they got the goods safe into Yates county, there would be something going to Kelsey on them. The defendants Eaton & Spicer put in evidence an agreement between Eaton and Kelsey, bearing date 23d of December, 1845, in relation to selling said patent, and dividing the avails of the sale. Also a bill of sale of the goods and stock in trade from Kelsey to Eaton & Spicer, dated November 26, 1847, acknowledging the receipt of payment in full for them, $1483 from Eaton & Spicer for money had and advanced, and $6517 from Eaton, purporting to be one third of all the receipts belonging to said Eaton from the sale of a certain beehive, making $8000 without regard to a deduction of 30 or 32 per cent. But the referee came to the conclusion that that statement of payment in full was put in at Eaton’s suggestion, to show to Kelsey’s creditors that he had paid for the goods, and that the contract first given in evidence by the defendants, was not the original contract but a copy signed by Kelsey about the time he sold out to Eaton & Spicer, and ante-dated ; and that the subject matter of it had been settled, and formed no part of the consideration for the . sale of the goods. Eaton &. Spicer also introduced a power of attorney from Kelsey to Eaton, dated 18th of June, 1846, authorizing said Eaton to sell his patents. And they proved a general assignment by William R. Kelsey, of his property to Daniel Lamed, for the benefit of his creditors, dated 29th of February, 1848. Considering the supporting evidences and corroborating circumstances, the referee regarded the evidence of Kelsey as unimpeached. He therefore decided, first, that when this debt was created, Kelsey was on the eve of bankruptcy ; and that by obtaining the goods under such circumstances all the defendants practised a fraud on Lee, Judson & Lee. Second, that Eaton & Spicer received those goods for the purpose of delaying the creditors of Kelsey in collecting their debts; and that, having received them under such circumstances, they were liable, and ought to account for them. Third, that a general assignment executed by Kelsey subsequent to the sale of the goods in question to Eaton & Spicer, did not deprive Lee, Judson & Lee of any remedy they had against said Eaton & Spicer; and upon the same principle, the referee decided that the security given by Kelsey to Lamed did not release Eaton <fc Spicer from their fixed liability to account for those goods. Fourth, that this judgment never having been paid, was a subsisting and available claim in the hands of the present assignee; and that he was entitled to thé same remedy against Eaton & Spicer, that Lee, Judson & Lee would have had, had they not assigned it. The referee also reported that the defendants should pay to the plaintiff $448,04, being the amount of the said judgment, including interest. And judgment was entered in favor of the plaintiff for that sum, against all the defendants. Kelsey did not appear, nor put in any answer.</p>

The complaint was for the breach of an agreement in writing to deliver to the plaintiffs a quantity of salt at Oswego.

Demurrer to indictment. The indictment was found at the August oyer and terminer for Washington county, in 1849. It contained three counts not essentially differing from each other.

<p>Demurrer to answer. The complaint stated that the plaintiff, on the 5th day of January, 1847, recovered against the defendant in a court of common pleas held at Boston, Massachusetts, a judgment for $4031, which remained unreversed and unsatisfied ; and the plaintiff demanded judgment for the amount of such judgment, with interest.</p> <p>The defendant put in an answer alledging “ that the plaintiff who prosecutes this action is not the real party in interest therein, nor is he an executor or administrator, or a trustee of an express trust, or a person expressly authorized by statute to sue without joining with him the person for whose benefit the suit is prosecuted.” The plaintiff demurred to this answer, stating as the ground of demurrer that the defendant did not state and set forth in such answer the name of the real party in interest, or in whose name the action ought to have been prosecuted.</p>

<p>This was an action of debt, brought to recover the amount of an assessment made upon the defendant’s property for his portion of the expenses of building a bulk-head across Pike slip in the city of New-York. Plea nil debet. The cause was tried at the New-York circuit in May, 1846, before Edmonds, Cir. J. The jury brought in a special verdict, by which they “ gave it as their opinion” that “ the construction of the bulk-head in front of Pike slip was necessary and effectual in the regulation of South-street; and that the filling up of Pike slip between Water and South-street was a necessary consequence.”</p>

