Volume 7 — Cowen's New York Reports

Ejectment, for 130 -acres of land in Homer, Cortland county; tried at the .circuit in that-.co.unty, December 19 th, *1825, before Throop, 0. Judge; when the case made out was as follows: The title to the' premises was in Solomon Noble, on the 17th of November, 1817. On the 13th of May, 1818, a judgment was perfected and docketed against him, in the Cortland 0. P., for $610, in favor of Dickson and Keep, on which a fi. fa. issued for the $610, endorsed for $262,64.

Assumpsit, for breach of promise of marriage; tried at the Oneida circuit, September 14th, 1825, before Williams, Q. Judge, ® At the trial, the plaintiff proved that the defendant had Promised to marry her; that he afterwards went a journey to the westward, and soon after his return, broke off all intimacy with her; and on an explanation being demanded ^ t^Le plaintiff’s friend, in the presence of both parties, he had given none. r^e defendant offered to prove, that during…

On error from the 0. P. of the city and county of New York. The plaintiff, Frost, brought an action against the defendants, the Clarksons, in the court below, for money ' ' iicn *had and received. On the trial, he made out the following case, which was found by special verdict: That Gr.

Replevin ; tried at the Saragota circuit, December 1st, -*-825, before Williams, 0. Judge. The facts are sufficiently stated in the opinion of the court. They were presented on case made with a view to a motion for a new trial, an(j jn an affidavit of the defendant, That the plaintiff must show property in himself on the plea of non cepit, he cited 1 Sch. & Lef. 324; 20 John. 469, 70; 7 id. 143, 4; 14 id. 407; 1 Ch. Pl. 159, 167; 7 T. R. 9; 2 Selw. N. P. 1021; Woodf.

On error from the Seneca O. P. The Cayuga Bridge Company sued Stout in a, justice’s court of Seneca county, for toll due them from him for crossing the Cayuga lake on the ice, within three miles of the bridge.

On error from the New York O. P. Van Bushirh brought trespass guare domum fregit, against Irving, in the court below. Plea, the general issue. On the trial, the trespass proved was, that the defendant came to the plaintiff’s house in the city of New York, and demanded pay for milk; but was told that nothing was due.

Trespass for mesne profits; tried at the Seneca circuit, March 13th, 1826, before Throop, 0. Judge. At the trial, it appeared that the plaintiff, ex dem. Peter Smith, against John Stiles,- recovered judgment in ejectment, by default. The demise was laid March 20th 1819, and the ouster on the 1st day of May, 1824. The action was commenced in this court at May term, 1824; and final judgment rendered at October term of that year.

A NEW trial was granted in this case, in October term, 1825, on grounds contained in the report of the case, (5 Qowen, 195.) It was afterwards carried down to trial, and . y . 7 the plaintiff nonsuited on an offer to prove his case as there rePorte5j with the additional fact, that the- plaintiff gave up all defence to an ejectment brought against him at the de£en(£ant)g warrantor’s) request; surrendered possessjon an¿ struck the balance as stated • in that case, which 7 7…

Covenant ; tried at the Saratoga circuit, December 2d, 1825; before Williams, C, Judge. The action was upon a covenant, contained in a deed of' conveyance from the defendant to the plaintiffs, that the premises contained at least 80 acres. The declaration set forth the covenant; and averred that the farm'conveyed did not contain more than 50 acres. The plea was, that it did contain more than 50 acres, that is to say, 90 acres, and concluded with a verification.

Assumpsit on a note made by the defendants, payable to the plaintiff; tried at the Madison circuit, March 22d, 1826, before Williams, 0. Judge.. The case at the trial was as follows; the note was ' 874 gallons of whiskey, dated November 12 th, 1819 ; and was one of several notes given by the defendants to the plaintiff under these circumstances: On that day,.

On demurrer to the replication. The action was slander, for charging the plaintiff with perjury. Plea, that the words were spoken in reference to the testimony of the plaintiff, on the trial of a, cause.

The demandants brought a writ of - right; and counted on the seism- of the wife’s; ancestor, Matthew Yischer, and her own. seisin, within.- 25. years, &o. The tenant, in plea, put himself upon.the grand assize, prayed recognition, &c,, whether-the tenant, or the demandants had the greater right to hold; and then added a práyer that it might be inquired of by the. grand assize, .whether Matthew Yischer was seised, &c.-, within 25.years,Ac.', as the demandants had alleged.

Aeter a new trial was granted in this cause on the case, as stated ante, 13, S. 0., the plaintiff again carried it down for trial, at the Chenango cicruit, in January, 1826, when *it was tried before Nelson, C. Judge; and a verdict was taken for the plaintiff, subject to the opinion of this court; • 1 1 „ . , • .5 „ „ ’ with leave for either party to turn it mto a bill of exceptions or special verdict. It is not material to state the case at length.

<p>Counts on an°mfntestlt^ and on a promise from the administrator, sideration arising after the intestate’s death, cannot be joined in the same claration.</p> <p>andthere be a general report of referees, or general verdict 1% tíie, Plam; tier, judgment will be arrested"</p>

Ejectment for land in Oneida county tried at the cireuit in that county, March 27th, 1826, before Williams, C. J. _ At the trial, the claim of the plaintiff, to one-fifth of the premises in question, depended on the- inquiry, whether one of the-lessors of the plaintiff whs the heir of George Clark, the patentee ' of the land.

ASSUMPSIT; tried at the Steuben circuit, October 3a. 1825, before ROOEESTER, (late) 0. Judge. The declaration was for money lent to tl3e testator of the defendant, &c., averring promises by the defendant's testator. There was also a count for money lent &c.; to the testator, averring a promise to pay, by the defendant as executor.

Assumpsit, on a promissory note, dated Quebec, December 21st, 1818, for £125, made by the defendant, and pay-akie to Robertson or order, at 90 days, and endorsed by J 7 J Robertson to the plaintiff. The cause was tried at the Clinton circuit, June 27th, 1826, before Throop, 0.

<p>The plea of a declaration in covenant, is bad on demurrer, as being argumentative, but not void; and if issue be taken upon it by the plaintiff, and a trial had, the defect is cured by the verdict.</p> <p>This plea admits the deed; but denies the breaches, and puts in issue all such matters as show that the covenant is not broken, or that the defendant was never under an obligation to fulfil the covenant declared on.</p> <p>F. covenanted to pay, on certain letters patent being delivered to, and accepted by him. In an action of covenant, the declaration averring the -delivery and. acceptance, held, that the plea of non infregit conoentionem put in. issue the delivery and acceptance; and that the plaintiff was bound to prove them upon the trial.</p> <p>In covenant against the heirs of the covenantor, they pleaded that they had not, at the commencement of the suit, or before, or'since, any lands, tenements or hereditaments by descent. Replication, that the defendants have, and after the commencement of the suit, had sufficient lands, tenements and hereditaments by descent, &c., wherewith they could, and might, and ought to have satisfied the money claimed.</p> <p>Held, that this plea and replication, though broader than those authorized by the statute, 1 R. ¿. 316, were yet substantially within the statute; "and that the jury should inquire of the value of the land descended, &e.</p> <p>Held, also, that lands owned, but mortgaged by the ancestor, and which descended, were legal assets within the issue; not merely equitable assets; especially, as the ancestor died before the mortgage money fell due.</p> <p>The mortgagor, before entry or foreclosure, is deemed legally seized of the mortgaged premises as to all persons except the mortgagee.</p> <p>Plain words, or necessary implication, are necessary in a will, to disinherit the heirs at law.</p> <p>The testator gave by his will, certain annuities to his wife, some for her use, and some for the use of his children: those for the use of the wife, to be out of the profits of his steamboats, and those not proving sufficient, then out of any other property or profits arising from his estate real or personal; those for the use of the children to be out of the profits of his steamboats, or any other property, real or personal; and there were other provisions in the will, countenancing the idea that these annuities were intended, by the testator, to be made dependent upon the profits of his estate, and not to break in upon the capital. There being no express devise of his real estate; held, that it descended and became assets in the hands of his heirs for the payment of debts; and remained totally unaffected by the words of the devise; and that the children of the testator should, therefore, be sued on his covenant, as heirs, not as devisees.</p> <p>In an action against the heir on the debt of his ancestor, to a plea of riens per discent, at the time of the commencement of the action, the plaintiff may reply that the defendant had lands before the time, &c., and if this issue be found for the plaintiff, the jury shall inquire of the value.</p> <p>In every other case, there is no inquiry as to value.</p> <p>If the plaintiff reply according to the statute, 1 R. L. 317, s. 4, he is bound to have the value of the lancl inquired of by the jury.</p> <p>If the plaintiff, to a plea of riens per discent, reply assets, as at common law, and the issue is found for him: or there be judgment by confession, demurrer or nil dicit, the judgment is general for the plaintiff, without any writ to inquire of the lands descended.</p> <p>The only difference bfetween a replication at common law, to such a plea, and a replication under the statute, is in the time when the assets are alleged to be had by the heir. At common law, the replication is, that on the day of issuing the writ, the defendant had sufficient. &c., by descent, with a conclusion to the country. Under the statute, it is sufficient assets before the issuing of the writ.</p> <p>The plaintiff proves the latter issue, by showing either assets when the writ issued, or assets before that time, which have been bona fide aliened; otherwise, on a replication at common law. There, if the land be aliened, it ceases to be assets.</p>

<p>goodV where there is any donT by the de"d to aseer” tnm the value, quai!tytyof the goods, the delively is not complete, so as to bind the therSstat^e Of frauds.</p> <p>Where a contract to deliver goods, is nnexecuted by a delivery, the vendor, in a suit for the price, must declare on the special contract; and cannot recover upon a general count, for goods sold and delivered.</p>

<p>Ejectment for 80 acres of land in Moreau, Saratoga county, tried at the circuit in that county, December 10th, 1824, before Walworth, 0. Judge.</p> <p>The plaintiff claimed title to the premises in question under a sale, to pay the United States direct tax; which he claimed to have been made pursuant to the law of the United States, of July 22d, 1813. He was nonsuited at the trial, by the judge, on facts which are sufficiently detailed in the opinion of the court.</p> <p>moved to set aside the nonsuit, and for a new trial. He cited 1 Phil. Ev. 302, 304, 312; 4 Dall. 415 ; 4 Cranch, 403; 9 Cranch, 64.</p> <p>cited 4 Wheat. Rep. 77, and the cases there cited; 5 id. 116; 4 U. S. L. 557, 558, s. 21, 22.</p>

Trover for a quantity of saw logs, boards and plank; tried at the Clinton circuit, June 30th, 1825, before Duer, C. Judge. ° At the trial, it appeared that certain saw logs had been cut on the plaintiff’s land; and drawn to the defendants’ saw mill, where they were converted into boards by the defendants.

The defendants demurred to the declaration. The court, -^as* term, overruled the demurrer as frivolous, The attorney for the defendants afterwards made affidavit that he demurred in good faith, sincerely believing that the declaration wanted substance ; and that the plaintiff had not lost a trial. One of the defendants made affidavit that the defendants had a good and substantial defence on the merits, as he was advised by counsel and vérily be-heved.

moved to change the venue from the county of Oneida, &c. The motion turning on the balance of the number of witnesses. read the plaintiff’s affidavit of a ballance of number in Oneida. These were stated, by the affidavit, to be material and necessary, &c., and it was perfect as to the witnesses collectively; but did not say that each of them were material, &c., necessary, &c., and without each of whose testimony, &c., as advised, &c., he could not proceed to trial, &c.

Oh error from Schenectady, O. P. moved to set aside the bill of exceptions, on which the writ of error founded. The motion was grounded on affidavits that certain exceptions were taken by Marsh, the defendant -xbelow, i -i in i mi n • i at the trial; and, afterwards, a bill of exceptions served on the attorney of the plaintiff below, who proposed amendments.

jjj January last, the plaintiff in error was convicted of . , . „ _ . r>-vr a conspiracy m the oyer and terminer of the city of JNewYork; and sentenced to be imprisoned. He prosecuted a wrjt of error, which was returned on the 4th of May, 1827.

The defendant had been surrendered in discharge of his special bail, and on the 15th of August, 1826, the plaintiffs obtained judgment.

Motion to amend the return to a' certiorari directed to the marine court of the city of Hew-York For the defendant, it was objected that no copy of the return and affidavit on which the certiorari was founded, had been served on the defendant’s attorney as a part of the papers for the motion.

0. Graham moved to enter on the record a vacatur of the judgment for the plaintiff in this cause.

This cause came before the court on a return to the certiorari granted by Woodworth, J., upon grounds mentioned 6 Cowen., 555, S. C.; and was discussed upon the points there decided by him, as to the nature and effect of the challenge against Norwood, the juror; and the proceedings upon it in the court below. The case will be found stated there, (p. 556, 7,) substantially, as it was now presented by the return.

<p>Assumpsit ; tried at the Chenango circuit, in Decem)3er¡ 1824, before Nelson, C. Judge.</p> <p>declaration contained only the general counts in indébitatus assumpsit, for work and labor, &c.</p> <p>If appeared in evidence at the trial, that the defendant agreed with the plaintiff, (an infant) to convey him a cer- . . y . tam piece of land of about, 30 acres, if he served the defeildant faithfully, till 21 years of age. That he worked in the defendant’s service till that time, and some years after-wards. For his services while under age, the plaintiff ciaimed the value of the land, the defendant having refused ' * ° to convey; and for the subsequent services, he claimed a monthly compensation. The plaintiff worked for the defendant while under age, with the consent of his father,</p> <p>The defendant’s counsel objected, !. That the plaintiff could not recover for his services during his minority ; the compensation for these being due to the. father; 2. That *kbis part of the claim, being on a special agreement, was inadmissible, under the general counts. 3. That the agreement was v0^ hy the statute of frauds,</p> <p>These objections were overruled by the judge; and the jury found for the plaintiff $500.</p> <p>moved for a new trial; and cited 2 Mass. Rep. 113 ; 15 id. 274; 5 B. & A. 525.</p> <p>cited 3 John. Rep. 199; 15 Mass. Rep. 272.</p>

Barker was convicted of a libel at the last general sessions of the peace of the city and county of New York ; and sentenced to pay a fine; which had been paid accordingly, now moved that this court advise the court below, whether it had ruled correctly on certain questions of evidence arising upon the trial.

A CAPIAS AD RESPOHDEHDUM was issued against all thre of the defendants jointly, to answer the plaintiffs in a of trespass on the case; returnable in the New York common pleas, September 3d, 1826. Wyckoff was taken, as to whom the sheriff returned cepi corpus, and as to the others non sunt inventi.

A 3USTIOE of Montgomery county rendered judgment against Dodge, at the suit of Smith, November 16th, 1826. The 26th, (the 10th day after judgment~,) being Sunday, Dodge appealed by giving notice, &c., in due form, on the 27th. On. the return coming into the 0. P. in March last, they quashed the appeal, on the ground that it was made one day too late. now moved for a mandamus commanding them to vacate the rule for quashing, &c.; and that they should proceed with the appeal.

<p>moved that the inquest taken at the Oneida circuit, in the first week of April last, be set aside, with costs; and also for a commission.</p> <p>• He read an affidavit, that issue was joined, on the of March last, and the cause noticed for trial. That the defendant then obtained an order to stay proceedings on , . _ J A -it the part of the plaintiffs till the present term, with the view of moving for a commission to examine foreign witnesses. That a copy of the proper affidavit, and a copy of the order, with a notice of the motion, was served on the plaintiff’s attorney on the 30 th of March; notwithstanding which, he took an inquest in the cause out of its order on the calendar.</p> <p>read an affidavit of the plaintiff’s attorney, that no original order had ever been shown to him.</p> <p>said the notice of motion for the commission was, in itself, a stay of proceedings. 9th rule of April term, 1796; 1 John. Cas. 135; Col. Cas. 46; 1 Dunl. Pr. 543; 1 John. Cas. 391.</p> <p>But if otherwise, the order was properly served. The original need not be shown. It is the same, in effect, as a certificate of probable cause; and may be served in the same manner. 3 John. 451; Rule 4, 1799. Showing *the original is necessary, only where it is to operate as the foundation of an attachment for contempt in disobeying it. 3 John. 20. In Cheetham v. Lewis, (2 John. 104,) on a motion to set aside a default taken, notwithstanding an order enlarging the time to plead, the court say service of a copy of the order was necessary.</p> <p>Again; the affidavit for a commission includes an affidavit of merits. After a copy of an affidavit of merits is served, it is irregular to take an inquest out of the order of the calendar. Rule of Nov. term, 1808; 3 John. 535, 542.</p> <p>The original order should have been shown. 2 John. Rep. 104; 3 id. 19. 1 DunI. Pr. 108, is express, that a judge's order must be se~'ved by de1iveri~g a copy and showing the original. Such is the uniform practice.</p> <p>Tlje cause having been noticed for trial before the notice of the .motion, that was not, jper se, a stay. At any rate, the costs of preparing for trial up to.the time of the notice of motion, must be paid. 1 John. Cas. 391; 1 Cowen, 47; 5 id. 269.</p>

<p>T~r~ plaintiff sued the defendants in the Erie. common pleas, for a ma1icio~us prosecution. The, d~feudants removed the cause by hab.ec~s corpus iuto this ~court,• where the plaip.tiff~ecovered $25. damages.</p> <p>now moved for judgment, with full supreme court~ costs..</p> <p>The 4th section, of the.statute.of eosts, denieg them-to-the plaintiff,- unless he.-recovers above $50. l'E. L; 343;- And the proviso to that section, in favor of -, suits removed by habeas corpus from the common pleas, requires that, to obtain costs, he should recover .exceeding $25-besides-costs.. The damages cannot- be increased by adding the nominal-costs of-6 cents, found.-.by the jury. 2 Caines, 213; 2 John. 283, 288.</p> <p>The ease then cannot be distinguished from that of Waterman v. Benschotten, (13 John. 425,) which holds that the plaintiff cannot recover costs'"merely on -the :ground- that his action woizld have carried them in the court below. That was slander, commenced'1 'in " the- O. P. and - removed by habeas corpus. The plaihtiff recovered $10. But costs were denied,' on the ground that-the ease was not saved by the "4th section. ’ 'Within the principle' of that case, the defendant is here entitled to his -costs. The statute subsequently passed, and" which was "probably founded on that decision, does not reach a case of malicious prosecution. It provides, that in action of battery, false imprisonment, or for slanderous words, commenced in the O. P. and removed by habeas corpus, the plaintiff shall have costs if he recover anything; (stat. sess. 40, ch. 278, s. 2;) leaving the action of malicious prosecution to the general statute of costs. In Bennett v. Rathbun, (17 John. 37,) the title to the land was in question.</p> <p>This recovery would have carried costs in the court below. A habeas corpus is considered *as a continuation of the suit for the purposes of bail, because a contrary rule would work injustice. (Bell v. Hall, 12 John. 152.) Upon a like principle in Bennett v. Bathbun, (17 John. 37,) a habeas corpus was held" to be a continuation of a suit in trespass guare clausum fregit, for the purp ose of carrying double costs.</p> <p>Again; it is conceded that a recovery" to this amount, would carry costs in slander. In Haff v. Hutchinson, (1 Cowen, 415,) this court held that ¿Zander'included' libel, for the purpose of costs. Why not, upon the same principle of construction, say that it includes malicious prosecution ?</p>

Troyer, commenced m the O. P. whence the defendant • . , . , , 7 - - removed the cause into this court by habeas corpus; and obtained a verdict. On taxing his costs before Mr. Hubbard, clerk, the plaintiffs objected that they should be at common pleas rate only; but the objection was over-rt¿e(3 and full supreme court costs allowed. . A motion was now made m behalf of the plaintiffs for a retaxation; for whom were cited 1 R. L. 344, s. 4, 5; 17 John. 37.

annual election of the corporation of St. Peter’s church in the city of New York, in April last, holden for the choice of 4 trustees, 8 persons were voted for, 4 of w^om ^5- 102 votes, and four, 100. The voting was by ballot. The inspectors having certified that the four having 102 votes, were duly elected, a motion was now made for leave to file an information in nature of a quo warranto *against them, as unduly elected.