<p>A mortgagee of a vessel, not in possession, is not liable for repairs done upon the vessel.</p> <p>The holding of a bill of sale, or having the mere legal title to a vessel, does not of itself render a party liable for repairs.</p> <p>The credit is supposed to be given to the party in possession acting as owner.</p> <p>. And as long as he remains in possession, with the consent of the party holding the legal title, and manages and controls the vessel, and receives the profits, he is, for all practical purposes, the owner; especially when he is so treated by the persons doing work upon the vessel,</p>

The action was brought to recover damages for the breach of a warranty upon a sale of . sheep ; and was tried at the New-York circuit in June 1846, before Edmonds, Circuit Judge.1 The plaintiff alledged, in his declaration, that the defendant sold him 181 sheep, which he warranted to be sound, free from disease, and good mutton, for which the plaintiff agreed to pay $317; giving his note for that sum.

<p>This was an action of ejectment for land in Westchester county, taken by the Croton Water Commissioners in the construction of their aqueduct. The cause was tried at thé Westchester circuit in October, 1846, before Barctilo, circuit judge. On the trial the following facts were admitted by the counsel for the defendants, viz.: That William N. Dyckman, formerly of Greenburgh in the county of Westchester, now deceased, the father of the plaintiff, was at the time of making and publishing his last will and testament, and at the time of his death, seised and possessed of a farm of land in Greenburgh aforesaid, of which the premises described in the declaration in this cause were pait and parcel. That the said William N. Dyckman, at his death, left him surviving a widow and six children, of whom the plaintiff was one, the names of which six children are Cathalina B., Sampson, Jonathan O., Maria, William W., the plaintiff and Rebecca. That since the death of the said William N. Dyckman, his said widow and children had continued in the occupation of the said farm, including the premises described in the declaratioú, until some time during the year 1838, when the defendants took possession of the said premises; and that the defendants had continued and were then in the possession of the premises described in the declaration, and Claimed the exclusive possession thereof. And thereupon the counsel for the plaintiff produced and gave in evidence the last will and testament of the above named William N. Dyckman, deceased, bearing date on the 2d day of February, 1820, which was duly proved as a will of real estate, before the surrogate of the county of Westchester, on the 12th day of April, 1834, in and by which said last will and testament the testator devised all his real estate to his said widow and children in equal propdrtions, share and share alike. The plaintiff here rested his Case. And thereupon the counsel for the defendants offered to produce and read a copy of a petition to the Vice chaUCellor of the first circuit, from the water commissioners of the city of New-York, appointed under the act entitled “ an act to provide fol- supplying the city of New-York with pUré and Wholesome water,” and a notice of presenting such petition; but to the introduction of the said papers, the plaintiff, by his counsel, objected, and insisted that such papers could not be read unless the defendants first showed an attempt by the water commissioners to agree with the plaintiff as the owner of the land, as to the amount of compensation to be paid for the land which wight be required by the water-commissioners under the act above mentioned. The judge thereupon directed that the said petition and all the papers produced on the part of the defendants should be read, subject to any objections on the part of the plaintiff. And thereupon the counsel for the defendants produced and read the petition and notice above mentioned. The petition recited the passage of the “Act to provide for supplying the city of New-York with pure and wholesome water,” passed May 2d, 1834; that the petitioners entered upon their duties as water commissioners, and previous to the 1st of January, 1836, made a report to the common council of their proceedings and the plan adopted by them; which plan was approved by the common council; and such further proceedings were had that the common council instructed the commissioners to proceed in the work. The petition also stated that the petitioners had caused surveys to be made of the several pieces of land, &c. required for the construction of the work, and to be filed with the clerk of Westchester county. That for the construction of the said work they required that the corporation of New-York should become seised in fee of certain lands therein specified, among which was the locus in quo. That the petitioners had offered to purchase the said piece of land, of the owners thereof, but had not been able to agree with either of them as to the price. They therefore prayed for the appointment of three indifferent persons to examine said land and estimate the value thereof, and to report thereon; and that upon the confirming of their report an order or decree might be made, directing that upon the payment of the sums mentioned in the report of such appraisers, within two months thereafter, to the owners, or to such person or persons as the court might direct, the title to said property should become vested in the corporation of New-York. There was a notice annexed to the petition stating that the petition would be presented to the vice chancellor on the 12th of Sept. 1837; with an affidavit of service of the petition and notice personally upon Mrs. Dyckman and three of her children on the 6th of Sept. 1837, and of service upon Maria Dyckman, William W. Dyckman (the plaintiff) and J. O. Dyckman by delivering the same to their mother, at her residence, on the same day.</p> <p>The defendants also gave in evidence an order made by the vice chancellor, on the 13th of Sept. 1837, according to the prayer of the petition. This order was made ex parte. The defendants also gave in evidence the report of the appraisers, in which they estimated and valued the premises in question at $3000; also an order made upon the motion to confirm that report, by which the motion was denied, and it was referred back to the appraisers to receive further testimony, to review and re-examine their report, and to make a further report. The second report of the appraisers was also produced and read, by which the appraisers adhered to their former report, and valued the premises in question at $3000. Also an order made on the 21st of May, 1838, confirming the second report of the appraisers. Upon both of these motions Mr. W. N. Dyckman appeared as counsel for the plaintiff in this suit and the other owners of the premises, and opposed the granting of the orders. The defendants examined Philip S. Crooke, as a witness, who testified that he was attorney for the water commissioners, and solicitor in the proceedings in chancery. That on the 23d of May, 1838, he went to the house upon the premises in question, with $3000 in gold, to tender the same to the owners of the land. That he saw Jonathan O. Dyckman, and some others, but he believed the plaintiff was not present; that they all lived together; that J. O. Dyckman had acted for the family, in appraising the damages; that the witness told him he had brought $3000 in order to pay the family for the appraisement of the land, and showed him the gold ; that J. O. Dyckman said, “ We will not take it; we have made up our minds not to take the appraisal; we are going to fight it out.” That the witness made the tender to J. O. Dyckman because he had acted for the family; that he was present through all the proceedings in the appraisement and hearings before the appraisers; that the plaintiff attended some of the meetings when Jonathan was present. The witness also testified in his cross-examination, that he made a written application to the vice chancellor of the first circuit for leave to pay into court the amount of the appraisement. That it was Opposed on behalf of the owners, by their counselj on the ground that the order confirming the second report of the appraisers had been appealed from. That the application was refused by the vice chancellor. That he had no doubt the application Was made within sixty days from the making of the order confirming the report of the appraisers. That he did not know that the money had ever been paid to any person designated by the vice chancellor. The defendants here rested. The counsel for the plaintiff called CharUs Dusenbury as a witness, who testified that he, the witness, was one of the water commissioners of the city of New-York. And thereupon the counsel for the plaintiff offered to prove by this witness that no attempt had been made to agree with the plaintiff as to the amount of compensation to be paid td him for the property described in the declaration in this cause. The counsel for the defendants objected that such testimony was irrelevant and not pertinent to the issue then to be tried. The circuit judge decided that such objection was well taken, and that the testimony so offered on the part of the plaintiff should not be received; to which decision the plaintiff’s counsel excepted. The plaintiff’s counsel called as a witness Jonathan, O. Dyckman, one of the devisees of William N. Dyckman, deceased, and tenant in common with the plaintiff in the land claimed in this suit. The defendants objected to this witness as incompetent, dn the ground that he was interested to establish the title of the plaintiff in this suit, and to ensure him a recovery. The objection was overruled by the circuit judge, who decided that the witness was competent. And thereupon the said Jonathan 0. Dyckman testified that he had no authority to act for the plaintiff in this business; that the plaintiff always told the witness that he would act for himself; that the witness knew how much had been awarded ; that he had made up his mind not to take it; and that if the said Philip S. Crooke had counted down $3000 for the family, he would hot have taken it. That Sampson Dyckman, (the brother of the witness and of the plaintiff,) employed William N. Dyckman of the city of New-York, to act for the family, that he, the witness, agreed to it. The witness being asked if the members of the family had agreed that William N. Dyckman should go on, answered, yes. That he knew the family were dissatisfied with the award of $3000. He knew that the plaintiff was dissatisfied.</p> <p>The counsel for the plaintiff objected, and insisted that the documentary evidence produced on the part of the defendants was insufficient and ought not to be received. 1. Because the proceedings against the owner were joint, instead of being several. 2. Because the defendants had shown no attempt to agree with the owners. 3. Because no personal notice had been given to the plaintiff, of the application for the appointment of appraisers. 4. Because there was no proof of any decision on the appeal, 5. Because the defendants could not become seised of the premises in question, except upon payment of the appraisement. 6. Because no tender was made to the plaintiff. 7. Because Jonathan O. Dyckman, to whom the tender was made, had no authority to act for the plaintiff. The circuit judge overruled the objections of the plaintiff’s counsel; and decided that such documentary evidence should be read; to which opinion and decision of the judge the plaintiff excepted. The counsel for the defendants then moved for a nonsuit; which motion was granted, and the plaintiff excepted. And the plaintiff, upon a bill of exceptions, moved for a new trial.</p>