THE plaintiff's attorney being under a rule to declare, delivered a copy of the declaration to the defendant's attor~ uey; but put no declaration on ifie with any one of the clerks of this court. The defendant's attorney, therefore, disregarded the proceeding, and entered the plaintiff's default for want of a declaration. A motion was now made to set the default aside.

<p>Assumpsit. This cause was twice tried. On the first trial, the defendant relied on two distinct grounds of defence; to both of which the plaintiffs gave some evidence by parol; other evidence by depositions taken de lene and other evidence taken upon commission, in which both ... > ' . . . ■^parties joined; and half the expense of executing which had been paid by the defendant, viz: $37 50.</p> <p>, . „ - . -.. i i. ii Both points of defence were submitted to the jury by the circuit j'udge. They found for the defendant; and, according to his direction, declared tipon what ground they gave their verdict.(b) This was upon only one of the grounds of defence set up by the defendant.</p> <p>The plaintiffs took several exceptions, to the j'udge’s decisions and charge upon the trial; and, after obtaining two orders for time to make a case, drew it, with a bill of ex-1 ill 1 1 r, 1 , ceptions, and served both upon the defendant s attorney, The case contained the testimony upon both points given at the trial, both oral and written. As to the latter, it varied but slightly from the very words of the depositions ; but no objection was made before the j'udge who settled the case on the ground of verbosity. The lines of the draft, copy to serve, and copy for the j'udge to settle by, on amendments being proposed, were made to correspond, and were numbered by figures. In May term, 1826, this court ordered the plaintiff to elect(c) between the case and bill of exceptions. They elected the former; and the case was argued upon points made on that part of it only, which related to the ground passed upon by the j'ury. The facts in relation to the other ground were inserted; so that this court might see, if they should be against the finding of the jury upon the ground taken by them at the trial, that there was still no reason for the defendant’s re-taming his verdict on the other ground. Wo objection was made at the trial to any decision of the circuit judge, in relation to the ground not passed upon by the jury. .</p> <p>This court granted a new trial, with costs to abide the event;(a) upon which the plaintiff recovered; and noticed his costs for taxation before ■ a commissioner. He decided,</p> <p>1. That the statement in the case, of testimony relating to the ground of defence not passed upon by the jury, should not be taxed at all.</p> <p>*2. That the statement of evidence relating to any point made by the plaintiffs, and decided against them, should not be allowed.</p> <p>3. That the figures should not be allowed in computing the folios.</p> <p>4. That nothing should be allowed as for the draft of any testimony inserted in the case from the depositions.</p> <p>5. That nothing should be allowed for the bill of exceptions.</p> <p>6. That nothing should be allowed for the services of the commissioners in drafting and copying depositions taken under the commission.</p> <p>7. That the costs of the plaintiffs’ orders for time to make the case, should not be allowed.</p>

<p>Proceedings on the defendant’s removing for a misdetiorari¡rbyCer"0*"</p> <p>^Construction bis recognizstatuteTVl* 141, s. 4.</p> <p>_ should' trial according to the terms of the recognizand6’ °4h°ether the defendant not.</p> <p>betakenontheto part Pl</p> <p>a defendant omitted to appear and try at the circuit, be-not86 certain materiOn motion11 to estreat his recognizance, orderori that the ^ranted unless within thirty days, he should give a new recognizance to appear ana try at the next</p> <p>Whether the first recogmnued in force? Qucare.</p>

<p>After the plaintiff had declared, and before the defendant answered, the former entered a common rule to amend - . , his declaration; and amended by inserting a different venue from that in the original declaration.</p> <p>A motion was now made to set aside the rule and amended& declaration, as irregular; 1. On the ground that the amendment was premature; 2. That the plaintiff could not amend by altering the venue.</p> <p>cited 16 John. 149; 19 ibid. 175. 175.</p>

On errror from the court of oyer and terminer of the city 0f New York, that court returned a record in these words: City and County of New York, ss: Be it remembered, that on… Held: and must have done all its acts. The circuit judge and aldermen of the city are mentioned as holding the court at the city hall. There is evidence on the face of the record, that the indictment was found at the sessions; and no order for its transmit•sion to the óyer and terminer was necessary.

<p>Assumpsit by the plaintiff, as bearer, against the defendant, as drawer of a check, on The Bank of America, dated ^e'w'York, October 21, 1824, for $1912 02, payable to n0- 25, or bearer, 1</p> <p>The cause was tried at the JNew York circuit, March 1826, before Duer, 0. Judge.</p> <p>It was admitted at the trial, that the plaintiff had no inter est in the check; but sued for the benefit of Mrs. Bemsen, to w^om che°k belonged, with her consent. There was a question made, whether the check had been demanded of the defendant; and the plaintiff offered one Lawrence ag a -witness, to show that a demand had been waived, 7 . Lawrence had, as broker, negotiated a loan to the defend-anb on which the check was given, and charged certain emissions, which were included in the check.</p> <p>The defendant objected that the action was not sustainatoP^11^ in his name; but the objection was overruled. Lawrence, before he was sworn in chief, denied all interest on his voire dire. The fact of his commissions bejng included, came out in the course of his examination' in chief; but the objection on account of his interest-was not renewed. He proved a clear waiver of demand, as will . be seen by the opinion of the court.</p> <p>The defendant set up the defence of usury in the check, between Lawrence and the defendant; and various evidence was given upon this point. Among other witnesses, the defendant offered Mrs. Eemsen, the person for whose benefit the action was brought; but, on her objection, and claiming the privilege not to testify against her interest, the judge allowed the claim; and she was excused from giving evidence.</p> <p>Verdict for the plaintiff.</p> <p>moved for a new trial. He said the defendant’s undertaking was not absolute. (3 John. Cas. 259; 2 id. 75; 9 John. 121; 12 id. 433; 19 id. 391.) Lawrence was interested; and there was not, at any rate, such an explicit waiver of demand and promise to pay, as the cases require, in order to sustain the action. (5 John. 248, 375; 12 id. 423; 3 id. 68; 16 id. 152; 8 id. 384.)</p> <p>The plaintiff was not the proper person to bring the action. He was a mere agent. (10 John. 387, 224; 1 Chit. Pl. 5.) The defendant’s right of set-off may be defeated by such a contrivance, both as to the nominal and real plaintiff. (5 Cowen, 231; 1 John. 319.)</p> <p>The defendant is also deprived of the testimony of the nominal plaintiff.</p> <p>The real plaintiff should have been compelled to testify. There is no doubt she might be compelled to answer by bill of discovery. Why alia lex Rtmoe, alia lex Athmis t Indeed, the question upon the privilege of the witness may be considered at rest, since the decision in Lord Melville’s case. (1 Hall’s Law Journal, 225, 230, 231.)</p> <p>The counsel also cited 11 John. 245, 19 id. 268, and 4 Cowen, 399.</p> <p>As to the want of demand, it is a sufficient answer, that the defendant has sustained no injury by the omission. But clearly here was a waiver.</p> <p>The court will not inquire into the right of the holder ... . , . ... . to bring the action, unless it appear that his possession is mala fide. (3 John. Cas. 263.) The defendant was not precluded from any equitable defence. Ho right of set-off was pretended.</p> <p>The party in interest, or any other witness, cannot be compelled to testify against their own rights. (10 East, 395; 1 Str. 406; Kirby’s Rep. 203; 2 Root’s Rep. 528; 2 Barn. 436; 7 Mass. Rep. 131; 3 Conn. Rep. N. S. 528; 1 Martin’s Lou. Rep. 23;(a) 1 Overton’s Tenn. Rep. 340.)</p> <p>*Lord Melville’s case does not decide that a party in interest shall be compelled to testify.</p>

<p>On error from the mayor’s court in the city of Albany, The action in the court below was trover, by Stafford against Eoof, for a horse. The horse had been sold and delivered by Stafford, then a minor of 19 years of age, to ;g00f executed to Stafford his (E.’s) note for the horse, 7 x J 1 payable in specific articles to the amount of $50. This action was brought while J. Stafford was yet a minor. *These facts appearing on the trial in the court below, the counsel for Eoof objected, that J. Stafford could not avoid the sale of the horse, till he came of age. The court overruled the objection, charging the jury accordingly, who found for the plaintiff below $55 damages. The opinion of the court below being excepted to by Eoof, he brought ©iror.</p> <p>Several other points were presented by the bill; but it x x , _ is not material to notice them; as the only question decided by the court was, whether the infant could rescind the sale, before coming of age.</p> <p>cited Bac. Abr. Infancy and Age, (I) pl. 3, 8; Co. Lit. 2 b; Cowen’s Treat. 426; 8 Taunt. 508; 10 John. 132; 1 Bl. Rep. 579; 1 Rol. Abr. 341; 1 Inst. 79; Kenn’s case, 7 Rep. 138; Bac. Abr. Infancy and Age, (A.)</p> <p>cited 3 Burr. 1794; 10 John. Rep. 463; 1 Mod. 137; 3 Keb. 369; Bac. Abr. Infancy and Age, (I); 5 Bro. P. C. 570; 2 T. R. 161; Com. Dig. Infant, (B.)</p>

Assumpsit, on an award of arbitrators, tried at the Sullivan. circuit, May, 1826, before Betts, late Gh. Judge. ^he plaintiff having made a private road partly over his own land, but mostly over the land of others, the defendant wanted to use it in the same manner as the plaintiff a right to do.

<p>A direction in a will to executors to sell lands, to pay legacies, and distribute the residue, does not break the descent to the heir at law; though he be expressly out off by a disinheriting legacy, and a declaration in the will that he shall take nothing as heir. Otherwise, if the land be devised to the executors to sell.</p> <p>To cut off the heir at law, the estate must be devised expressly, or by implication, to some other person.</p> <p>A devise that executors shall sell, confers merely a naked power without interest.</p> <p>The court will not, nor is a jury authorized to presume a conveyance by the executors and a continued outstanding title, as between the heir and a mere intruder without pretence of title, even after the lapse of more than forty years’ possession.</p> <p>A mortgage of more than 20 years standing, on which no interest has been paid, and under or upon which there has been no entry or foreclosure, is not such an outstanding title as will bar an ejectment by the mortgagor or his heirs.</p> <p>Courts will not countenance presumptions of outstanding title in favor of a mere intruder without pretence of title.</p>

ASSUMPSIT on a policy of insurance, tried at the New York circuit, January 12th, 1826, before EDWARDS, 0. Judge. *The claim at the trial was for a .total loss. The policy -i.*/ produced at the trial was underwritten by the defendants, for $15,000, at a premium of two per cent, on a cargo of £ur owne¿ an¿ shipped by the plaintiffs on board the brig Twey Brudie. The voyage was at and from New York to Hamburgh.

<p>d. owned a agreed to manumit ,on„ years’ faithful service. He g^ s°to bÜ f1;0 manumití ted the slave before that time had expired, without obtaining a certificate of the slave’s ability to maintain himself, pursuant to the statute, (sess. 40, ch. 137, s. 7 ;) and he being in fact unable to maintain himself at the time of manumission. The slave afterwards became chargeable to the town of Bethlehem, whose overseers of the poor expended money, upon an order of maintenance, for his support. Held, that B. was liable to the overseers, in an action for such money, upon the statute, (sess. 40, ch. 137. s. 7.)</p> <p>Held, also, that no notice to B. to maintain the pauper was necessary, previous to the expenditure.</p> <p>Held, also, that no adjudication of two justices, as io the pauper's place of settlement, was necessary. But that the manumitting master is liable, upon the statute, to any town to which the slave may become a charge.</p> <p>The settlement of a slave follows that of his master. Per Woodworth, J.</p> <p>If he gain a settlement in his own right, the town to which he becomes chargeable may elect to remove him to that place of settlement; or charge his former master. Per Wood-worth, J.</p> <p>It is proper and necessary that an order of maintenance should be obtained, in order to charge the master.</p>

Debt on bond; in the penalty $7000, dated December 20th, 1817, conditioned to pay $1500 one year, and $1500 two years after date, with interest; tried at the Sullivan circuit, May 23,1826, before Betts, (late) C. Judge.

Trespass guare clausum fregit, and for turning the plaintiff out of his house and destroying his goods; tried at the Montgomery circuit, December 1825, before Williams, 0. Judge, -A-t the trial, the plaintiff proved that, on the 7th Februar5r) 1821, the defendant entered and took possession of a house claimed by, and in possession of the plaintiff, and rem0Te8- and injured his goods, while he was absent with his wife, under a warrant at the suit of the defendant.

On certiorari from, a justice’s court. . , The facts are sufficiently stated m the opinion of this . court- cited 2 John. 207; 13 id. 359; 12 id. 165; 5 B. & P. 61.

Assumpsit on a promissory note; tried at the Oneida circu^j October, 1826, before Williams, 0. Judge, The defence was that the note was not to be collected on a certain condition which had been complied with; and to s^ow ^is, a witness was offered by the defendants, to prove a conversation between one of them and P. & W., whom defendants insisted were, at the time, directors in the Litchfield Iron Company.

<p>On certiorari from the general sessions of Montgomery COUntv.</p> <p>L. B. residing m the town of Mmden, being pregnant & bastard chüd, three justices of Montgomery county made an order upon the overseers of that town, to relieve her in her lying-in and child-birth; and for the support of the child. The order was dated March 25th, 1824, before she was delivered of the child. On the 22d of April, in the same year, and after the birth of the child, they made an order of filiation against Cox, the defendant in error; and adjudged that he should pay $14 for lying-in expenses, and the support of the mother up to the time of making the last order; and 56 cents weekly, as.long as the child should remain chargeable to Minden. Cox appealed to the general sessions, where the above facts were in evidence; and it was also in proof that nothing had been paid *by the overseers of Minden, or any of them, for lying-in, or other expenses of the mother or child. It was also proved, that L. B. was a single woman, herself a bastard, born in Minden, and was about 18 or 19 years of age; that the child was also born in that town; that she had no property ; and lived with her grandmother. That her mother was married to one Keller, worth about $2000, who lived in Danube.</p> <p>On this evidence, the court below quashed the order of filiation and maintenance, with costs against the respondents.</p> <p>The sessions clearly erred in reversing the order in toto. It was good, at least, for the weekly allowance. Mo matter where the bastard was settled. The justices at or near where the child is born, are to make the order. (1 R. L. 306.) But the order was also good for the gross sum. There was a previous order of justices for maintenance. This f , , . , , ascertained the amount; and actual payment was not tenal.</p> <p>It did not appear by the evidence below, that Cox was -the father of the child. The respondents were bound to prove this. (1 R. L. 306, s. 12.) ISTor was the child chargeable at all. The husband of the grand- ' mother was abundantly able, and was bound to support it. (1 R. L. 286.) The town never was damnified; nor was it liable for a cent. The gross sum, at any rate, was altogether gratuitous. (4 Cowen’s Rep. 253.) The object of the statute is solely to indemnify the town. (Bac. Abr. Bastardy, (D,) p. 521. 3 Salk. 121, pl. 2.)</p> <p>The question whether Oox was the father, was not raised in the court below; and cannot be listened to here. It must be taken to have been conceded. If insisted on below, it might, and doubtless would have been put at rest.</p> <p>If the order was defective in the gross sum, the reversal should have been confined to that, leaving the good* part to stand. These orders are usually made in anticipation, to meet the probable expenses of the town. In this view, it was valid. If the expenses are in fact incurred, they may then be enforced; otherwise, not. The order, therefore, was valid .m hoto.</p>

<p>A, witness introduced by a party and' i^though^hí" terested to testify against him, may he cross-examined at large, in support of the rights of the opposite party.</p> <p>The party introducing him cannot question either his competency or credibility.</p> <p>A right of entry in land, is devisable, within the statute of wills, (1 R. L. 364,) thougn at the time of the devise, and of the devisor’s death, the land he in the adverse possession of another.</p> <p>The like interest would pass by descent under our statute, (1 R. L 52.) It would be bound by a judgment against the ancestor, and after soi. fa. might be sold upon execution against the heir. Per Woodworth, J. delivering the opinion of the oowrt.</p>

Trespass and false imprisonment; tried at the Chenango circuit, January 18th, 1826, before ¡NelsoH, C. Judge; when the following facts were in evidence: Trask, the defendant, on the 11th of April, 1826, recovered judgment of $37 50 against the plaintiff, Taylor, a freeholder and man of family, before a justice ; and immediately made the oath required by the 3d proviso to the 14th section of the 50 dollar act, (sess. 47, ch. 338, p. 287,) that he would be in danger of losing…

DEBT for the penalty given by the 2d and &l sections of the act to prevent horse-racing, (~ess. 25, oh. 44, 1 R. L. 223,) tried at the Columbia circuit, October, 1824, before WALWOBTH, 0. Judge.

On error from the court of common pleas of the county of Monroe. The record returned from that court was as follows: “ Pleas in the court of common pleas, held at the court house in Rochester, in and for the county of Monroe, of June term, A. D. 1826. *Monroe county, ss: Ira Webster puts in his place Isaac Mills, his attorney, against Abraham Jennings, in a plea of trespass on the case.

<p>On error from the common pleas of Jefferson county. The action was on a parol contract to pay for improvements on land; and was tried in the court below, at their June term, 1826; when a verdict and judgment were rendered in favor of Winters, the plaintiff below. A bill of exceptions was taken at the trial, upon which the writ of error was founded; and the substance of which, with the points made, and authorities cited by counsel, will be found stated in the opinion of the court.</p>

<p>Case for obstructing a water-course, and flowing it back 011 tiae plaintiffs’ mill, so as to render it less useful to them; tried at the Cortland circuit, January 28th, 1825, before Theoop, C. Judge, when a verdict was found for the tiffs. A motion was now made, in behalf of the defendants, for a new trial, on grounds which are stated in the opinion of the court.</p>

Trespass and false imprisonment; tried at the Jefferson circuit, June, 25th, 1825, before Williams, 0. Judge. At the trial, the following facts were in evidence: The plaintiff was a resident of the town of Le Ray, in Jefferson county, having been assessed and paid taxes there' in 1817 and 1821.

On demurrer to the defendant’s 3d and 4th pleas. The declaration was in debt for the escape of one Woodward from the gaol of Clinton county, where he was in the defendant’s custody on a ca. sa. upon a j udgment of this court at the suit of the plaintiff. The escape was laid on the 9th of September, 1826; and the memorandum was of October term, 1826.