<p>This was an application by the plaintiffs, who represented themselves to be owners of real estate fronting upon, and bounded by, Hudson and other streets in the city of New-York, in and through which the Hudson River Railroad had been laid out, for an order or injunction restraining the defendants from laying down a double track of rails, or any track of rails, whether single or double, of any kind whatever, with suitable curves and turnouts, or otherwise, from the northerly line of Canal-street, at West-street, through Canal and Hudson streets, to Chambers-, street, or any where within the said limits, and that the said order or injunction be perpetual; and that the said defendants might be ordered to remove and take away so much of the said railroad as they had laid or caused to be laid down in Canal-street, and in any part of said route from West-street, to or near Chambers-street. The motion was founded upon the complaint of the plaintiffs, and affidavits annexed thereto; and was resisted by the defendants upon affidavits; no answer having been put in, when the motion was made. All the material facts are stated in the opinions delivered by the several members of the court.</p>

This was an action upon a promissory note in these words: “ For value received 1 promise to pay M. Bander or bearer the sum of $1000 payable in. ten annual installments, with use, the first payment to become due on the first day of June, 1848. March 6, 1847. Daniel Bander.” The cause was tried, by the court, without a jury. The only question was as to the amount of interest due upon the note.

<p>This was an action of assumpsit on a policy of insurancé. The defendants pleaded the general issue and gave notice of special matter in evidence. The óause came on to be tried before Justice Barculo at the Dutchess circuit in December, 1848. The plaintiffs produced and proved the original policy of insurance ; also the notice and preliminary proofs, which were admitted to have been duly served. The plaintiffs also proved the burning of the property insured on the 28th day of July, 184?. The plaintiffs also presented a paper of which the following is a copy:</p> <p>“Hyde Park, July 12, 1847.</p> <p>Mr. Richard Keese, Sir': We notify you that there was a mistake in our application to you for policy. The application says there was three thousand dollars in the Kingston Mutual Insurance Company, when there is but two thousand five hundred dollars. We also notify you that we have effected a policy in the Hartford Insurance Company on the said mill of two thousand dollars, and Avish you to send us a certificate of your notice of the above policies. Tillou & Doty.</p> <p>Mr. Richard Keese, secretary of the Clinton and Essex Mutual Insurance Company.”</p> <p>«Office C. & E. Mutual Ins. Co. July 16, 1847.</p> <p>The consent of the company is given to the above.</p> <p>Richard Keese, director and sec’ry.”</p> <p>To the introduction of this paper the defendants’ counsel objected. The plaintiffs then proved by a Avitness that Richard Keese acknowledged to him that the consent to said paper was in his hand-writing, and that he was secretary and director of said company. On his cross-examination the Avitness testified that Keese further stated that said assent had a postscript appended which had been torn off of the paper, which postscript stated that the insurance company consented to the insurance mentioned in the notice, provided the Avhole amount did not exceed two-thirds of the value of the buildings. The plaintiffs offered the notice and consent in evidence ; which Avas objected to. The court decided that the paper could not be received : to which decision the counsel for the plaintiffs took exceptions. The plaintiffs further proved by another witness- that the said Keese Avas at Hyde Park the day after the grist mill mentioned in the policy was destroyed by fire, which Avas on the 28th day of July, 1847; that he conversed Avith him in respect to said fire; that said Keese first said that the consent he had given was in substance as folloivs: “ The consent of the company is given to the above, provided the whole amount of the insurance does not exceed two-thirds of the value of the buildings,” signed “ Richard Keese, director and secretary;” that when the said paper was produced and shown to him he then stated that there was another consent sent after the above; that after sending the assent with the postscript, the plaintiffs had written to him that the first assent was not received, and that thereupon, believing the letter to be lost, he wrote a-second letter containing his consent with the same condition in the body of the second letter which was in the postscript of the first letter; that on the witness stating to him that they had a right to insist upon the first consent they had received, Keese insisted that the first consent was contained in a postscript, which had been torn off. Upon this testimony the plaintiffs’ counsel again offered the said letter and consent in evidence to the jury; which offer the court rejected, and the counsel for the plaintiffs excepted to the decision. The plaintiffs then called another witness, who testified that he was acquainted with said Keese; that he was secretary and director of the said insurance company; that the witness had seen him write; was acquainted with his hand-writing, and that the consent, body and signature, was in said Keese’s handwriting. Upon which the plaintiffs’ counsel again offered the paper to go to the jury, which was objected to by the counsel for the defendants, and the court decided that the same could not be read in evidence. To which decision the counsel for the plaintiffs excepted. The plaintiffs’ counsel then offered to prove a second notice, dated July 17,1847, of the same contents of the first, sent to the defendants and received back by the plaintiffs, July, 30,1847, upon which was written a consent in the words following, to wit:</p> <p>“ Office C. & E. Mutual Ins. Co. July 27, 1847. Messrs. Tillou & Doty,</p> <p>Gents. The consent of the company is given, if the whole amount of insurance does not exceed two-thirds of the value of the property insured.</p> <p>Richard Keese, director and secretary.</p> <p>The other notice was received and answered, but may have miscarried. R. Keese.”</p> <p>This was offered by way of explaining the mistake of Keese in supposing the first paper contained the conditions insisted on by him. The plaintiffs’ counsel offered to let both papers go to the jury; which was objected to by defendants’ counsel. Upon which the court decided that the last paper offered might be proved and read in evidence to the jury, but that the first paper or consent could not go to the jury. To which decision the counsel for the plaintiffs excepted, and rested. Whereupon the court ordered judgment of nonsuit to be entered; to which the counsel for the plaintiffs excepted; and upon a case, moved for a new trial.,</p>

This was an action of assumpsit, brought by Tillou, Doty and Crouse, upon a policy of insurance for $2500, dated November 1,1842, upon a grist mill.

This action was tried at the Onondaga circuit before Shank-land. J. and was upon a promissory note made by the defendant, dated March 4,1842, payable in five months, to J. C. Norton or bearer, for $200.

This was an appeal from a judgment entered upon the report of the clerk. The action was upon a bond in the penalty of $250, given upon the arrest of Clark on an attachment foi an alledged contempt of court. The plaintiff, in his complaint, alledged the making of the bond to the sheriff of the county of Madison, and set it out in haec verba.

This was an appeal from a judgment entered upon the report of a referee. The action was for the recovery of the value of a quantity of salt sold by the defendant Way, by the direction of his co-defendant Frazer, and claimed by the plaintiffs as their property. The defendants justified under a judgment and execution against one Bunnell, and claimed that the salt was his property.