<p>Assumpsit against the defendant, as bailee, for not uebvering to the plaintiff a horse and harness, as he had promised; tried at the Saratoga circuit, June 2d, 1825, before' 0. Judge. Plea, the general issue.</p> <p>At the trial, it appeared that the defendant executed to * «a a. the plaintiff an instrument in writing, dated June 29th, *821, by which he acknowledged that he had received of the plaintiff the horse and harness in question, the properíy ^ Fowle, said to be holden by the plaintiff in P^S6 í an(* be stipulated to deliver them to the plaintiff at Waterford, Saratoga county, or to leave them for him °f tbe principal taverns there, on or before the 20th day of July then next. The horse and harness had been, v U i *on the 25th of June, in the same year, levied on by a constable of Waterford, by virtue of two justice’s executions against Fowle, who afterwards and before the receipt was exeGU'*:ei* by the defendant, delivered them to the plaintiff in pledge for the amount of those executions, and a debt due the plaintiff and one Foster King; the whole ^eing considerably more than the value of the articles.</p> <p>The defendant offered to prove, that before the horse and harness were delivered to him, a constable of Washing ton county had levied a justice’s execution against Fowle, , J , , , .. on the same horse and harness; and that alter the defend-bad received them, the latter constable took them from him. That they were also levied upon by executions issued on certain judgments against Fowle, obtained the date of the receipt; and finally, on the 11th of July, were sold on the latter executions; the creditors in these executions having paid up the one first levied, in Washington county, on an understanding with the constable that the horse and harness should be delivered over and sold on the last.</p> <p>The judge overruled this evidence, on the ground that it was not admissible under the general issue.</p> <p>Verdict for the plaintiff.</p> <p>A motion was now made in behalf of the defendant for a new trial.</p> <p>contended that the evidence was admissible under the general issue. (1 Chit. Pl. 471, 2, &c., Com. Dig. Pleader (E. 13.) Wils. Rep. 44; 2 H. Bl. 141; 5 Mass. Rep. 293; 11 John. 531.)</p> <p>He said the defendant was but a naked bailee, who is responsible for gross neglect only. He is not even accountable for the acts of wrong doers. A fortiori, not for the loss of property by act of law. (Bac. Abr. Assumpsit (G.) Pow. on Contr. 248, 9; 2 Ld. Raym. 912 to 915; 2 Esp. Dig. 245, Gould’s ed. Bul. N. P. 72; Selw. N. P. 304, note (7,) Wheaton’s ed.; 1 Esp. Rep. 317 ; 1 Campb. Rep. 139, note; 2 Com. on Contr. 388, 389; 2 Bl. Com. 452; Com Dig. Action on the case for mis-feasance, *(A. 4.) Jones on Bailm. 5, 11, 12, 17, 25, 139, 140.)</p> <p>as to the question whether the evidence was admissible under the general issue, cited 10 John. 111, 246; 12 id. 455; 2 B. & A. 662.</p> <p>That the evidence would not constitute a defense, they cited 1 Cowen, 322; and contended that as the property was to be delivered to the plaintiff during the lifetime of the Waterford execution, the case is not within Brown v. Cook, (9 John. 361.)</p>

On error to the 0. P. of the city and county of New York. Corson declared against Morris, in that court, in ease; *for that the latter maliciously, and without probable cause, preferred a complaint against the former for felony, whereon he was arrested. That a bill of indictment was exhibited to the grand jury, who returned it not a true bill. That thereupon the plaintiff was acquitted, and the prosecution ended.

Ejectmeht, for a farm in Columbia county, leased by H. W. Livingston, (under whom the lessors claim as devisees,) to one Brusee, during the lives of himself and his wife. The tease was dated May 2d, 1798. The cause was tried at the Columbia circuit, September, 1824, before Walworth, 0. Judge; where the only question was, whether the premises were forfeited by violating the covenant of tenth sale in the lease.

<p>Demand of necessary “to ^on^HtU ac"</p> <p>A devise or widow,* in’Heu a“d cepted by her,</p> <p>vise to the W1 tended to be in lieu of dower, may be inferred from the provisions of the will; as where it is inconsistent with the claim of dower. But the incongruity must be plain.</p> <p>Accordingly, where the husband devised to his wife his dwelling house and part of his gardens durante viduitate, with certain of his personal property, &c.; and then devised his form to his two sons, &c., and the wife accepted the provisions of the will; held, that this was no bar of dower.</p>

<p>Oh error from the court of common pleas of the county of Washington. The action below was trover for a chaise *and harness, by Finch against Ackley. The jury, under the direction of the court, found for the plaintiff; on which, judgment was given for him. On the trial, the defendant below took certain exceptions to the opinion of the court, and the cause came here upon a bill of exceptions; the facts in which, so far as they are material to the points • i i -hip t ■ . . „ cided, will be found stated in the opinion of the court.</p> <p>insisted that trover would not lie, in the case presented by the bill. That if the agreement between the parties, set forth in the bill, was not conclusive, the award mentioned as having been made betweenthe parties, must have been. He cited 8 John. Rep. 96; 10 id. 190, and the cases there cited by Van Vechten, arguendo; 1 Caines, 304; 1 Day, 130.</p> <p>cited 2 Caines’ Cas. Err. 200; 7 John, 196; 16 id. 367; 13 id. 492; 6 id. 44.</p>

<p>TROVER for a mare, wagon, harness, and two neckyokes; tried at the Ohenango circuit, July 8th, 1826, before Ni~LspN, 0. Judge.</p> <p>At the trial, the fo1~owing facts were in evidence: Luther Alexander, a constable, on the 17th of November, 18~5, 1evi~ed on the mare and harness, by virtue of t~s~o justice's executions~, in favor of Rathbone, against Oross and Le Barron.. Cross had before mortgaged the wagon to secure $60 to Rathbone, who authorized the constables at the time of the levy, to take the wagon and sell it, to J 7 rm i i pay a balance due upon the mortgage. The constable went to Cross, and informed him that'he must remove the chattels in question, unless the money was paid, or some arrangement effected. They then went to the plaintiff’s house, near by; and on Cross’ agreeing that the plaintiff might take away the property whenever he' pleased, he executed a paper, dated November 17th, 1825, by which he acknowledged to have received this property with other goods, of Alexander; and agreed to deliver the same to him, (A.) on the 15th of December, then next, at the house of Cross, or pay $75. On the day appointed for the delivery, the property could not be found; and on the 30th of December, the plaintiff gave his note to Eathbone *for $70, in full for his liability. Eathbone thereupon discharged the judgments, and indorsed the mortgage satisfied. Cross had, on the 14th of December, mortgaged the property in question to Jerome, one of the defendants, who had full knowledge of all the above facts. The defendants had possession of the property, when afterwards called on for it by the plaintiff; and at first promised to give it up; but afterwards refused. Various values were put upon the property by different witnesses.</p> <p>The counsel for the defendant contended that the plaintiff’s interest was not such as would entitle him to maintain the action; and that, at any rate, he could not recover beyond the sum paid to Eathbone. The judge charged that the plaintiff’s interest was sufficient to enable him to maintain the action; that he might recover the value of the property with interest; and that, as he had been put to considerable trouble, and the defendant (J.) had acted with full knowledge, the jury would be justified in putting a liberal value on the property,</p> <p>Verdict for the plaintiff, $120.</p> <p>moved for a new trial, upon the grounds, (among others,) that the plaintiff showed no right of property sufficient to support the action; and that the damages were excessive.</p> <p>He said the plaintiff was barely the servant or agent of the constable; and whatever he could do, must have been in the constable’s name. The plaintiff acquired no interest by giving a receipt. The general property was in Jerome, the mortgagee; and the constable himself never took actual possession of any part of the property. Neither he nor the plaintiff ever had any possession. The engagement in the receipt was for the benefit of Cross.</p> <p>But suppose the property had actually been received by the plaintiff; it has never been held that a mere receiptor of property taken in execution, can maintain an action for it in his own name. He is a mere naked bailee. He has no interest. The general property is in the debtor; and the special property in the officer. There is no intermediate *kind of property. The receiptor is a servant. He may take the property ; but this right being that of a mere servant or agent, he can never maintain an action in his own name. (9 Mass. Rep. 104. 14 id. 217. 13 id. 394. 5 id. 303. 9 id. 265. 11 id. 211.)</p> <p>These remarks, and the authorities in their support, apply with still greater force to the plaintiff’s right in the waggon. As to this, even the constable was no more than a private agent. Having no right as officer, he had no special property; and of course could transfer no such right to the receiptor.</p> <p>On the point of damages, the counsel cited 3 Cowen, 83; 8 Burr. 1868; 1 Burr. 31; 3 Campb. 477; 2 John. 280; 2 Caines’ Cas. Err. 200; 4 Bin. 457, 460.</p> <p>The mortgage being forfeited, the property of the wagon vested absolutely in Bathbone. Under these circumstances, he employed an agent to call on the possessor and take it. The plaintiff not only gave a receipt; but there was an agreement that he might take possession when he pleased. All parties assented to this. All this was before Jerome acquired any interest under his mortgage. There was virtually a delivery of possession as to the whole of the property; and we deny that the plaintiff stood in the relation of a mere agent or servant, as it seems he would be regarded in Massachusetts. We do not subscribe to the doctrine of their cases. The plaintiff had a special property. Having this right, it is settled he may maintain trover. (1 Cowen, 332. 6 John. 195.) A fiber the agreement and arrangement made between all parties concerned, they, and all claiming under them, are estopped to deny the plaintiff’s right. He was regarded as having a special property. It was agreed that he might reduce that property to possession at any time. The articles were placed completely under his control. A mere naked possession will maintain trover against all but the rightful owner. (1 Chit. Pl. 152.)</p> <p>The damages are not excessive. The case from Binney, which is mainly relied on to limit our damages, on the ^ground of our being bailees, lays down the rule, that damages shall be mitigated only as to a suit by the bailee against the bailor. As to strangers, it agrees ’that the value of the article is to mea'sure the damages. This is the general and well settled rule. The property in the wagon being absolute in R., we are, of course, entitled to the full value of that article.</p> <p>We do not deny that the property of the wagon was absolute in Rathbone; but we do not deny that the plaintiff was anything beyond a mere servant as to any portion of this property. The consent of parties, as to the effect of the receipt, is no more than what the law would imply. It cannot alter the law. Consent will not authorize an agent or attorney to sue in his own name. The right of action would still be in the principal exclusively. The receiptor of property may always take it when he pleases. But this is not as owner.</p>

<p>ig a question jyf there is no dis-Facts, ittatito judgment of ^ iFtents.CtS</p> <p>Mw has éertain indicia, tion to a contract, it will be adjudged fraudulent.</p> <p>frau™081;^3868 mixed question of law and fact; and the iaííed^npon to draw a conelusion tram equivocal facts, and suspicious cir-</p> <p>circumstances combine; as where a man unembarrassed in his circumstances, on the eve of judgments against him, sold out his real estate, which was considerable, to his son-in-law, who was in low circumstances; who gave a mortgage for the purchase money; the grantor still continuing in partial possession, and exercising some control; the son-in-law acting with deference to his directions, making suspicious declarations, and actually taking a fraudulent conveyance of the grantor’s personal property, and removing it out of the county, to avoid executions against the grantor, &e.; all these circumstances, appearing, and hot being explained on the trial; though the jury found in favor of the validity of the grant of the real estate, against a sale by the creditor ; Jield, that a new trial should be granted:</p> <p>The grantee, before he purchased, took the advice of a counsellor at law, upon the question, whether he could safely make tile" purchase, notwithstanding the pendency of the suits against the grantor. Held, that, though he might himself have sought that opinion, and the jury believed that he did so, and that the opinion was fairly given, it ought not to influence them in favor of the grant; as such an opinion, though honest, could not reach all the circumstapees disclosed in evidence. *</p> <p>Ssld, also, that whether the grantee knew that the grantor intended to commit a fraud or not, was not the test of the validity of the'conveyance; for without reference to the grantor’s intentions, the part taken by the defendant, and his acts, might be fraudulent.</p> <p>Where the question is upon the fraud in a conveyance of real estate, a fraudulent purchase of personal property by the grantee from the grantor of the real estate, made after the sale of the latter, may be received in evidence, in connection with other circumstances, to impeach the sale of the real estate.</p>

<p>A covenant todígenerdf ly, throughout YOia. other- ^®> °^a®0T^ trade, in aparan^for a par!</p> <p>dissolved their ^usiness^and their articles of dissolution declared one object of the dissolution to be, that N. should relinquish the business ; that B. should pay him $3000 in various instalments, the last being $750 ; and that if N. should set up the business within twenty miles of their former place of business, he should forfeit that instalment. N. having carried on the business within the twenty miles; held, that this was a bar to an action, on the covenant, for the $750.</p> <p>Held, also, that the covenant to relinquish the $750 was in nature of stipulated damages, and not a penalty; and, therefore, evidence showing that B. was not injured by N.’s trade was inadmissible.</p>

Teoveb, for household furniture, and other articles; tried at the Montgomery circuit, in December, 1826, before Walworth, 0. Judge; when the following facts were . in evidence : The plaintiff was a constable, and held two justice’s executions against Sternburgh, of $50 37, issued on judgments rendered in favor of Ehle and Cook, on the 10th of February, 1824. One execution issued March 31st was renewed July 19th, and again December 23d, 1824.

Assumpsit ; tried at the Wayne circuit, June 13th, 1826, before Walworth, 0. Judge; when a verdict was found , ,, -i * for the plaintiff. The facts are stated in the opinion of the court.

Trespass guare clausum fregit, et de bonis asportatis, for entering a tannery, in the possession of the plaintiff, and carryin§ away a cylindrical heater, used for applying heat to tanner’s bark, in vats and leaches; tried at the Saratoga circuit, in June, 1826, before Walworth, ,0. Judge.

On demurrer to the plea. The declaration was on a promissory note; payee against maker; for $190, dated April 5th, 1826, and payable one day after date. Plea, that on the 29th of March, 1826, the defendant articled to sell the plaintiff a farm; ■ and therein agreed that on the 1st day of April, 1827, on receiving $500, he would convey and give possession.

Ejectment for a lot of ground in the city of New York; tried at the New York circuit, December 9th, 1825, before Edwards, 0. Judge. At the trial, the plaintiff took various exceptions to the decisions and charge of the judge; on which (the verdict being for the defendants) a motion was now made for a new trial, in behalf of the plaintiff. The grounds of the motion were brought before this court by a bill of exceptions.

<p>Trover for a quantity of whiskey and flour; tried at the New York circuit, January 18th, 1826, before Edwards, 0. Judge.</p> <p>t , , ... . . . „ . , , it appeared at the trial, that m the spring of 1824, the plaintiff sent from Manlius, Onondaga county, to the city of New York, 54 barrels of flour and 33 barrels of whiskey, consigned to Herriman & Nash; and which passed from Albany to New York, in the sloop Grenesee. May 24th, 1824, the plaintiff advised the consignees, that the •flour and whiskey had been sent, authorizing them to sell it, and place the net proceeds to his credit: he being in-_ ’ ° debted to them. The sloop reached New York, with the property, on the 27th of June, 1824 ; and one of the consignees demanded it of the captain; and sold the whiskey to one Cooper. The Captain, however, delivered the property to one Harrington, who claimed a right to it, and Harrington sold it to the defendants. The defendants, On the trial, made out no color of right in Harrington, to the flour. As to the whiskey, it appeared that Harrington, , . . , , _ •, , y ° ’ being indebted to the plaintiff, had agreed with him to take the plaintiff’s grain, and manufacture it into whiskey ; the plaintiff to sell the whiskey, and credit whatever it sold for, than the grain would have brought, on his account against Harrington. On the 18th of June, the plaintiff demanded the property of the defendants, who offered to give it up, if the plaintiff would pay $600. The plaintiff offered to pay the expenses which had arisen after the delivery from the sloop; but not for the freight, nor any interest which Harrington had.</p> <p>The defendants’ counsel moved for a nonsuit, on the ground that Harrington was a joint owner, or interested in the whiskey ; and as to the flour, that the action should have been in the name of the consignees. The judge overruled the motion. Verdict for the plaintiff, $700.</p> <p>moved for a new trial. He cited 1 B. & P. 563; 1 H. Bl. 37.</p> <p>cited 1 Camp. 331; 2 B. & C. 401; 2 H. Bl. 590; 10 John. 226; 2 Saund. 47, note (1;) 7 John. 535; 2 Ph. Ev. 118, and the cases there cited; Paley on Agency, 249.</p>

<p>Trespass de honis asportatis, tried at the Monroe circuit, June 1826, before Birdsall, 0. Judge. ' ' °</p> <p>1 veraie was laid in Monroe county. The defendants pleaded the general issue jointly.</p> <p>At the trial, the plaintiff proved, the taking of his goods -n Q.enegee county, by the defendants, who claimed to have acted under certain executions against L. Bradley, issued by a justice of Genesee. The defendant, Hunt, held the executions, being a constable of that county; and levied upon the goods in question as those of L. Bradley, pursuant to the advice and direction of the defendant, Powers; both being first informed by the plaintiff that the property was his. Powers, on the plaintiff’s claim being interposed, told Hunt, that he, (Powers,) would indemnify him against the levy; upon which, he took the property.</p> <p>The defendant moved for a nonsuit, on the ground that the action was local, and should have been brought in *Genesee, within the statute for the more easy pleading in certain suits, (1 B. L. 155,) Hunt acting as constable, and Powers, in his aid. That, at all events, the constable was within the statute. The judge overruled the motion, on the ground that if the jury should find that Powers was not acting by the command of Hunt, but voluntarily and officiously, he (Powers;) was not within the statute; and that Hunt, having joined Powers in the plea under which the evidence was offered, must abide the decision as to him. The judge charged the jury accordingly; submitting to them the question, whether Powers acted by Hunt’s command, or officiously, as having an interest in the executions. Verdict for the plaintiff.</p> <p>now moved for a new trial, on the ground that the judge should have directed the jury to find in favor of Hunt. He said the action as to him was local. The idea that the fate of one must abide that of another who is joined with him in a justification, applies only where they join in a special plea of the matter upon which they justify. When they plead the general issue, one may be found guilty, and the other not guilty. (2 Esp. Dig. 364, and the cases there cited. 1 Saund. 28, note (2.) 14 John. 166.)</p> <p>The plea being entire, and the defense failing as to one, it must fail as to both. (1 Saund. 28, note (2).) The plea, in this kind of action, though not a justification in form, is equivalent to a justification. It is made so by the statute relied on; and the same rule applies as if the whole defense had been pleaded at length. (2 Str. 993, 1184; 2 Wils. 384.) But the reason is the same if it be considered the general issue. (2 Caines, 108; 2 Cowen, 426.)</p>

<p>Assault and battery, and false imprisonment; tried at the Columbia circuit, October 7th, 1824, before Wal^qRTH, C. Judge.</p> <p>At the trial, the plaintiff proved that, as he was leading a horse at the carriage of a cannon, which he and others were taking from Hudson to Taghanick, he was arrested by Haws, the defendant, a constable of the city of Hudson, delivered him into the custody of another of the defendants, Colver. The arrest was by virtue of a warrant favor of Pultney, the other defendant.</p> <p>The defendants offered to prove that the plaintiff, with others, having taken a brass cannon from the custody of defendant, Pultney, at Hudson; and being in the act *of carrying it off, Pultney went to the clerk’s office of the oourt Hudson, and took out a warrant, commanding to “ take the body of John Doe, the person car- • . a. rying off the cannon,” to answer Pultney in a plea of trespasS- That on this warrant the plaintiff was arrested: he .L 7 having been in the act of carrying off the cannon, at and from the time of taking out the warrant,' to the time of the arrest. On objection, the judge excluded the evidénce.</p> <p>Verdict for the plaintiff for $35, pursuant to the charge of the judge.</p> <p>cited 8 East, 328; 2 Taunt. 399; 2 Campb. 271; 3 id. 110; Cowen’s Treat. 328.</p>

On error from the C. P. of Wayne county. The cause came there on appeal from a justice’s court; where Hayden declared against Southwick on a receipt signed, “ Nathan Pierce, for Chad. Southwick,” for 1428 bushels of C., at 28s. per hundred.

Assumpsit on a promissory note; second indorsee againsS second indorser; tried at the Ulster circuit, April 17th, 1826, before Betts, (late) C. Judge, The note was made by Bowe, payable to H. at 60 days, ^or $200; and purported to bear date November 5th, 1825. *k*s note> having a blank for the day of the month, was made on the 27th of November, 1825, and indorsed by H. *he defendant.- It was afterwards delivered by the, maker to the plaintiff, in payment of a debt, who, by…

<p>A writ of error, at the suit of a citizen, in criminal cases, though not capital, cannot issue without the flat of the attorney general.</p> <p>But should he refuse his fiat, in a proper case for error, the supreme court will order him to grant it. A writ of error will not, per se, stay execution in a criminal cause. Per Biker, recorder. See note (a.) But the court below will, on motion, stay execution till judgment be given on the writ of error. Id. note («).</p>

Oi~r error to the Ohenango 0, P. The cause was commenced there in 1821. In that court, Marsh declared against Richard W. Berry and Simeon Berry, in trespass quare e~ausum freg~. Plea, not guilty. The jury found that Simeon S. Berry and Richard W. Berry were not guilty; and judgment was entei~ed, that the defendants recover again~t the plaintiff costs, adjudged to Richard W. Berry and John S. Berry.

<p>On error from the O. P. of New York. The action in the court below was by Adams, as treasurer of the New York hospital, for two penalties of $50, upon the statute, (~ess. 42, oh. 18, s. 35, 5 Laws N. Y. 24, a;) alleged to have been incurred by Vanderbilt, the defendant below, in reft~sing on two several days, to obey the orders of one of the harbor masters of the city of New York, as to stationing his steamboat at his wharf in the city. By the same section, the right of action is given to the plaintiff below. The court below decided that the statute in question was constitutional and valid; and a verdict was found, and judgment rendered for the plaintiff below. The defendant below excepted; and the cause came here by writ of error upon the record and bill of exceptions.</p> <p>' It was contended here, that the general words of the statute should not be construed to extend to owners of private .wharves; or, if otherwise, the statute assumes tc authorize an interference with private property, beyond the power of the legislature. The facts will be found more particularly stated in the opinion of the court.</p> <p>cited 2 John. Ch. Rep. 162; 7 John. Rep. 477; 20 John. Rep. 103, 735; 6 Cranch, 87, 127, 131; 4 Wheat. 516.</p> <p>cited the charter of the city of New York, granting the royal prerogative of government to the city. He said the statute in question has all the essential qualities and ingredients of a police regulation; and is valid on that ground. (Gibbons v. Ogden, 9 Wheat. 178, 208.)</p>

<p>The proceedings upon a petition to the court of common pleas, for the admeasurement of dower, under the statute, (1 II. L. 61, 62,) cannot be impeached, in ejectment for the dower, because tho petition does not show, on its face, that the husband died forty days before it was presented.</p> <p>Itwilibeintended, tbat~ the fact appeared to be so, on the hearing in the common pleas. -</p> <p>under the act. If there be an irregularity in the proceedings of that court, the mode of taking advantage of it, is, by motion, there to set them aside. or by appeal</p> <p>Possession of land, by the husband, claiming ownership, is prima facie evidence of seisin, to entitle his widow to dower.</p> <p>Semble, that a deed granting the possession and improvement of lands, with words of inneritance, will pass a fee.</p> <p>At any rate, an entry and adverse possession under such a deed, for 25 years, will protect the grantee against the claim of any individual.</p>

<p>Assumpsit ; tried at the Jefferson circuit, July, 1827, before Williams, C. Judge. The plea was the general issue, and statute of frauds.</p> <p>At the trial, the plaintiff offered his attorney as a witness. He was objected to as interested. He stated on his voir dire, that the plaintiff resided in Connecticut; and that no security for costs had been filed agreeably- to the- rules of this court; but that he wasindemnified for the costs; and-considered that he had ample security. He was- then, admitted, and proved an instrument addressed, to Hooker, the plaintiff’s agent, in relation, to.the purchase therein men--, tioned, in the following, words: “ Mr., Samuel F. Hooker, sir, I still consider myself holden for the first payment for the land sold to Aaron &• Stephen Chace, in. the winter of 1818. Adams, May 28th, 1819: Ira Thomas. Said payment to be-one hundred and fifty dollars.” The. defendant admitted to. the plaintiff’s attorney, after, this suit was com-, menced, that the instrument was in his own hand-writing, but said he did not expect to be called'upon, It appeared that on. the 28th of January, 1818, a. written contract w.as made between the plaintiff and A, & S. Ghace, for the purchase of some land, by the. latter of the .former,, by which, the first payment of $150, was to be made on- the 1st of June, 1819, It was also agreed,, that as a collateral security for- the first payment; the Chaces should procure.the defendant to execute a note to the plaintiff, with thepurehasers. The. Chaces had paid $71 80. The judge charged the jury, that if they were satisfied with the plaintiff’s proof, they should find in his favor, for the balance of the first payment, which; with interest, amounted to $149 57. But the jury found for the defendant.</p> <p>now moved' for a new trial. He said, a good consideration was inferrible from the instrument. *If a request, on the .part of the defendant, is necessary to sustain the promise, that is to be inferred. The evidence of the contract is in writing; and the statute of frauds, therefore, has no application. The complete indemnity of the wit ness- took away all interest.</p> <p>The consideration for the col lateral, promise, as well- as. the ■ promise. itself; must-be in writing, to.avoid, the statute of frauds. (3 John. 210; 5 East, 10.) But the plaintiff’s witness was incompetent, He was liable for costs. (13 John. 125; Rule 14th of Jan term, 1799.) His being indemnified, would not restore his competency. His" security may fail him; and he testifies under a consciousness of that fact. The cause Was fairly submitted to the jury; and their determination is conclusive. There" is no' pretence-that the proof was not fairly submitted to them.</p>

Easton, Washington county tried at the Washington circuit, December 18th, 1825, before WALWOBTH, 0. Judge.

J. A. Spencer moved for a mandamus to the judges of Oneida 0. P., commanding them to set aside a rule to quash an appeal, taken by default against the relator, on motion of Brace and others, appellees. cThe motion was noticed for December term of the 0. P., 1826; and the hearing postponed to the next term, March, 1827. At this time, the relator’s attorney was in Albany attending the supreme court; and the postponement entirely escaped his recollection.

<p>At the trial, the lessor of the plaintiff proceeded to prove what he insisted was prima fade a title in G., under whom endued; and the judge ruling in his favor, the defendant excepted. Afterwards, the defendant proceeding with proof, it appeared that he derived title from G., the same Person under whom the lessor claimed. The dispute being upon the title of this person, the plaintiff insisted that the defendant’s proof operated as a waiver of his exception; and, on afterwards settling the bill before the judge, claimed to have such proof inserted in the bill. This the judge declined; stopping with the plaintiff’s proof, so as to present his evidence and the exception, without the matter . . . detuned 9.S Qj W&1VCI*.</p>

The caF^as a& respondendum was tested August term, 1826, and returnable the 28th. of October, instant. The defendant put in special bail; neither he nor his attorney knowing anything of the irregularity. On the plaintiff’s declaring, the defendant and his attorney discovered it; now) t^ie next term a®;er discovery, moved to set aside the capias and subsequent proceedings. said, the defendant was too late with his motion, after putting in bail.

The defendant’s land being about to be sold on a fi. fa. in this cause, the plaintiff instructed his attorney to bid ‘$150. The attorney being absent at the day of sale, left these directions with his clerk, who bid only $75: the judgment being $187. The plaintiff, apprehending that other judgment creditors would redeem. A motion was now made to set aside the sale; and for a rule upon the sheriff to re-sell.

<p>On taxation; ¡ngandamend" ing declaration three'copies^ declaration,</p> <p>P. record; that paid11 for ^on putting off testotum^xe^ cution; it appearmg that the ordinary pose.</p>

<p>in eomputadmission as on® rear-</p> <p>But a certaAcate, Aied in not^he*’ reck! ?ned as reiatvious°term!*6</p>

The defendants, indicted with Davis and others, were tried jointly with him at the last circuit court in the city v J 0 and county of New York, before Edwards, 0. Judge. Davis was acquitted; but the defendants, V. & B., were eonvjctecl. now moved for a new trial, on several grounds disclosed in affidavits, which he read. These grounds are fully stated by Savage, Oh. J., in his opinion; but for the purpose of the arguments, it is neces sary briefly to state them here.

On exception taken to the report of an estimate and assessment by three commissioners, this court referred the matter to two new commissioners, continuing one of u old. These three reported; and now moved for a rule to confirm the report. objected, that there should have been three new commissioners appointed to make the second appraisal; or all the old commissioners should have been retained; that the court were bound strictly to follow the statute, (2 R L. 413, s. 178.)

A motion was made, in behalf of the defendant in this cause, for leave to strike out the plea of payment, and plead the statute of limitations.

D. B. Ocden, for the relators, moved to vacate the electi°n °f directors for the Utica Insurance Company, held the 3d of July last.

In ejectment for premises in the city of New York. A verdict having passed for the plaintiff, the defendants made a case upon which to move for a new trial. A bill x of exception^ was also sealed by the judge who tried the cause. This court denied a new trial upon the case; but ordered that the defendants should have the benefit of their bill of exceptions, for the purpose of bringing error. The order was on the 5th of June.

The plaintiffs had issued and caused to be returnee), a fa fa- against the defendants, on which part of the judgment was collected. Afterwards they issued a second fi. fa- without reciting the former, or the proceedings upon The second was for the whole, amount of the ju§gment; but was indorsed for the balance due. moved to. set the second fi. fa. aside for irregularity. moved to amend, if the court should be of opinion that the proceeding was irregular.

A motion was made, in behalf of the plaintiff, to vacate the judge’s order to stay proceedings ; which was granted with a view to a motion, by the defendant, to set aside the report of referees. The proposed motion related to the merits. The defendant had noticed it for argument, and placed it on the calendar, in October term, 1825, and again in February term, 1826. But since that time, it had not been noticed for argument by either party. cited 1 Caines, 484; 3 id. 151.

¿OWEN & Neff, defendants in ejectment, at the suit of Jackson ex dem. Merritt, having recovered a verdict, and judgment for costs against the nominal, plaintiff, caused a <Jeraand of the taxed costs to be-regularly made of the les- , & j sor of the plaintiff' except that no ca. sa. for the costs against the nominal plaintiff, was shown to the lessor at the time.

moved for a re-taxation of costs. The plaintiff made affidavits, in order to move for a new trial, on newly discovered evidence; which was noticed for several successive terms, and placed on the calendar. The motion was finally abandoned.

moved to set aside the . . _ _ . default for not pleading, for irregularity. U. li. Allen, Esq., was named as the attorney on record for the defendant, with whom Mr. E. was a partner as attorney; but the business of the partnership was done in the name of Mr. A. The declaration was served on Mr. E. in his absence on business from his office. On this service the default was founded.

<p>The plaintiff’s attorney, being informed that the defendant’s attorney wished to bring error, the former promised to give the latter notice when he filed his record, so that th e latter might bring error and put in bail in season to stay proceedings. The record being sent to the plaintiff’s counsel to file, if he should think it proper, previous to amending the postea, a motion for which was in plation, he filed the record; and no notice of this was given to the defendant’s attorney, till after 4 days had elapsed from the time of filing it. A fi.fa. was, in the meantime, levied</p> <p>A motion was now made for leave to bring error, and . o i put m bail, so as to stay execution.</p> <p>cited 9 John. 66; 17 id. 34; Dunl. Pr. 1138.</p>

The defendant having taken a bill of 'exceptions at the ^ntended to bring error.

This cause being noticed for trial, the defendant obtained an order to stay proceedings, with a view to move that all proceedings stay, on the part of the plaintiff, till security for costs in a former cause should be filed, was now made. , ,. lhat motion

On the 15th of May, 1826, at New-York, the defendants moved for, and took a rule setting aside a verdict against them- with all subsequent proceedings, they paying the costs of the trial and of opposing the motion; the judgment to stand as security. June' 12th, a copy of this rule serve A motion was now made, in behalf of the defendants, to set it aside as irregular. cited 1 Dunl. Pr. 353; 2 Cowen, 598 & 599, and 600, note;(b) Tid. Pr. 508, note;(y) Imp. K. B. Pr. 252.

The plaintiff’s attorney in the original cause, having received notice from the attorney of Sutton, the defendant, that Stufin, the defendant in this suit, had become special bail, proceeded to judgment against the principal; and afterwards against the bail. The judgment against the latter was perfected in May term last; and a fi. fa. issued and 1 J 1 J J levied. The capias ad respondendum, in the last suit, was returnable on the last return day of February term.

The return' to the alternative mandamus granted in February term last, as stated in 6 Cowen, 593, S. C., agreed substantially with the facts mentioned there, except that now it was shown affirmatively, that the appellee did not discover the defect in the bond till during the trial; and lust before the motion to dismiss the appeal.

A plaint in replevin was issued, and delivered to the sheriff of Washington -county, -against the relator, at the suit of Herroun, before the December term of the common pleas of that county, 1826. Upon this plaint the goods . , / r 0 were dehvered: but the defendant was not summoned till after the December term. The summons was to appear at the March term thereafter.

<p>h ™eage on ad 6 Stestifrm.put6d0bdth°fcr going ana returning.</p>

This action was brought in the 0. P. of the city and county of New-York. The defendant there pleaded two pleas; the general issue and infancy. To the latter the i • • w» i i - plaintiff demurred; upon which judgment was for the defendant.

At February term last, the defendants obtained, on motion for judgment as .in. case of nonsuit for not proceeding trisil, a rule that the motion be granted, unless the plaintiff should stipulate to try at the next circuit, and pay cercogt& rphe stipulation was given, and, on the 81st of ;aRt, the costs, being first duly taxed, were demanded J ’ ' ° of A. ¡Neeley, one of the lessors of the plaintiff.

On certiorari from the general sessions of Herkimer county. The defendants were convicted of a riot in June last, at the Herkimer sessions.

The relator attempted to appeal to the Madison 0. P. from a judgment before a justice -in favor of Bennett against her; but the bond was signed “ Anna Brooks,by (x. & P., ... _ , n ' her attorneys.” It was executed properly by the surety, On motion by the -appellee, the 0. P. quashed the appeal, it not -appearing that there was any authority -in the attorneys -to execute the bond. The court also held that it -was not sufficient for a surety alone to execute.

EJEOTMENT for part of lot No. 1, in the su1~c1ivision of lot No. 1, in the 9th allotment of the patent of Kayaderosseras; tried at the Saratoga circuit, on the 11th day of December, 1824, before WALWORTH, 0. ~Judge. At ~he trial, the plaintiff deduced a title from Peter Fauconier, one of the patentees, to Thomas Clark and.

The plaintiffs, Packard and three others, declared against the defendants, for that the plaintiffs, being partners under the firm, of Packard & Growen, certain differences arose be tween them, acting as agents of the defendants, as therein after mentioned, and one Otzen, concerning the freight and average on a cargo of iron, landed from the Swedish ship Fortuna, of which Otzen was captain, at ^Havana; that thereupon, in consideration that the plaintiffs would continue the…

Action on the case; tried at the New York circuit, in March, 1825, before Duer, 0. Judge. *The declaration stated that the plaintiff was a merchant tailor at New York, engaged in certain trade as such, New Orleans, and in possession of certain information in relation to that trade.

<p>On demurrer to the replication. The third count of the declaration was for money had and received.</p> <p>The second plea was to this count alone; and stated that the money mentioned therein belonged to one Yeaton, for whom the plaintiffs were trustees; that the promise alleged Was made to them in that capacity. That before the making of the promise, the defendants and one Parry (Parry being trustee for the defendants) recovered a judgment in the state of New Hampshire, against Yeaton, in which the defendants were at the time, and now are solely interested. The plea then proposed to set this off against the plaintiffs’ claim.</p> <p>Eeplication, denying, 1, That the money mentioned in the count belonged to Yeaton; 2. Denying that the promise was to the plaintiffs as trustees of Yeaton; 3. Denying that Parry was trustee of the defendants, for the money awarded by the judgment; 4. Denying that the defendants were solely interested, &c., as alleged in the plea.</p> <p>Special demurrer; assigning for cause that the replication *is double (showing the above four enumerated particulars for duplicity;) and that it tendered two distinct issues; and the plaintiffs had attempted to put in issue all the matters mentioned in the plea.</p> <p>cited 1 Chit Pl. 578, 625; 3 Caines’ Rep. 160; 3 John. Rep. 318; 10 id. 400; 2 id. 464; Bac. Abr. Pleas & Pleadings, (K.) pl. 1; 3 Lev. 243; Barn. 363; Str. 317; 2 Saund. 49; Com. Dig. Pleader. (F. 16;) Plowd. 194.</p> <p>cited 1 Burr. 316; 2 Barnw. & Cresw. 908; 3 Cowen, 320; 13 John. 9; 10 John. 396.</p>

On demurrer to the declaration. This was in covenant a charter party of affreightment. The defendant craved oyer; upon which the instrument was set out on the record follows: “ This charter party, &o., indented, &c., between Cant. Gryles P. Stone, part owner of the good ketch Greorge, &c., whereof Gyles P. Stone is at present master, on the one part, and Timo. IT.

<p>Assumpsit; tried at the Mew York circuit, Movembei 9th> 1825, More Edwards, 0. Judge.</p> <p>The case at the trial was this: Bogert & Kneeland consigned 36 bales of cotton to the plaintiffs at Havre, in vember, 1818. One of the plaintiffs, La Farge, being in Mew-York, made an advance of 20 cents per pound, upon the cotton, then valued at 30 cents. The letter of *instructions from Bogert & Kneeland, informed the consignees, the plaintiffs, that the cotton was shipped for account of Messrs. Braham & Atwood, of Huntsville, Alabama; and expressed a hope and request that the cotton might not be sold at a loss on the invoice. The cotton was sold for less than the advance; and this action was brought to recover the deficiency.</p> <p>It appeared that these parties had submitted the subject matter of this suit to a committee of the chamber of commerce in the city of Mew York, who had received the written statements of the parties; but as they differed on some material facts, and as that tribunal does not pass upon contested facts by the examination of witnesses, they declined making any award or decision.</p> <p>The plaintiffs introduced and read in evidence, the statement made to the chamber of commerce by Bogert & Kneeland; in which it is stated that La Farge saw the invoice before the advance was made; and knew that Bogert & Kneeland were the mere agents of Braham & Atwood.</p> <p>The plaintiffs’ counsel then offered to read La Farge’s statement before the chamber of commerce; and further, to show that it had been submitted to Kneeland before his answ;er was made. This was objected to; but admitted. It was not proved, however, that Kneeland had previously-seen La Large’s statement; but only that the practice oL that tribunal required this. In his statement, La Large denied any knowledge or information of the cotton belonging to Braham & Atwood. It further appeared, that when the account sales were produced, Kneeland said the balance would be paid when it could be collected from Braham & Atwood.</p> <p>When the advance on the cotton was received, it was immediately carried to the credit of Braham & Atwood by Bogert & Kneeland, the former having still a large balance in their favor. That balance was, by order of Braham & Atwood, transferred to, and credited on Bogert & Knee-land’s account against Braham' individually; and a copy furnished to Braham containing the credit. After *such credit to Braham, there still remained and yet remains, a considerable balance due from him to the defendant. Ho further transactions had taken place in account between the defendant and Braham & Atwood; and no money had been paid to them on account of the advance.</p> <p>The judge charged the jury that the letter of instructions was not so positive as to restrict the discretion of the consignees, as to the sale of the cotton. That the plaintiffs had shown enough to entitle them'to recover against Bra-ham & Atwood. But as the defendant acted as agent only, and disclosed his principals; and had subsequently appropriated the balance, with Braham & Atwood’s consent, he was not liable.</p> <p>The jury, however, found a verdict for the plaintiffs, of $771 71.</p> <p>now moved for a new trial. He said the statements drawn up by La Large,, for the committee of the chamber of commerce, were improperly received in evidence. (1 John. Ch. Rep. 131.)</p> <p>But the loss, if any, arose from the plaintiff’s misconduct, in selling for less than was directed by the letter of instructions. (3 Cowen, 281; 6 Cowen, 128.)</p> <p>Again; the defendant acted as agent, and revealed his principals; and, therefore, is not liable.</p> <p>Bat if there ever was any liability upon the defendant, it was discharged by the arrangement between him and the house of Braham & Atwood, in pursuance of which the balance was carried to the credit of the former. This was an appropriation of, and equivalent to the payment of the money over to the principals.</p> <p>Besides; the defendant’s liability was discharged by the plaintiffs accepting and agreement to pay when in funds, i. e. when the money should be collected of Braham & Atwood.</p> <p>The instructions were not of a character to bind the plaintiffs as to price. (3 Cowen, 281; Pal. on Ag. 294, 304, 305.)</p> <p>The defendant, not having paid over the money, is legally bouifd to refund the deficiency. Placing the amount to the credit of his principals, is not such a payment as will exonerate him.</p>