This action was brought by the administrator of Mary Ann Converse, a daughter of Daniel Kellogg deceased, against the executors, heirs at law and next of kin of Mr. Kellogg, for an accounting by the executors, and to recover the share of the plaintiff’s intestate of a large part of the estate alledged to have been undisposed of by the will of the testator.

This was an appeal, by the plaintiffs, from a judgment entered in favor of the defendants, upon the direction'and in pursuance of a decision of Justice Pratt, before whom the cause was tried. The suit was commenced by summons and complaint, according to the code of procedure, in July, 1848; and was tried in April, 1849, before the justice, without a jury; a trial by jury being waived by the respective parties.

This was an appeal by the plaintiff, Mallory, from a judgment of the county court of Oneida county, reversing the judgment of a justice of the peace. The defendant was the keeper of a gate on the Northern Plank Road, which commences at Deerfield corners, in Oneida county and extends north to the town of Boonville, a distance of twenty-one miles.

<p>What is sufficient proof of the materiality of a witness, in a justice’s court, upon an application for a commission.</p> <p>The fact that the party applying for a commission is not a resident of the county where the justice resides, and is absent therefrom, is a sufficient excuse for the making of the affidavit in support of the application, by the attorney, instead of the party.</p> <p>Where no laches is imputable to a party applying for a commission, and there is nothing to cast suspicion upon the application, he is not bound to state what he expects to prove by the witness whose testimony he seeks to procure.</p>

This action was brought by the plaintiff, Polly Wilcox, widow of Ethan Wilcox, deceased, to recover her dower in eleven acres of land, of which her husband was seised during the coverture. Wilcox conveyed'the premises to John Budlong in 1811; the plaintiff not joining in the conveyance.

This was an appeal from two orders made by the county judge of the county of Oswego, acting as surrogate, on the 14th day of May last. By the first of those orders, the respondent Pomeroy was appointed guardian of the person and estate of Marshall Whitman, an infant of five years old; and by the second, he was appointed administrator, tfcc. of Orange Whitman, deceased, the father of the infant. The facts appear in the opinion.

<p>Where a junior judgment creditor sells the real estate of the judgment debtor, upon his judgment, and becomes the purchaser thereof, and receives a deed from the sheriff, and afterwards pays to the holder of a prior judgment—who has also sold the premises upon his judgment, and bid the same in—the amount of the prior judgment, and takes an assignment of the sheriff’s certificate given upon the latter sale, the question whether the transaction between the parties amounts to a pwrchaseof the sheriff’s certificate, or to a redemption wider the prior judgment, is one of fact, depending on the intention of the parties.</p> <p>Where the chain of documentary evidence proving a valid title in the junior judgment creditor under the prior judgment, is complete, the burthen of disproving such title, and of establishing the fact that what purports to have been a pwrchase of the sheriff's certificate was in truth a redemption, rests upon those assailing such title.</p> <p>The doctrine of estoppels in pais should not be extended, in order to accomplish a fraudulent object.</p> <p>A party will not be estopped by a declaration made to a mere stranger, where it does not appear that such declaration was ever communicated by him to the party setting up the estoppel, so as to influence his conduct.</p>

Demurrer to replication. The action was replevin for some cows and sheep. The defendant pleaded that he procured an attachment to be issued by a justice of the peace against the plaintiff as a non-resident of the county, and that the property in question was taken thereon by a constable and placed in the hands of the defendant Waterbury, as the agent of the constable, and for safe keeping.

This suit, commenced in 1845, was brought by the plaintiff as indorser against the defendant as acceptor of a draft, of which the following is a copy, with the indorsements: “ $450. Canton, 1st April, 1842. Sixty-five days after date, please pay to the order of S. K. Green & Brother four hundred and fifty dollars, and charge to the account of yours, &c. value rec’d. Roswell Green.

This was a motion to set aside two attachments which had been issued against the defendant on affidavits alledging that he was indebted to the plaintiff and had departed from the state with intent to defraud his creditors. It appeared that the defendant was a wholesale grocer in the city of New-York, doing business to the amount of about $300,000 a year.