<p>ASSUMPSIT on a policy of insurance against fire; tried at the New York circuit, December 5th, 1825, before EDWARDS, 0. Judge; when the plaintiff made out the following case:</p> <p>The defendants, by a policy, daly executed, insured against fire, for the plaintifi~ a large quantity of wines and other liquors, valued at $3000. Certain conditions were annexed to the policy, and. made part of the contract, The ninth condition required of the insured, the production of certain documents, and, (among others,) a certificate under the hand of a magistrate, notary public, or clergyman, that they were acquainted with the character and circumstances of the insured; and that, having investigated the circumstances of the loss, they knew or believed that the insured had sustained loss' to the amount mentioned; and until such proof &c., should be produced, the loss should not be payable.</p> <p>The plaintifi in his declaration, averred that the property was burnt, &c.; that the plaintiff procured and produced the certificate of Robert J. Oheeseborough, a notary public, that he had examined into the cause of the loss, and expressing his opinion thereon, as required by the policy.</p> <p>Cheeseborough, the notary, was examined as a witness; and testified that he was employed to make out the preliminary proofs of the plaintiffs’ loss; that he delivered certain affidavits; that on the 27th of April, 1824, he called upon the president, while in the office of the company, and stated that he, the witness, had in his posession a certain deposition, and also, a notarial certificate in relation to the fire. He told the president, (which was the fact,) that, in drawing his certificate, he had omitted to state his own opinion of the amount of the loss, having understood that full proof of the amount had already been '“made; that he had made but one notarial certificate, which he intended to serve on the Washington Insurance Company who had underwritten on the same property; that if the company required it, he would make out a new certificate, expressing his opinion. To which the president replied, that he need not make a new certificate; that they would not require the formality of his expressing his opinion; that service of the certificate he had drawn on the Washington Insurance Company, would be sufficient.</p> <p>The defendant’s counsel objected to the sufficiency of the preliminary proofs. The objection was sustained by the judge, and the plaintiff nonsuited.</p> <p>now moved to set aside the nonsuit, and for a new trial. He said, it is well settled, in regard to marine policies, that full preliminary proof may be waived. (9 John. 192, 196.) The same reason applies to policies ágainst fire. This is a case of express waiver, by which the condition precedent was discharged. (Rol. Abr. 453, 454, Condition, (N.) pl. 5, cites 3 H. 6, 37.)</p> <p>The president was competent to waive the proof. He was acting in his hours of business as the ostensible agent of the company; and they should be bound by his acts. A. by-law might be inferred, conferring authority so to act. It is impossible for us to know the extent of his authority; or how far he may be limited at private meetings. Nor are we t)0Un¿ to look to that. He is to be regarded as a general agent. ' His power as such may be inferred from the usual manner of doing business by the like corporations. At least, it lies with the company to show the want of authority. The question should have gone to the jury-</p> <p>The averments as to the preliminary proofs were not supported by the evidence. They state a strict compliance with the condition, and should have been literally proved. (6 T. R. 722. 2 H. Bl. 577, note.(a) Condy’s Marsh. 808, et seq.)</p> <p>*The president had no power to waive the proof. (2 John. 109, 114,) and the cases there cited by Thompson, J. The charter of this company, sess. 45, ch. 23, s. 9, 6 Laws N. Y. 16, a.) This charter requires the concurrence of the president and one-third of the directors, on the transaction of business. Per se, the president has no power to do anything. The onus of showing authority lay with the plaintiff. ' If there be a general agency, the proof of this always lies with the party who would avail himself of it. We admit that a corporation may act by a general agent; but the agency must be proved. The plaintiff was bound to make out the president an agent quoad hoc, by showing a series of like acts, recognized by the company.</p>

Brown, the relator, sued Miller before a justice of Dutchess county, who rendered judgment for Brown, of about 30 dollars. Miller appealed; and a verdict passed in his favor of 250 dollars. A motion for a new trial made Brown was denied; and the proceedings stayed by order, for several terms, with a view to repeat the motion f°r a new trial.

Ii~ the first cause, Gilman had judgment for $220; previous to which, Miller had obtained judgment in the second cause, for $233 96 in the 0. P. of Montgomery county.

On habeas corpus, directed to Col. S. Thayer, superintend* ant of the corps of engineers at West Point; issued by, and returned to the recorder of the city of New York, . Carlton enlisted into the service of the United States; and is claimed to be detained by Col. Thayer, as a regularly enlisted soldier. He is, in fact, now within 21 years J ' of age, and has a guardian, who never consented to his enIktment.

ON habeas corpus to the sheriff of Oolumbia. Two suits were commenced, and judgments obtained in this court against Badgley; in both of which Wager became special bail. In one, a Ca. sa. issued; and the defendant being arrested by the sheriff of Columbia, Wager became surety for the jail liberties; whereupon Badgley escaped.

In an action on covenants of seisin, and against incumbrances in a deed of land, the defendants’ attorney pleaded simply non est factum. At the trial, before Emott, G. Judge, the plaintiff relied on the covenant of seisin only; and rested on proving the deed. The judge ruled that this proof sustained the action, without proof of any thing more.

The defendant, a trader in the city of New York, but who l°dge(^ at Brooklyn, having put in special bail, the plaintiffs took judgment against him for $2574 91, which they assigned to Dyett, whose attorney, supposing the step regular, isued a ca. sa.

This cause being referred, the referees reported in favor of-the plaintiff, to about $1500 ; and on the ground that ^ rePort was wrong, except as to about $300, a motion was pending to set it aside upon the merits. With a view that motion, the defendant had obtained a commissioner’s order to stay the plaintiff’s proceedings, “ till the further order of the court.

<p>This cause being called for trial at the circuit, and there being a deficiency of jurors in the regular panel, a tales de drcumstantibus was awarded; and the sheriff summoned on the spot one Olapsaddle, whose father had married the widow of the defendant’s brother.' Clapsaddle’s father died before the trial; and his widow, also the widow of the defendant’s brother, lived in the house with Olapsaddle.</p> <p>The verdict being for the defendant, a motion was now made, in behalf of the plaintiff, to set aside the verdict for ’ 1 1 the incompetency of the juror. As an excuse for not challenging the juror, it was shown by affidavit, that the plaintiff was old, infirm, and very deaf; so as not to be apprized , , , . n . that the talesman was called till alter he was sworn, and it was too late to challenge him. And he was unknown to the counsel.</p> <p>It was insisted for the plaintiff, thafr the law recognizes the relationship by marriage; that husband and wife considered as one ; and, in that view, the defendant was uncle to Olapsaddle; that the kin being within the 9th degree, was a cause of principal challenge. (3 Bl. Com. 363.</p>

Aikih having obtained judgment against Southwick, Ten Eyck, sheriff of Albany, being indemnified by Aikin, levied on the property of Satterlee & Satterlee, and sold it as Southwick’s, under a ft. fa. at the suit of Aikin. 1 he Satterlees sued Ten Eyck in this court for the trespass; and, at the last Albany circuit, obtained a verdict of , ... . , ... $500 ; on which, at the present term, they were entitleda to judgment, with costs.

• ON certiorari to a justice's court, of Saragota county. Gleason & Tuttle sued Moody and 4 others, by summons, which was served on all the defendants below. Issue was joined, and the cause tried by jury; the defendants below all appearing by attorney. Verdict for the plaintiffs below, against all the defendants jointly.

In debt on an arbitration bond.. There was a variance between the oyer furnished by the plaintiff, and the bond given in evidence at the circuit; notwithstanding which, the judge directed a verdict for the plaintiff, subject to. a motion to amend, .

Fulton obtained judgment before a justice of Steuben eounty, against Zimmurman, who appealed to the Steuben O. P. By mistake, the appeal bond did not contain the name of the surety in the body of the bond, any where; but he signed and Sealed; and the bond was perfect in every other respect. Fulton made a motion in the G. P. to quash the appeal ' on that ground; which was denied. A motion was now made for a mandamus commanding • the court below to quash the appeal.

^ toover for flour and lard; tried at the last Mew York circuit, the verdict was for the plaintiff, against the defendants, a corporation aggregate. now moved in arrest of judgment, on the ground that trover would not lie against this corporation. He ,said they were chargeable as a corporation, with no act, which their charter does not give them power to do. To warrant their being charged in this shapé, they must have done something which affects all the stockholders.

The defendants returned to an alternative mandamus, commanding them to set aside a rule quashing an .appeal, &c., or show cause, &c., that, at the February term of the Dutchess C. P. 1827, an appeal from a justice’s court by Gould and others, appellants, and Husted, appellee, called on to be tried. That, according to the return of the justice, the cause was tried before him, November 4th, 1826 ; and on the 8th he rendered judgment.

This cause was tried at the last September circuit, on issuesjoined by consent, on all the counts in the declaration, in consequence of the decision, ante, 434, S. 0 At the trial, (which was before Walworth, 0. the plaintiffs offered in evidence the deposition of Heme-of terio Munusuri, a foreigner, taken debene esse, before the recorder of New York, on the 22d day of March, 1826, while the demurrers to all the special counts were pending and undetermined.

At the last term, a rule was made staying all proceed ings on the execution in this cause, until further order; on the ground that a writ of error had been brought. (Vide ° o \ ante, 417.) on affidavits that personal property had been taken, and was now in the hands of the sheriff, moved that he be allowed to proceed and sell.

MOTIO1~ to set aside the certiorari in this cause. A feigned issue was ordered by the court of common pleas of the county of Columbia, on motion of Williams, to try a question between these parties as to alleged fraud in a ear. tam judguient of that court, for about ~1O,OOO, entered by co~fession, in favor of Hosmer against Patterson. The is~ sue was noticed for trial in the 0.

<p>Under the statute against horse racing, & Bj 'and %thk statute against f B^the loser the stake hoimanding the money of him before it is paid over to winner.</p>

OASE; tried at the Olinton circuit, January, 1827, before WADwoRTU, 0.

a Mansfield. [*507] #Ebüjparte BeAdlestone. A at~spio~ of Essex county rendered a judgment for the relator, who was sued by Phelps, for 6 cents damages, and $5 costs. The whole costs of both parties before the justice, as justice's, constable's and juror’s fees, amounted to $7 64. Phelps appealed; but paid the justice only the $5 06, with 75 cents for making the return; and refused to pay the balance of the whole costs accrued, the $2 64. On this ground, the 0.

The capias ad respondendum was issued against the defendants as joint debtors; but Bowe only was arrested. ° , It was returned cepi corpus as to him, m May term, 1827. the 8th of June, the plaintiff’s attorney delivered a declaration to the defendants’ attorney, de bene esse ; and on the 6th of July following, both defendants appeared by putting in special bail.

This cause was noticed for trial at the City Hall of the city of New York, in the first circuit, to be holden on the 4th Monday of September, 1827; and was tried before WALWORTH, the circuit judge of the fourth circuit, on the 19th of October, to which time the circuit was continued from the 4th Monday of September. Both parties appeared *by their counsel at the trial.

This cause was tried at the same circuit with the preceding one, Walworth, 0. Judge, presiding, on the 22d of October, 1827. Edwards, 0. Judge of the first circuit, was, on the same day, engaged in holding his stated equity term of that circuit. The jury found for the plaintiff.

This cause was called for trial on the 22d of October and an inquest taken against the defendants by de - fault, at the circuit mentioned in the last cause. The senior ■ . , . counsel was, at the same time, absent, being engaged m e(luity court for the 1st circuit; and declined to appear in this cause, for the reason that he supposed the law circuit irregular. The junior counsel also declining to appear for the ganxe reason, the default passed.

A motion having been made at the last August term, in behalf of the defendant, for a perpetual stay of proceedings in this cause, the court suspended their decision till the present term, on proof that the affidavit of one Wilson, of the county of Allegany, would probably be material in resisting the motion; and that there had not been time to procure it intermediate the notice of the motion and the time when it was made. , On now renewing the motion, it appeared by a letter…

The defendants’ attorney, not knowing where the plain^s’ attorney resided, caused a notice of retainer to be served, in vacation, on his (the plaintiffs’ attorney’s) agent, The attorneys, in fact, resided within 40 miles of each other.

In trover for two promissory notes, the declaration varied from the notes a few cents in setting them out; but the iu3ge at the circuit directed a verdict for the plaintiff not- ** x withstanding the variance; and a case was made on which moye for a new trial, on this ground among others. A motion was now made on the part of the plaintiff, to amend the declaration, so as to make it conform to the true amount of the notes, .

The defendant, after obtaining a discharge under the act to abolish imprisonment for debt in certain cases, (sess. 42, ch. 101,) was, under an order of a commissioner, arrested and holden to give bail to the sheriff in this suit for a debt due previous to the discharge. A motion was now made to discharge him on common bail, founded on an affidavit of the discharge. But the affidavit on which the commissioner made the order was not shown.

The plaintiff declared on the 23d of June last; and on the 12th of July, the defendant pleaded 4 pleas. On the 26th of July, the plaintiff replied, taking issue on 3 pleas; but he replied specially as to the other, with the usual rule an^ notice to rejoin in 20 days.

This cause was commenced in the Monroe 0, P.; and being noticed for trial at the last June term of that court, a *habeas corpus was delivered and filed with the clerk, re* tamable at the last August term of this court. Shortly after the June term, the plaintiff’s attorney searched the O. P. clerk’s office; and not finding the habeas corpus, supposed it to have been returned.

THE relator and 11oiiey submitted their matters in difference to arbitrators by general arbitration bonds, in the penalty of $5000, conditionediu the usual form; agreeing that the bond and submission be made a rule of this court. The arbitrators, on the 9th of September, 1826, awarded that Ho11~y should give WaUis his (H.'s) promissory note at one year, indorsed by two persons named, for $13,614, with interest.

In a cause of Phoenix against Coster, in the C. P. of New York, judgment was entered at the last December term of that court, for the plaintiff, on an assessment of damages by the clerk. But there was no rule previously entered for interlocutory judgment, nor any rule for the assessment. At the last September term, on motion of Phoenix, that court allowed both the omitted rules to be entered nunc pro tunc, on P.’s affidavit that the omission was unintentional.

<p>. , An amend-men* granted ™ror,Cafter assignment rors; by entering a nolle prosegui on the reeord returned, ney counts; havingdambegen assessed below by the clerk, on these counts, with one upon a promissory note in the same declaration.</p> <p>And this though the defendant below had been committed on a ca. sa.; and a suit brought /or his escape against him and his bail for the jail liberties.</p> <p>But the amendment was granted on paying the costs of the motion to amend, and of the writ of error.</p>

On error from the Erie C. P. The judgment of that courti which was in favor of Flynn, was reversed, on the sole ground that it appeared of record to have been entered in vacation. The judgment below was upon the report of refereeS. It was now moved that the rule for reversal be so amended, as to allow the court below to proceed,, and give a new and Ie2u^ar judgment upon the report.

The defendant having been indicted in the Oneida general sessions, for perjury, removed the cause into this court by certiorari; so that it stood on the civil side, and was tried at the circuit. The defendant being convicted, the district attorney moved for a capzas against him, he being out on bail. On the 17th of October, the district attorney filed the n'isi prius record, with the postea, &c. The defendant had not been arrested on the capias, nor did he now appear.

moved, at the last May term, for a mandamus to the acting canal commissioners, Messrs. *Samuel Young, Henry Seymour and William 0.

<p>An indict^¡^cy^defraud individuals of private property, must set forth the means agreed upon by the conspirators. Vide this case in connection with Lambert v. The People, 1 Cowen, 166.</p> <p>It is in the discretion of the court to quash an indictment for insufficiency, or put the party to a motion in arrest; and where the question is doubtful, they will put him to the latter. Otherwise where it is clear.</p> <p>As where the question is settled by the court of errors in another cause.</p> <p>Manner in which the court will inform themselves as to the ground of decision in the court of errors.</p> <p>Quashing an indictment as to one of several defendants, quashes it as to all</p>

On certiorari from a justice’s court, rendered under the 60 dollar act of April 12th, 1824, (sess. 48, ch. 238,) the iudgment was reversed; and the plaintiff in error taxed his costs at 50 dollars, for which he took judgment and issued execution. A motion was now made to set aside the judgment and execution, so far as they respected the costs, for irregularity.

cerlaorari from a justice’s court, under the act of April 12th, 1824, (sess. 47, ch. 238.) The affidavit on which the writ was founded, was made more than .30 days after the judgment was rendered. A motion was, therefore, now made, on the .coming in justice’s return, to quash the writ for irregularity, for that cause among others. *It was agreed, however, that if the court should be 0 ’ ' ' . against the motion, the cause should be informally subrnit- , j ' ?n lts merits.

<p>poration has a general power to purchase Where a cor-Teal estate, but is restrained by a proviso that it shall purchase only for corporate purposes, nd it buys land at sheriff's sale, the intendment is, tliet the purchase is within the power of the corporation, and the party contesting its capacity must show that it is within the proviso.</p> <p>S. g. The Peru Iron Company, incorporated by the statute, (sess. 41, ch. 263.)</p> <p>A judgment of more than 10 years standing, its lien as to Iona fide purchasers and jurors judgments having expired within the act of 1813, concerning judgments and executions, (1 L. Xi. 500, s. 1,) ranks, in effect, as a. judgment junior to later judgments; and may redeem from a sale under them, according to the statute, (sess. 43, ch. 184.)</p> <p>It continues a lieu as to the judgment debtor and his heirs.</p> <p>Under the act, (sess. 43, ch. 184, s. 3,) a, senior judgment creditor may redeem from a sale upon a junior judgment.</p> <p>A purchaser of land at, or one who redeems from a sheriff’s sale upon a junior judgment, or upon a judgment whose lien has expired by the lapse of 10 years, acquires all the interest of the judgment debtor; becomes, in effect, his grantee; and may redeem as such, within 12 months after a sheriff’s sale upon a senior judgment.</p> <p>A sale of land upon execution does not carry a title, but only a lien, till after 15 months.</p> <p>One who acquires title to the land of a judgment debtor by purchase, at a sheriff’s sale, being considered a grantee; on his redeeming within 12 months from a sale upon a senior judgment, the latter sale becomes void.'</p> <p>Semble, that one having purchased land at sheriff's sale, acquires, at first, a mere lien, which he may release or discharge, without the consent of junior judgment creditors.</p> <p>A junior judgment creditor pays a purchaser under a senior judgment which he owns, his purchase money, with 10 per cent.; and takes an acknowledgment of the payment, an assignment of the judgment, and all the purchaser’s interest in the land, with an order on the sheriff to convey to the person paying. Held, that the person paying is to be considered a redeeming creditor; not a mere assignee.</p> <p>Where one comes to redeem'land sold on execution, from one who has before redeemed; and the latter claims to have an increased payment to him as assignee of a judgment in virtue of which he redeemed, he must furnish proof of his right to such judgment; and it is not enough to furnish a mere memorandum, and give notice of the assignment. .</p> <p>Though a judgment creditor has once redeemed upon his judgment, and taken a title, it is not a satisfaction; and he may redeem again in virtue of the same judgment; especially from a sale on a judgment, senior to his own and the one from which he first redeemed.</p> <p>A tender by one judgment creditor to another, does not discharge the lien of the latter.</p> <p>Where several judgments are of more than 10 years’ standing, they rank in relation to one another according to their actual priority of date, the same as if the act, (1 R. L. 500, s. 1,) had never been passed.</p> <p>A short payment, on attempting to redeem, is a fatal omission, and renders the redemption void; though it be by mistake of the sheriff to whom the money is paid, and he assume upon himself to make it up to the purchaser from whom the redemption is sought to be made.</p>

Judgment being in favor of the plaintiff in the first cause, by confession on bond and warrant, on the 24th of ^November, 1826, his attorney enclosed a fi.fa. in a letter to a deputy sheriff of Columbia, who received it the same day; and on the 4th of December, levied on the defendant’s personal property. A fi. fa. in the second cause came to the hands of the under sheriff of the same county, January 3d, 1827; and was immediately levied on' the defendant’s personal property.

On the trial of this cause, after the judge had concluded lis charge, several of the jurors requesting permission to go.out, the judge told them they could go accompanied by an officer. One of them, misunderstanding the charge of the judge, while out separated himself from the officer, and drank about l-3d of a gill of brandy. The verdict was for the defendant.

<p>The first suit was.assumpsit for a total loss on a valued policy of insurance upon the ship Pallas, owned by the plaintiff, valued at $10,000, the sum subscribed, on a voyage at and from New Orleans to Havre; and at and from thence, back to a.port of discharge in the United 'States, The cause was tried at the New York Circuit, April 15th, 1826, before Walworth, C. Judge.</p> <p>On the trial, the policy was produced and proved, bearing date Hovember 24th, 1824. It appeared that on the 22d, the Pallas, being seaworthy, left New Orleans’ .with a .full cargo of cotton; and proceeded on her voyage the Mississippi. On the 23d, she struck upon the spit, a north of the bar at the mouth of that river; and on the 24th grounded on the bar. In consequence of injuries received here, she. was obliged to put back to New Orleans *to be repaired, where she arrived on the 5th of December. On the 6th, and several subsequent days in that month, she underwent the proper examination and surveys by the port wardens; who recommended a sale, in consequence of the large amount which was required to repair her. On the 17th of January, 1825, she was sold accordingly by the master, and Bussell the consignee. This was also ’sanctioned by the examination of Andrew Seguin, master carpenter, and captains Jacob Forman, W. Fosdick and Edward Hicoll, who also made a survey, and reported in favor of a sale. The ship brought, at a well attended auction, $2,800. On the 21st of January, 4 days after the sale, the plaintiff abandoned the ship to the underwriters as for a total loss: and now claimed $8,431 21, the amount of that loss, after crediting the net proceeds of the sale; and charging interest from the day of the abandonment.</p> <p>It farther appeared that the Pallas was originally sheathed with copper; and that in consequence of the disaster, it became necessary to re-sheath her in some way. The article of copper could not be procured for this purpose at New Orleans; but was procurable either at the city of New York or at Havre : not nearer than New York. That a sheathing of wood would render her sea worthy, and competent to the performance of the voyage with a full cargo; but on her reaching New Orleans, the cargo was landed; and the shippers declined re-shipping, unless she was first sheathed with copper. The purchaser finally sheathed her with wood; completing the repairs about the 1st of May, 1825. A sheathing with copper, if it had beer procurable at New Orleans, would have been much more expensive there, than at New York or Havre.</p> <p>The counsel for the parties agreed that, for the purpose of determining the comparative amount of repairs whicl would constitute the right to recover for a total loss, th valuation in the policy, of $10,000, should be taken as the true value of the vessel.</p> <p>They then proceeded to evidence upon the comparative amount of repairs; the question being the usual one; whether *the ship was deteriorated by the disaster to more than one half of her value.</p> <p>For this purpose the estimate exhibited by the plaintiff as a part of his preliminary proof, was read on the part of the defendants, by consent. Depositions were read and oral testimony received on both sides.</p> <p>The counsel for the defendants prayed the judge to instruct the jury,</p> <p>“ That, for the purpose of ascertaining whether a constructive total loss had occured, the sum at which the ves-. sel was valued in the policy, was to be assumed, &c.” (Agreed to as above mentioned.)</p> <p>“ That the plaintiff had no right to abandon on the ground that the ship was incapable of being repaired at Hew Orleans, because materials for re-coppering her could not be there procured; but if the jury- should be satisfied, from the evidence, that the vessel could have been repaired at New Orleans, without re-coppering, so as to render her competent to perform the voyage insured with a full cargo, the abandonment could not be sustained; and the recovery of the plaintiff must be confined to a partial loss. And that, in estimating the expense of repairs, no repairs for defects existing prior to the peril which had occasioned the loss, or arising subsequent to the arrival of the vessel at New Orleans, were to be taken into calculation, unless such repairs were necessary to render the vessel seaworthyi”</p> <p>The counsel further prayed the judge to instruct the jury,</p> <p>“That there was no evidence to justify the sale of the vessel, on the ground of necessity ; and that no circumstances had been shown, to warrant the sale, even to the supposition that a technical total loss had occured. And that the sale having been made by the master, and Mr. Russell, the agent of the assured, prior to the abandonment, was considered ás the" hot of the plaintiffand ren dered his abandonment invalid.”</p> <p>The judge declared his opinion-,</p> <p>*“ T^at the"mere- inability of the plaintiff to re-coppei the vessel at New Orleans, if she were not in fact- injured to half her value, and could be otherwise rendered seaworthy, was not, of itself,- sufficient ground of abandonment. But that the plaintiff was clearly entitled to have his ship repaired, and,- of course,, re-coppered at the ‘ expense of the defendants. And if the jury should be of opinion,-, that the expense of re-coppering the vessel at Havre",- dr New York, in addition to such repairs in New Orleans as would1 have rendered the vessel competent to perform the voyage in-pared, Would have exceeded a- moiety of her value making, the deduction of one third new for old, and charging, the-plaintiff with the old materials pot used, the abandonment was valid ;• and the- plaintiff entitled to their verdict for a total loss.”</p> <p>To this opinion the- counsel for the defendants excepted.</p> <p>The judge charged-,</p> <p>u That- the right of the plaintiff to recover for a- total loss, depended solely on the question whether the vessel was deteriorated half her valueand that they were bound to- consider her as so injured, if they believed,- from the evidence, that the expense of re-coppering her at Havre or New York, in addition to such partial repairs at Hew Orleans as- would have rendered- her seaworthy, and making the usual deductions and charges, would have exceeded á moiety of the sum at which- she- was valued in the" policy. That he had made a statement, which he would submit to them, according to his view of the evidence; and which was founded partly on A.- Seguin’s answer to- the ninth direct interrogatory, who was a witness on the part of the defendants; which statement he believed to be correct; and- which, if correct,- clearly entitled the plaintiff to recover for a total loss. That such were his views of the evidence : and if -they agreed with him. in- opinion, the plaintiff would be entitled to a verdict-. But this was a question of fact, which it was their province to decide. This statement was as follows:</p> <p>*Seguin’s statement of the expense of repairs at New</p> <p>AA dj.ror.A Orleans* $o,auv</p> <p>Difference of expense between sheathing with one</p> <p>inch and one and a quarter inch plank, 1500</p> <p>$6,700</p> <p>Deduct old copper, 800</p> <p>5,900</p> <p>Commissions, * 177</p> <p>Coppering in New York, 2,500</p> <p>$8,577</p> <p>Deduct l-3d, 2,859</p> <p>$5,817</p> <p>Verdict for the plaintiff, for $8,481 21, the sum claimed.</p> <p>The second suit was upon the policy on freight, valued at $6000, for the same voyage. In this suit, the verdict was for the plaintiff, by agreement, subject to the opinion óf the court. The principal facts were the same as above, in the suit on the vessel policy; the plaintiff abandoning both for vessel and freight at the same time. It was, moreover, agreed, that the following facts should be inserted in the case, as having been found by the jury: 1. That the vessel could not have been repaired at New Orleans, by re-coppering her: 2. That if the copper could have been procured there at its usual price, the expense of full repairs would have exceeded the moiety, making the usual deduction: 8. That the vessel might have been repaired there, sheathing her with wood, so as to render her seaworthy and competent to the voyage, at less than a moiety. 4. That the expense of re-coppering at Havre or New York, added to repairs and sheathing with wood at New Orleans, would have exceeded a moiety of the valuation at New Orleans.</p> <p>^ was a^S0 ai^m^ed, that under an adjustment of genera* averaSe at ^ew Orleans, the plaintiff was bound to pay $237 47; and that he was entitled to recover to that amount; the supreme court to reduce he verdict to what they should think the plaintiff’s rights to be.</p> <p>* Ver diet for the plaintiff for $6,694 42.</p> <p>Motion, by the defendants, for a new trial in the first cause; and by the plaintiff for judgment in the second.</p> <p>It was agreed that the plaintiff’s counsel should open-the argument.</p> <p>1. That the partial repairs at New Orleans, with full repairs' elsewhere, exceeded a moiety of the valuation.</p> <p>2. If the repairs, wherever made, would exceed a moiety, the assured had a right to abandon.</p> <p>3. The right to abandon was not defeated by the sale.</p> <p>4. The assured had a right to abandon on the mere ground that the vessel could not be re-coppered at New Orleans.</p> <p>5. He had this right, if, from appearances, and the opinion of the best judges that could be selected, the vessel was irreparable, except at an expense exceeding her value when repaired.</p> <p>6. The value of the vessel at New Orleans, not that in the policy, should be taken to determine whether the deterioration exceeded the moiety.</p> <p>As to the 1st point, he said it was a question of fact.</p> <p>As to the 2d point, the vessel must be put in statu quo. The question is, what will it cost to make her so ? (4 Cowen, 245, per Savage, Ch. J.) Sheathing with wood will not do. She was sheathed with copper. Loss of voyage is not the question. If deteriorated inore than 1-2, the assured may abandon, though the vessel may have reached her port of destination. (4 Bin. 386; 3 Serg. and Rawle, 25.)'</p> <p>■ As'to the 3d point, the sale was 4 days previous to the abandonment. It was made without the plaintiff's knowledge. The captain had a right to sell. (11 John. 295; 3 Moore, 115; 8 Taunt. 755; 4 Serg. & Lowb. 272; Phil. on Ins. 401, 412.) But whether this be so or not, an abandonment relates back to the time of the disaster; and if this justified the abandonment, no subsequent acts of agents could defeat the right. (9 John. 26; id. 8.)</p> <p>'"As to the 5th point, he cited Phil. on Ins. 400; 11 John. 295; 8 Taunt. 755: and as to the 6th, Phil. on Ins. 401, 402; 11 John. 295; 4 Cowen, 246.</p> <p>As to the freight policy; in addition to the above points, he said, the technical loss of the vessel, constituted, per se, a total loss of freight, inasmuch as no vessel could be obtained to transport the cargo at less than 1-2 the freight valued in the policy.</p> <p>The general rule is, that a total loss of the vessel, actual or technical, includes the total loss of freight. (Phil. on Ins. 424; 3 John. Cas. 99; 18 John. Rep. 210; 15 Mass. Rep. 346.)</p> <p>Again: By the abandonment, the property in the vessel passed to the underwriters. (1 John. Cas. 377; 2 id. 443; 3 Cain. 16 ; Phil. on Ins. 478, 479.) This did not defeat the freight policy. (3 John. Rep. 55.) Then the plaintiff had no further control over it. If he had used the vessel, he would have been a trespasser.</p> <p>If the plaintiff had repaired of wood, the shippers would have refused to re-ship. They had a right to a coppered vessel, for which they had contracted; and actually refused to re-ship without it.</p> <p>There was no obligation to Hranship the cargo at an expense of more than 1-2 the freight. The case which will be relied on, (Bradhurst v. Col. Ins. Co., 9 John. 17,) does not require it in such a case as this. There the expense would have been trivial. The court did not mean that the assured should tranship at any expense. This.can only be required where the expense will be less than 1-2 the freight. If not, he may abandon. The principle in Robinson v. Mar. Ins. Co., (2 John. 326, 7,) applies to the three subjects of insurance. Kent, O. J., takes it for granted that a loss of 1-2 of the freight warrants an abandonment. (18 John. 210, 211, 212, per Platt, J. S. P.)</p> <p>contended for a new trial in the- suit on the vessel policy; and for a judgment m favor of the defendants in the freight cause; or that the ver(3ict in the last cause should be reduced to such *portion of the general average incurred at New Orleans as- was properly chargeable on the freight.</p> <p>They said, if the abandonment of the vessel fails, that of the freight fails by necessary consequence.</p> <p>They made these points on the vessel policy:</p> <p>1. The plaintiff had no right to abandon; for, first, the vessel was not deteriorated to-more than 1-2 her value; and secondly, the repairs, necessary for the voyage were less than a moiety, making the usual deduction.</p> <p>2. The judge misdirected the jury both as to the law and evidence.</p> <p>3. The verdict was against evidence.</p> <p>1. They admitted that the assured may abandon, as for a total loss, -where the vessel has been injured by the perils-of the sea beyond a moiety of her value, or so as to require repairs to that extent. They traced the history and origin of this rule through Phil. on Ins. 401, and 1 Wheat. 228; contending that no such rule as to the vessel is established in the English courts; (2 Burr. 683; id. 1198; 2 Taunt. 363;) and that the rule is not to be favored or extended. It has generally been put on innavigability. (1 Emerigon, ch. 12, s. 38; 2 Condy’s Marshall, 562, 563, 571; Code de Com. Liv. 2 Tit. 16, s. 3, art. 369, 389; 2 M. & S. 240, per Ld. Ellenborough, 4 Bin. 507, Binney arguendo ; 2 B. & A. 513; 14 East, 466.)</p> <p>The right, as sanctioned by our own cases, frequently tempts to a fraudulent abandonment of the voyage, in the hope of greater gain by this than its honest pursuit..</p> <p>The actual damage to the vessel, instead of the expense of repairs, is the test. (4 Bin. 398.) The vessel should be so damaged as to be considered a wreck. (6 Mass. Rep. 482, per Parsons, C. J.) We must look to the actual state and condition of the vessel; not what her repairs will cost These may be accidental; and were so here, depending oi the expense at the nort of necessity. The market price of a vessel may be very low, where the materials for repair are very high. We do not find any case which settles that the amount of deterioration must be decided by a comparison of the sound with the damaged part. But we think *this mode recommends itself for its exactness, and is supported by reason and analogy.</p> <p>On this principle, it cannot be pretended that the deterioration was anything like a moiety. (The counsel examined the evidence upon this view.)</p> <p>But suppose the rule to be as stated by the plaintiff’s counsel. By what standard is the value of the vessel to be ascertained; and what is intended by repairs ? Are they such as shall place the vessel in all respects in her former condition and value ? or such as shall restore her to a capacity of performing with safety the voyage insured, or, in other words, render her seaworthy ?</p> <p>We need not discuss the rule which is to fix the value of the vessel. It was agreed upon at the valuation in the policy. That this was the correct valuation, we merely refer to 11 John. 293, Emmet arguendo; Phil. on Ins. 402: and 2 Caines’ Cas. in Err. 153.</p> <p>The repairs are merely those which will render the vessel seaworthy; not those which will restore her to the original value. By the contrary rule, a very trifling loss might sometimes authorize an abandonment; as from the want of funds, materials, or other causes. The loss of a mast, rudder or cable, might render a vessel for a time unseaworthy, and drive her to a port of necessity for repairs; and if the loss cannot be repaired by materials precisely similar and of equal value, the assured may abandon, though the vessel may be rendered equally seaworthy without this. The claim rests rather on the impossibility, than the expense of procuring The vessel could not be re-coppered at New Orleans; but she might have been rendered seaworthy, at less than 1-2 her value. This is the first time, we believe, that a right to abandon has been set up on a supposed value of repairs which could not be rendered. A vessel is never released from the obligation of pursuing her voyage, if she can be rendered seaworthy at an expense of Jess than half her value. If this has not been adjudged,- it vo). is clearly implied from the cases. The insurance is not on J the voyage; but the ability of the vessel. (4 Cranch. 370.) That repairs to render *her seaworthy are enough, the following cases will imply: Gould v. Shaw, (1 John. Cas. 293, per Radcliff, J.) Abbot v. Broome, (1 Caines, 292, 302, per Radcliff, J.;) Neilson v. The Col. Ins. Co., (3 Caines, 108; 1 John. Rep. 301, 305, S. C.;) Wood v. The Lincoln & Kennebeck Ins. Co., (6 Mass. Rep. 482, per Parsons, C. J.)</p> <p>. The sole and universal ground of abandonment of a vessel, is her incapacity to pursue her voyage. (4 Cowen, 243.) It follows that necessary repairs alone are to be considered. Suppose the copper alone had been stripped off, and no other injury. The ship might have pursued-her voyage. Might she abandon because she happened to be in port where she could not be re-coppered at less than half her. value ? The assurer is indeed to pay for re-coppering; but not at the port of necessity. It comes in by way-of claim for partial loss. (4 Cowen, 234.) It is for the interest of the shipping merchant that the vessel should be repaired, and proceed with the least possible delay. The rule would be most pernicious which should authorize the owner to break up the voyage at an intermediate port, when the ship may be repaired at a moderate expense. (Abbot on Ship., Am. ed. 254, 275.)</p> <p>[The counsel examined the evidence, contending that the vessel might be made seaworthy; without an expense exceeding 1-2 her value.]</p> <p>But if the judge was right as to the law, he misdirected the jury as to the fact'; and their finding was against the weight of evidence.</p> <p>The addition of the expense of re-coppering at New York or Havre, we think our opponents will agree, is a mode of computation novel in our jurisprudence. Ho place other than that of the disaster was, we believe, ever before adopted.</p> <p>.If the rule of law, however, laid down by the judge, was correct, we admit his mode of computation seems highly reasonable; and is probably the true one. But is not the novelty of the mode of computation, proof of the novelty of the rule on which it is founded ?</p> <p>*The question, upon the evidence, was not left open to the jury. The judge furnished a statement, with hardly an intimation that it could be questioned.</p> <p>[The counsel went into the proofs, to show that the finding of the jury was against the weight of evidence.]</p> <p>4. There was no right to abandon on the mere ground that the vessel could not be re-coppered at Mew Orleans, if the vessel was made competent to perform the voyage, the owners of the cargo could not refuse to re-ship. If the shippers were discharged by this circumstance, it would have been the same had the vessel been within a day’s sail of the termination of the voyage. The owner of the vessel is entitled to the possession of the goods, so long as his vessel is engaged in the prosecution of the voyage; and if driven into a port of necessity to refit, he may retain the cargo till she is repaired. The merchant cannot demand his goods unless the vessel is irreparable, or another cannot be procured. If their policy on the goods required a coppered vessel, they should have effected another policy on a vessel without copper.</p> <p>5. The vessel could not be abandoned on the opinion of surveyors and others at Mew Orleans. We concede that existing probability of a total loss, is a valid cause of abandonment ; and that it is not defeated, though from subsequent and unforeseen events, it should turn out to be partial. But opinion or belief is not enough. It must be justified by facts. (Dickey v. N. Y. Ins. Co., 4 Cowen, 222.)</p> <p>6. The right to abandon was divested by the sale. This is a doubtful point; but we do not mean to abandon it. We cite Moore, 140; Phil. on Ins. 409, 410, 411; 4 Campb. 138; 6 Taunt. 68; 6 Mass. Rep. 478; Condy’s Marsh, 562, a. (n); 5 Serg. & Rawle, 508; 14 East, 465.</p> <p>The master may defeat an abandonment by repairing. (Dickey v. The N. Y. Ins. Co., 4 Cowen, 222.) Why not equally by a sale ? A sale by the master has certainly been '30ns^6re(^ as .affecting the question of total loss. (3 Brod. & Bing. 147; Phil, on Ins. 111.) It is .not pretended that -the-sale created the total loss. This was not assigned as .cause .of abandonment. Nor could .it be made a ground. (Phil. on Ins. 408, 409.)</p> <p>*As to the suit on the freight policy. If the court should be against a total loss of the ship, the verdict -must be reduced .to the small general average, which we consent the plaintiff is.to recover.</p> <p>The'total loss of the freight did not follow that of the vessel; because it might have been repaired, and earned freight; or another -vessel might have been procured to -carry on the cargo. Loss of freight does not necessarily follow even.an actual total loss of the vessel. The assured can never recover for freight which it is his duty to proceed and earn. If not earned, it is his own folly. (3 John. Cas. 97.) The authorities cited on the other side, merely show that .there cannot be a total loss of freight without a total loss pf the vessel. But the converse is not true. If the shipper had required this vessel -to be repaired and made seaworthy, and carry on the goods, the-master must have obeyed. The owner’s right to abandon the vessel .could -not affect this claim. He of course had a right to repair-and earn freight, though the shipper had objected. By abandoning, he lost the freight. The contract with the freighter can only be dissolved where the repairing is impossible, short of the value-of the ship.</p> <p>It -is admitted that, generally, the .master must-procure another vessel: but not when,.as here, he must .pay full, or nearly full freight. We were struck with the force of this reasoning, -though .it has not been sanctioned by any adjudged case. It might be conclusive, if the vessel had been, .in fact, irreparable. But it might have been .repaired. On the general, question .as to the freight, we cite 6 Taunt. 68; 1 John. 205; 9 id. 19; 3 id. 97; 2 Cond. Marsh. 586.</p> <p>The voyage was properly broken ;up. It is laid down generally, by the books, that the master may retain, and the shipper cannot demand his goods, unless the vessel is irreparable,' or another cannot be procured. (Com. Code of France, art. 296; Ord. de Mar. Liv. 3, tit. 3, art. 11.) But this is, as to refitting, where the vessel can be repaired quickly. (1 Valin, 651, 653; Laws of Oleron, art. 4, 1 Peter’s Adm. *Dec. App. IX; Laws of Wisbury, 1 Peter’s Adm. Dec. App. LXXIII; 3 John. Cas. 93, per Radcliffe, J.; 2 Burr. 887.) This doctrine is not impaired by anything in Griswold v. N. Y. Ins. Co., (1 John. 205; 3 John. 321, S. C.)</p> <p>We think this is a case in which the shipper had an elec-" tion to receive his cargo, or require the ship-owner to proceed and-earn freight. He did elect to withdraw the goods; and it could not, therefore, be the ship-owner’s duty to proceed. True, the shipper cannot be compelled to receive his goods, where it is possible and legal for the ship-owner to proceed. But the former may elect to receive them short of this. A master cannot insist on retaining the cargo a long time, till he has completed his repairs. It may be perishable.</p> <p>Suppose that in this case the master might elect to refit in a reasonable time, or hire another ship. The latter would, in itself, have been a total loss. It must have been. on full freight; and would have been the same thing to the underwriters as an abandonment. The vessel was not, and, probably, could not have been made seaworthy till May following the disaster. Was this a reasonable time to wait for re-shipment? The shippers exercised a prudent discretion in withdrawing the cargo.</p> <p>The owner is certainly not bound to wait till the expenses are ascertained before he abandons. This ascertainment can be only after the repairs are made; and then it is too late to abandon. Probability must be the guide. The ship had returned, and the report of the surveyors was strong, that the vessel was not worth tire expense of repairs; the shippers had withdrawn the cargo; and left nothing to contribute to the expense of the voyage, or make it an object to repair. The surveys have weight. (3 Caines, 111, per Livingston, J.) The master should not repair in the face of surveys. He may be far abroad; and is the , n .1 n of those concerned. ^</p> <p>The sale of the vessel was never supposed to take away the right to abandon. (11 John. 293; 9 id. 1.) The acts of the master cannot generally affect that righv Repairing is an exception, it is true'; (4 Cowen, 422;) because the ground of abandonment ceases before it is made. Hot so -*of a sale. The question as to this is only between vendor and vendee; not between assurer and assured. (8 Taunt. 755, per Dallas, C. J.; Read v. Bonham, 3 Brod. & Bing, 147; 1 John. 355, charge of Livingston, J.) -It is enough, however, by these authorities, that the master acts in good faith. In this view, the sale (being valid) was itself an additional cause of abandonment.</p> <p>Under the French law, our surveys alone would warrant an abandonment. (1 Valin, 651. 1 Emerigon, 576, 577, 579, 580.) With us they have no official force.; but are' considered as properly influencing the conduct of the master. Fairly made and pursued, they are evidence of his good faith. (Whart. Dig. 336, art. 175. 11 John. 293, charge of Kent, C. J., in which the court concurred. 8 Taunt. 755. 2 Stark. 571. Read v. Bonham, 3 Brod. & Bing. 147. Cambridge v. Anderson, 2 Barnw. & Cressw. 691. Robertson v. Clark, 1 Bing, 445.) These cases show not only the force of a survey; but that the master is to be governed by probabilities in his conduct, and the owners in abandoning. Some of them speak of necessity; but this means expediency. (5 Esp. Rep. 65.)</p> <p>The underwriter cannot prevent an abandonment by showing that less than 1-2 the value of the vessel would make her seaworthy. The plaintiff is entitled to have her placed in • statu quo. (3 Caines, 89, per Livingston, J.) This the assurers must do even as a partial loss. It is implied in the term repair; which is “ to amend an injury by an equivalent.” (John. Dict.) The estimate of the vessel’s valúe to be made in reference to the port of necessity. (2 Caines, 85.)</p> <p>The vessel could not be repaired at New Orleans. Hg copper could be obtained. The incapacity to repair, either nr want of funds or necessary materials, has always been íeld cause of abandonment. The plaintiff had a right to ibandon the voyage'; and demand repairs on the spot from he underwriters. If this cannot be done, he may abanIon. If wood alone may be employed in case of necessity, he money value of the copper must be added to make up he loss. This would still entitle to the abandonment.</p> <p>*The finding of the jury (and it is fully supported by ¡vidence) is, that if the value of the coppering at any place >e added to the other repairs, they will exceed a moiety of he value.</p> <p>If the ship be not rendered unseaworthy by the injury, íer delay would be a deviation; as in the case supposed >n the other side, of mere loss of copper, without other njury.</p> <p>All antecedent defects not making the vessel unseavorthy, are to be disregarded. (2 Caines, 85; 5 Cowen, 63.)</p> <p>In England, the rule that a loss of more than 1-2 of the hing, (2 Burr. 1209,) or the ship, (Goss v. Withers, W. Bl. 279, 322; 2 Burr. 696, 697,) amounts to a total loss, contructively, in a case of salvage of a ship on re-capture. 1 loss by any other peril is the same in principle. Traces if the same rule in regard to losses by other perils may be bund in the English books. (1 T. R. 187, per Willes, J., dewed in the same way by Tilgman, C. J., 3 Serg. & Rawle, 25, and by this court in 3 John. Cas. 34. And see Read v. Bonham, 3 Brod. & Bing. 147.) As to the Erench rule on his head, see 2 Valin, 101.</p> <p>The rule is generally so expressed as to refer to the value f the vessel, and amount of repairs at the port of necessity. Phil. on Ins. 389, 390. 6 Mass. Rep. 682. 1 Con. Rep. N. S. 235. 2 Caines, 85. 4 Cowen, 242, 245.) It is only n that ground that the deduction of 1-3 new for old is roper. The object is, to ascertain whether the voyage be rorth pursuing. If the property be merchandize, for sale, ;s market price in an injured state, is compared with its rice in an uninjured state. If the damage be to the vehile of transportation, the question whether the voyage be worth pursuing, depends on the expense of repairs, eompared with the value when repaired. The values should same piaGe. Ho question has ever been made- upon this before; and there is nothing about it unsettled, except whether the value m the policy shall be taken for that of the ship.</p> <p>The value of the ship- at the port of necessity, not the value in- the policy, should be taken. The latter is nevei ^intended to conclude on the question now raised. It it lawful to recover by it much more than- the value of the vessel; as the value of provisions and outfits. (4 T. R. 206.) The value at the port of necessity has usually beer adopted. (11 John. 298.)</p>

<p> Soutya®dmiy </p> <p>Astatute, (2 267,declared act Authorized the corporation of the city of New York to make various by-laws, when they should deem them necessary and proper; “and for regulating, or if they find it necessary, preventing the interment of the dead,” within the city. The corporation passed a by-law prohibiting the interment of dead within certain parts of the city, under a penalty; notwithstanding which certain persons interred dead bodies in the part of the city to which the by-law related; the interment was by persons having a right under grants of, or titles to land holden _ in trust for the sole purpose of interment, some of which had been used for that purpose for ' more than a century, and to some of which certain fees for interment were incident, and belonged to the persons interring. A further right was also claimed by individual vault twners, in whose behalf some of the interments were made.</p> <p>Held, that the by-law was valid and operative as to all these interments.</p> <p>The act under which it passed is not unconstitutional, either as impairing the obligation of contracts, or taking private property for public use, without compensation; but stands on the ground of being an authority to make police regulations in respect to nuisances.</p> <p>Held, that the by-law need not recite or adjudge, on its face, that it was necessary; but such necessity was implied by the act of passing it.</p> <p>Held, also, that a declaration for the penalty of the by-law need not aver that such by-law was necessary.</p> <p>Necessity, as intended by the statute, is nearly synonymous with expediency, or what is necessary for the public good.</p> <p>Held, that the length of time, 100 years, during which part of the premises in question had been used for interring the dead, was not conclusive against the power of the legislature, or the corporation, to pass the laws.</p> <p>Held, also, that though premises be granted for a certain purpose, and long used for that •purpose, this will not prevent the use afterwards being treated as a public nuisance.</p> <p>Though a corporation grant lands for the purpose of interment, and even covenant that they shall be quietly enjoyed for that purpose, they are not thereby estopped afterwards to pass a by-law, forbidding such interment, under a penalty.</p> <p>Such a by-law repeals the covenant.</p> <p>Sesnb. the powers of the corporation of the city of New York, depends on statute which has superseded their original charter, especially as to those things in relation to which the statute makes provisions, either agreeing with or differing from the charter.</p> <p>Form of declaring for the penalty of a corporate by-law. What such declaration should contain. Per cw. at the close of their opinion.</p>

<p> North HHnity Chwrch Yard. </p>

<p> gf¡ Pmys ^tiwch, Yard, </p>

In this the pleas were substantially the same as in the 3d cause. Judgment for the plaintiffs below, on general demurrer to all the above pleas, and joinder. Held: it is true, that the covenant of the corporation might be annulled by their own law. But the question did not arise as to. the effect of such a covenant upon the penalty imposed by their law, contrary to the terms of the covenant.

<p>On certiorari from a justice’s court. Dart sued Pierce, court below, for a nuisance, in building a fence across a public highway, near the residence of the plaintiff below; in consequence of which he complained that he had received special damage, r 0</p> <p>Several questions were now raised by the counsel for the plaintiff in error, which it is not deemed important to no^ee_ q^e majn questions were, whether the special damage x 1 x 0 received by the plaintiff below, was of that nature and ex-which would warrant an action by him, or whether the remedy lay in a public prosecution only; and whether, if the plaintiff below could otherwise have sustained an acfcion, it was not barred by his having abated the nuisance. The facts, as to these two heads, will be found sufficiently stated in the opinion of the court.</p>

<p>Case for an alleged libel published by the defendants, °f an(^ concerning the plaintiff, on the 25th of August, *1824, in a newspaper called the “ New-York American,” of which the defendants were the editors. The declaration contained two' counts on the libel in question, which was as follows:</p> <p>“ Lieutenant Governor Boot—It has been denied, we understand, by the Argus,” &c., “ in answer to some strictures on the subject in an Albany paper, that on the afternoon of his famous decision of order, -Mr. Root was intoxicated ; and the charge is treated as calumnious,” &c.</p> <p>“ The facts are shortly these: We speak only what we saw; and as it is a matter of some public concern, that the presiding officer of our senate should not continue to be what Mr. Root is, we speak without hesitation or reserve.</p> <p>“ The house of assembly having sent to the senate the resolution declaring the expediency of passing, at the then session, an electoral law, it was anticipated that some interesting proceedings would, in consequence, be had in that body. Accordingly, when it met at five o’clock in the afternoon, to which hour it had in the forenoon, previously to the passage of the resolution in the assembly, adjourned, a great concourse of citizens, and of strangers, from all parts of our country, crowded its floor, lobbies and gallery. When the lieutenant governor, at the hour named, advanced through the centre of the apartment towards his chair, there was in his appearance, manner, and walk, something that excited every one’s observation. He reached his station, however, and calling the members to order, informed them that there was a message from the assembly, which the clerk then read. A dead silence ensued. Lieutenant governor Root, holding on to each arm of his chair, looked round with inflamed face, with blood-shot eyes, and half open mouth, and with an expression altogether so stolid and drunken, as in any other situation, and under other circumstances, could not have failed to excite the derision of all present.</p> <p>“ He was evidently expecting some motion previously concerted, probably in order to enable him to pour forth the diatribe with which he was laboring; but none such *was made, and he, therefore, was compelled to remark, 1 the chair has no observations to offer, unless some motion be proposed.’ Thereupon, it-was moved by Mr. Burt, we believe, at any rate by some one opposed to the faction, ‘ that the senate concur in the resolution sent from the assembly.”</p> <p>“ This furnished the spark to the combustibles smouldering in the breast of the lieutenant governor; instantly he essayed to rise, and by the all-important aid of the arms of Ms chair and his desk in front, he did rise, and stood for a moment, as if in preparation, silent before several hundreds of his fellow citizens, an object, from his appearance and manner, we will venture to say, of loathing and disgust to every unprejudiced man among them; unwashed, unshaven, haggard, the tobacco juice trickling from the corners of his mouth to be wiped away with his coat sleeve; with Unsteady footing, this second officer of the great state of Hew-York, commenced his address to the senate. It is known that the presiding officer of this body has no other than a casting vote, and no right at all to speak. He may, however, assign reasons for any decision he makes, and_ under this shallow pretext, Mr. Boot uttered a long and labored vindication, not only of the course he was about to take in declaring the motion for concurrence out of order, but of the whole course of proceedings of the senate; and then launched forth into a regular philipic against the governor and assembly, whom he charged with vying with each other in the race of popularity. It was the harangue of an intemperate demagogue, blind with passion and rum. As such it was heard by all impartial men: and our only astonishment was, that the respectable members of the senate could sit still, and permit their presiding.officer thus to disgrace himself and them. He should have been called to order, and compelled to sit down. He was doing what he had no more right to do than any grovelling sot from the public kennel. He Was Out of order in presuming to address the senate at all; but to address them in his then state, and in the terms he did, was outraging all order, decency and forbearance.”</p> <p>*Plea, the general issue, with notice that the defendants would give in evidence, on the trial, the truth of the matter contained in the libel, in justification, with other matters,' which will be found stated in the opinion of the court.</p> <p>The cause was tried at the Delaware circuit, on the 13th of June, 1826, before Betts, (late) C. Judge. The publication of the alleged libel was admitted by the defendants to have been made by them, and to have been written by the defendant King.</p> <p>The testimony of witnesses was then heard on both sides ; and various points of law decided by the judge, and given in charge by him to the jury; which testimony and points, with the judge’s decisions and charge, so far as they are deemed material, will be found stated in the opinion of the court.</p> <p>The jury found for the plaintiff, with 1400 dollars damages.</p> <p>A motion was made, in behalf of the defendants, for a new trial, which was argued at the last August term, by</p> <p>The points discussed being also arranged and very fully examined by the court, it is not deemed necessary to do more in this place, than give the books cited and commented upon by the counsel.</p> <p>References on the argument in support of the motion. As to granting a new trial for excessiveness of damages; Blunt v. Little, 3 Mass. Rep. 102, 106, Cor. Story, J. As to proof of the journals; 1 Phil. Ev. 321; Stoever v. Whitman, 6 Bin. 416. As to proof of the plaintiff’s standing and character, and of reports concerning him; Larned v. Buffington, 3 Mass. Rep. 546; Paddock v. Salisbury, 2 Cowen, 811; Matson v. Buck, 5 Cowen, 499; — v. Moor, 1 M. & S. 284; Calloway v. Middleton, 2 Marsh. *Ken. Rep. 372; Eastland v. Caldwell, 2 Bibb’s Ken. Rep. 21, 24; Cook v. Barkley, 1 Pennington’s N. J. Rep. 169; Lane v. Howman, 1 Price, 76; Treat v. Browning, 4 Con. Rep. N. S. 408. That it was a defence, to show the libel published in good faith, from good motives and for justifiable ends, though it was not strictly true; Weatherston v. Hawkins, 1 T. R. 110; Rogers v. Clifton, 3 B. & P. 587; Barbaud v. Hookham, 5 Esp. Rep. 109; Johnson v. Evans, 3 Esp. Rep. 32; Pitt v. Donovan, 1 M. & S. 639; Gray v. Pentland, 4 Serg. & Rawle, 420; Remington v. Congdon, 2 Pick. 310; Bunton v. Worley, 4 Bibb’s Ken. Rep. 38; Jarvis v. Hatheway, 3 John. 186; Fairman v. Ives, 5 B. & A. 642; Thorn v. Blanchard, 5 John. 508; Harris v. Huntingdon, .2 Tyler’s Vt. Rep. 129. Authorities opposed to the last position; 5 Bac. works, 110; Rex v. Woodfall, 5 Burr. 2661.</p> <p>Eeferences by the counsel for the plaintiff. Starkie on Slander, Am. ed. 327, 8, 9, 342, 45, 405, 409, 410; Matson v. Buck, 5 Cowen, 499; Alderman v. French, 1 Pick. 1; Paddock v. Salisbury, 2 Cowen, 811; Earl of Leicester v. Walter, 2 Campb. 251; Winchell v. Latham, 6 Cowen, 682; Kennedy v. Gregory, 1 Bin. 87, per Yeates, J.; Jarvis v. Hatheway, 3 John. 180; Hurtin v. Hopkins, 9 John. 36; Duncan v. Dubois, 8 John. Cas. 125; Coleman v. Southwick, 9 John. 45; Southwick v. Stevens, 10 John. 442.</p>

Ejectment; tried at the Chenango circuit, July, 1826, before Helson, C, Judge; when the jury found a verdict for the defendant.

ASSUMPSli~ on a valued policy of insurance against fire, on merchandize of the plaintiffs, as D. 0. Norton & Oo., tried at the Rensselaer circuit, November 16th, 1826, before DUER, 0.

Motion, in behalf of the defendants, to set aside a report of referees. On the hearing, the plaintiff proved that in 1816, he printed for the defendants to the amount of ^ ’ 1 $1179 09. The defendants proved that the plaintiff had been charged under the act to abolish imprisonment for debt in certain cases, on the 18th of August, 1821, when he made an assignment of his estate for the benefit of his creditors. ° ....

Motion in arrest of judgment, founded on the insufficiency of the 5th count in the declaration. This was in slander.

Ejectment for 50 acres of land in Phillipstown, Putnam, county; for 5 acres of which, Hannah Poor was let in to defend with Budd as her tenant. The case was as follows: Samuel W. Bard was the owner of the premises in question, when the judgments hereinafter mentioned were obtained. The lessors of the plaintiff have an undisputed right to all the premises in question, under a mortgage given by Bard to Haight, one of the lessors, except the five acres.

Assumpsit ; tried at the New York circuit, March 22d, 1825, before Betts, (late) 0. Judge, who signed a bill of exceptions, on which a motion was now made in behalf of the defendant for a new trial.

<p>Trover, for 50 hogsheads of tobacco. A verdict was *a‘*cerL f°r the plaintiff, by consent, for $8000, subject to *the opinion of this, court upon the following case; with liberty to the court, to modify the verdict as to the amount, in such manner as they might see fit; or to order judgment of non-suit, or as on verdict for the defendant, if, in their opinion, the plaintiff should not be entitled to recover, and with leave to either party to turn the case into a special verdict or bill of exceptions:</p> <p>The plaintiff, Ingersoll, was commander of the brig William Henry; and it appeared in evidence that the defendant, on the 15th September, 1822, received from the plaintiff, the 50 hogsheads of tobacco, for which he gave the following receipt: ■ “ Eeceived, Brooklyn, Sept. 15th, 1822, per the brig Wm. Henry, Capt. Ingersoii, from New Orleans, on storage, for acct. and subject to the order of Capt. James B. Ingersoii, 50 hogsheads of tobacco.” On the 8th October, 1822, the plaintiff demanded the tobacco from the agent and store-keeper of the defendant, offering to pay the storage and other expenses. The store-keeper refused to deliver it, in the pursuance of orders received from the defendant; and the tobacco was retained.</p> <p>The plaintiff did not claim the tobacco as general owner; but in virtue of a special lien on it, for the freight, primage and other charges, upon a cargo of 200 hogsheads, (of which the 50 in question were a part,) brought by him in the brig Wm. Henry, from New Orleans to New York. The tobacco was consigned to, and owned by Francis Depau of the latter city. It was shipped by William Kenner & Co., of New Orleans. Upon the arrival of the brig at New York, in September, 1822,150 of the hogsheads were delivered to Depau; and the remaining 50 were held by the plaintiff for freight and other charges; and placed by him in the defendant’s store.</p> <p>One Eobert Q-. Shaw, of Boston, claimed to be the owner of the brig; and by his direction, the defendant delivered the 50 hogsheads to Depau, he having paid to Shaw or his agent, the whole amount of freight, primage, &c., on the 200 hogsheads, and received from Shaw a satisfactory bond of indemnity.</p> <p>*To establish the title of Shaw, the defendant produced and read in evidence a bill of sale of the brig, from Eobert Elwell, of Boston, (who was admitted to have been her original owner,) to James Andrews of the same place, dated the 4th of June, 1822; also a bill of sale from Andrews to Shaw, dated the 22d of July, 1822. The plaintiff was duly appointed commander of the brig by the agents of Elwell, on the 3d of June, 1822.</p> <p>The defendant also produced and read in evidence, a libel filed by Shaw, in the district court of the United States for the southern district of New York, on the 11th 7 ^ay November, 1822, against the brig, the plaintiff and others.- The libel- set forth the title of Shaw, as already gtate^ and it appeared by the proceedings, that the plaintiff, although duly summoned, suffered a decree to pass against him by default: but that a claim was interposed by George B. Barker, Benjamin Driggs and Wm. 0. Barker : that Wm. G. Barker was the surviving partner of the firm of Barker & Hopkins : and that they were the agents of Elwell on the 4th of June, 1822, when the brig was sold by him to Andrews. They had," at- one time, been empowered by Elwell to sell the brig; but the power had been revoked, and notice of the revocation duly given to them, prior to.the 7th of June, 1822. Notwithstanding such revocation, however, they, on that day, sold the brig to Driggs, who subsequently sold her to George B. Barker, who claimed and" retained her by virtue of such sale.</p> <p>The sentence or decree of the district court was made on the 13th of September, 1823; and adjudged the title of the brig to be in Shaw, and that Ingersoll, Driggs and George B. Barker kept and retained the possession, against the libellant, who was the true and lawful owner; and adjudged the possession of the brig, her- tackel, apparel and furniture, register and freight, to-the libellant.</p> <p>It appeared that after the unauthorized sale of the brig by Barker and Hopkins to Driggs, which took place in New York, she was sent to Perth Amboy; and' there cleared out for her voyage to New Orleans.. That previous to this *transfer, her true owners at Boston had advised John Clark, jun., of New Orleans, that the brig was coming to that place consigned to him. But after the transfer to Driggs, he (Driggs) changed- the consignment, and sent her to Wm. Kenner & Co., who procured her return cargo of tobacco.</p> <p>The plaintiff proved that he took command of the brig on the 3d day of June, 1822, in pursuance of an agreement with Barker and Hopkins, as agents of Elwelland that he was to have 40 dollars per month, and all primage not exceeding 5 per. cent. He further proved' by the testimony of John Oldham, (taken under a commission,) one of the firm of William Kenner & Go., that the disbursements for the brig at New Orleans, were between 1000 and 1100 dollars, all of which sum was paid out to different individuals by Kenner & Go., except about 120 dollars, which was paid by them to the plaintiff, and which the witness believed the captain fairly applied to the necessary expenses of the vessel. He further testified that the plaintiff had given his note to Kenner & Go., for the balance due on account of their disbursements, amounting to 1047 dollars and 30 cents, which was not yet paid; and which the company had agreed to wait for until the termination of this suit.</p> <p>This testimony was objected to, on the ground that the firm of Wm. Kenner & Co., of which the witness was a partner, were interested in the event of the suit. That it was, in fact, prosecuted for their benefit. The objection was overruled.</p> <p>It was proved that Kobert Gr. Shaw, who claimed and established his title to the vessel, was a merchant of wealth and respectability in Boston.</p> <p>The plaintiff has established a legal right to the goods, to the extent of freight and primage ; and his possession and legal rights can be defeated only by paramount claims or equities of the defendant, or those whom he represents. The defendant cannot set up the legal or equitable rights of Shaw as a defence. *The former is estopped by his contract. They were delivered on storage. This did not deprive the plaintiff of his possession. It was continued by his bailee, the defendant. Can there be a doubt, had the plaintiff received the freight, that in an action against him by Shaw for the money, the former might have set off the amount expended in repairs, wages or supplies, to enable him to earn the freight ? The plaintiff’s lien was perfect, and unimpaired. He never could have been compelled to deliver the goods, without the previous payment of freight and primage.</p> <p>The defendant’s evidence should not have been admitted.</p> <p>But if the evidence was admissible, the defendant’s situ* atlon was no better than Shaw s. The master has a lien on freight and goods, co-extensive with the debts which he contraetg ag master- (White v. Baring, 4 Esp. Rep. 22; Lane v. Penniman, 4 Mass. Rep. 91; and see 11 Mass. Rep. 72, 415; Milward v. Hallet, 2 Caines, 77; Hodgson v. Butts, 3 Cranch, 140; Abbott on Shipping, Story’s ed., 150, and notes.) Shaw, of course, took the vessel subject to all contracts made by the owner before the transfer. (Portland Bank v. Stubbs, 6 Mass. Rep. 422.) As to the primage, there can be no dispute. The master always receives this to his own use, unless restrained expressly by contract with his owners. (Abbott on Ship., Story’s ed. 307.) The decree of the court of admiralty could not affect his rights. That merely settled the question of ownership. It did not and could not interfere with any collateral matter.</p> <p>It cannot be disputed that the master may collect the freight for the benefit of the owner. But the consignee has already paid the freight to the owner. This he had a right to do. The owner had a right to receive it; and so far as the plaintiff’s action depends on his right to collect freight for the owner, it fails.</p> <p>It is conceded that, as against the owner himself, the master has the same right in the freight money, when collected, as a factor or consignee has in the goods of his ^principal or consignor, for advances or liabilities incurred; but no case has gone so far as to give the master a lien on goods in, opposition to the owner, in order to coerce him to the settlement of a contested account, especially where such owner is solvent. The adjudged cases, especially the later English cases, look the other way. (9 East. 426; 13 Ves. 594.) White v. Baring, was a case of insolvency. It is of questionable authority; for a rule was granted to show cause why a new trial should not be awarded for a mistake of the judge, and the suit was afterwards compromised. The doctrine of Lord Kenyon, in that case, was not sanctioned by the court; nor is it supported by authority. The note of Judge Story, which is cited, was built up entirely upon that case. Hodgson v. Butts, established the master’s right as a general creditor, to retain freight . , . , . . , .... ° , received, as against the original owner or his assignee; and Milward v. Hallet, that an owner receiving a cargo, is bound to pay a loan taken up by the captain, for the benefit of the voyage then pursuing. Lane v. Penniman, (4 Mass. Rep. 91,) and Lewis v. Winslow, (11 id. 72,) establish the captain’s lien on the freight when received by him. The cases do not go farther than to allow the master’s lien on the freight in his hands, to the extent of his claim against the owner upon advances made, and liabilities incurred for his benefit during the voyage ; or that, in case of an insolvent owner, the master may give notice, and require the consignee to pay his claim; and if, after this, he pays the owner, and the master establishes his demand, his payment is, pro tanto, in the consignees own wrong.</p> <p>The claim set up in this case, depends on the testimony of Oldham, who was interested, as one of the firm of Kenner & Co., the consignees of the illegal owners. They made the advances, not the master. They became creditors of their employers; (Milward v. Hallet, 2 Caines, 84;) but tqok the master’s note, and agreed to hold over till the termination of this suit. The note does not appear to have been negotiable; and was, therefore, not a payment. (8 John. 206; 15 John. 224.) The consignees *at ¡New Orleans gave credit to their employers. They had no lien; (Liebart v. Emperor, Bee’s Rep. 344;) and if the note was a payment, it was a voluntary one. The money was advanced for the benefit of the tort feasors; and the consignee must look to them alone. This plaintiff was a party to the admiralty proceedings, which expressly decreed the freight to the real owner; and estops the plaintiff from claiming it. (1 Phil. Ev. 295, 254; 3 Cowen, 120; 4 id. 559.) The same decree declared him a tort feasor as to the real owner; thus dissolving the supposed connection of master and owner, which is the basis of the plaintiff’s claim.</p>

<p>where a con Jpct18 |°a]idr® salt in barrels, are directed by :•!,) are t0 be ”r'derstood as in tended.</p> <p>But on tbe Xer^Vireis conformable to the contract have been tendered, there -need not he that^timy conformed t0 „tbe jury may infer this from the testimony.</p> <p>Where there the vendor, up-°o senTn^dochattels, the vendee to pay at the time, the measure of damages, in an action by the vendee, is the difference between the contract price and the value of the chattels when they should be delivered by the contract.</p> <p>But where the price or consideration is paid in advance, the vendee is not confined, in measuring his damages, to the value of the articles, at the time when they should have been delivered: but may, if he bring his suit in a reasonable time, recover according to the highest price at any time between the period for delivery and the day of trial; especially where the chattels are intended by the vendee for the purposes of trade. (E. g. an action on a note promising to deliver, acknowledging value received.)</p> <p>How 'it would be if the chattels were intended for the private use of the vendee ? Quere.</p> <p>If the suit be delayed by attempts to compromise, semi, the damages should be according to the value, when the suit is commenced.</p>

<p>The owners ^acted °P with anotber> th«t he should take and use the freightingbul’iness; out of pay the owners a eertam su™ till that' was «tie to'remain paid, to pT»“ Sendee took possestbT’ sioop"»^</p> <p>xívíwj xnat the vendors ^¡g6 able as ers for the negligence of the vendee, who sailed the sloop as master.</p> <p>Where an exclusive credit is given to the master, the owners are not liable.</p> <p>A mortgagee of a vessel out of possession, is not liable as owner, on the contracts or for . the negligence of the mortgagor, who uses the vessel as master.</p>

Assumpsit, tried at the Onondaga circuit, the 2d of Oct0ber, 1826, before Throop, O. Judge. Held: in Fowler v. Sharp, (15 John. 323,) that the words “fully administered,” in the plea oí plene administravit, are mere surplusage. That decision virtually settles this question; and the case is abundantly supported by the English authorities. (2 Sand. 221, note (3.) (2 Chit. Pl. 609.) Surplusage need not be proved. (3 Stark.

<p>A bill of ex-able Sa certain ¿™ber af°^ sight, in order drawer^hoíüd Presented within a rea-</p> <p>What is a blqUesoflaw ™- derthecircumstances of each JaI*10ul®r.t case; not a question of fact for a jury. The situation of the parties; as where they are when the bill is drawn, whether the payee is to be himself the bearer, the distance between the place of drawing the bill and the payee, the delay arising from the sickness of the payee, or other accident not arising from his misconduct, are all proper to be considered.</p> <p>But not the consideration upon which the bill arose; for this can have no influence on the question of diligence.</p> <p>A bill of exchange was drawn in the city of New York, December 12th, 1822, payable at 3 days sight, to be borne by the payee, who was then at New York, to Richmond in Virginia, where the payee resided, a distance of about 300 miles. The bill was presented for acceptance on the 10 th of January, 1823, (29 days after the date,) which was refused. Whether this was reasonable time, delay by ill health and other accident being out of the question 1 Quere.</p> <p>But the payee being out of health at New-York, on his journey, and after his arrival at his residence in Virginia, (which was the 1st of January;) held, that this excused the delay, if it would otherwise have been unreasonable.</p> <p>Promissory notes payable on demand, stand on the like footing as to the time of demanding, &c., to charge an indorser. Per Woodworth, J., and the cases cited by him.</p>

Case, for a malicious prosecution ; tried at the Yeates circuit, March, 1824, before Throop, 0. Judge.

Ejectment for the north half of lot Mo. 68, Verona, Oneida county ; tried at the circuit in that county, October 10th, 1826, before Williams, 0. Judge. It appeared that the lessors of the plaintiff were the heirs of E. Norris; and-that the defendant had contracted with him to purchase the premises in question of him; and was in possession under the contract.

Oh this cause being called at the last Oneida circuit, Williams, 0.

<p>in the deBcription of veyance, any je™fixed upon by the parties, controls the distance; pOTmanent object within the rule.</p> <p>Where the parties to a conveyance of land caused it to be run out and set off to the grantee by a surveyor, who ran a little beyond one of the objects specified in the description'; held, that after 20 years the grantor, and those claiming under him, were concluded by this location</p>

Motion in arrest of judgment, on the ground that several counts of the declaration, which contained 16 counts in the whole, for verbal slander, were defective in substance.

Trover for one half of the sloop Arcadia: tried at the ** ’ Jefferson circuit, August 28th, 1823, before Williams, 0 when the following facts appeared: On the 5th of August, 1820, J. Y. Bacon, being owner of 1-2 the sloop, as tenant in common with the bank of Utica, executed a bill of sale of his share, dated on that day, to Stutson.

ON error from the 0. P. of the city and county of New York. The action in the court below was trespass de bonis asportatis by Lafoy against Wintringham. It appeared on the trial, that Wintrin~ham was a constable, who held a /1. fa. issued by the marine court of the city, against the goods and chattels of one Gallis; and that, on *the 19th of January, 1826, he levied on the articles in question, consisting of jewelry in the store occupied by Galls, who was present at the levy.

' Assumpsit for money had and received; tried at the Washington circuit, June 16th, 1826, before Throop, C. Judge. The action was against the' defendant as late sheriff of county of Washington, to recover money which had been received by one Stevens, his deputy, on a sale under in favor of the plaintiff against Wm.'and Jas. Getty.

<p>Ejectment for lot Ho. 121, in the town of Almond, Allegany county; tried at the circuit in that county, tember 25th, 1826, before Birdsall, C. Judge; when a verdict was taken, for the, plaintiff, subject to the opinion of’ the court on a case, which presented two questions; one of which was, whether the defendant was entitled to notice to quit.</p> <p>The plaintiff having shown at the trial what the judge deemed prima facie evidence of title in the lessor of the ■plaintiff, the defendant proved that in 1818, he and one of •his sons, applied to the lessor of the plaintiff to obtain land for his, the defendant’s, three sons; stating that they were unable to pay anything for the land till they could earn it. It was agreed, by parol, that they might take possession of any land which suited, make improvements, and, when able, take a contract for the purchase at 5 dollars per acre. The land was to be divided into three parts, and each of the sons to take one. Possession was taken accordingly. The lessor frequently called for payments; but none were made. The possessors improved the land to the value of 700 or 800 dollars. The defendant and his sons finally refused to take contracts, except at 4 dollars the acre. The defendant resided in a house on a part of the land.</p> <p>cited Jackson v. Brian, (1 John. 322.)</p> <p>cited 1 John. 322; Adams on Eject. 114, 233; 10 John. 335; 4 Cowen, 349; 9 John. 330: 13 East, 210; Run. on Eject. 105, 114; 5 T. R. 471; Selw. N. P. 732, 733.</p>

<p>On error from the court of 0. P. of the county of Washington. The errors assigned were founded on exceptions ia-^en at ^e trial in the court below, on the 4th of March, 1824; and which came here on a bill of exceptions present-ingj in connection with the record, these facts: The action jn court below was trespass by West, against Hurd, for , . . „ , * - . , taking a number of sheep. The plaintiff *below proved on the trial, that on the 27th of March, 1822, he purchased 23 sheep of Gideon Dayton, and gave his note, which was immediately transferred by Dayton to Robert I. Law in part payment of a debt. At the time of purchase, the sheep were on a farm in Sandgate, which Law had bought of Daniel Dayton. The sheep were taken to the farm of the plaintiff below. John Stewart testified that none of them were more than two years old.</p> <p>In April, 1822, the plaintiff below sold 18 of the sheep to K. West. While they were engaged in driving the sheep towards the village of Salem, the defendant below met them; and claimed the sheep as his property. K. West thereupon gave up his bargain with the plaintiff below ; and it was then agreed between the plaintiff and defendant below, that the sheep should be taken back, and united with the other five which had been left on the farm; that the parties should call on Law; and that the defendant below should do something by which the plaintiff would not be the loser. The agreement between the plaintiff below and Dayton was, that the former should not pay for the sheep unless he could hold them. It also appeared that the plaintiff below forbade the defendant below taking the sheep. The defendant below, after proceeding part of the way to Law’s, refused to go on; but took 5 sheep out of the barn of the plaintiff below; and drove them away together with the other 18.</p> <p>The defendant below submitted to the court whether trespass would lie upon these facts ; and moved for a non-suit ; which being Overruled, he excepted.</p> <p>The defendant below proved by Thompson Hurd, that in the year 1819 or 1820, in the fall, the defendant below let to Daniel Dayton of Sandgate, a number of sheep for; one year, for a pound of wool a head; and was to have; the same sheep, or sheep of as good quality, returned in, case any died.</p> <p>Daniel Dayton left the country about the time the plaintiff below purchased; shortly before which, the defendant below started to go to his house and settle with *him and get the sheep kept. Gideon Dayton moved into Daniel Dayton’s house; but absconded about the' 1st of April* 1822. The defendant below went for the sheep to Gideon Dayton’s; found he had absconded, and hearing that the plaintiff below had purchased the sheep', he proceeded, ana overtook the plaintiff below with the 18, on his way to Salem.</p> <p>Shortly before Gideon Dayton made the sale, he informed S. Thomas that there were then on the farm in Sandgate, 23 sheep, which belonged to the defendant below: that they had formerly been let to Daniel Dayton ; and that the defendant below had left them there to be kept for a short time. That if he concluded to go away, he meant to sell the sheep.</p> <p>.Alanson Hurd testified, that in 1820, the defendant below let to Daniel Dayton, 23 sheep, for one year; and when that year was ended,- he let them for another year, for a pound of wool a head; and was to have the same number of sheep, and of as good quality returned.</p> <p>A few weeks before Gideon Dayton absconded, he came to the house of the defendant below, and wished him to come and settle with him (D.) for keeping the sheep.</p> <p>The court charged the jury, that unless they were satisfied, from the evidence, that the sheep sold by Gideon Dayton were the same identical sheep, which the defendant below formerly let to Daniel Dayton, the plaintiff below was entitled to recover. The defendant below excepted to the charge.</p> <p>Verdict for the plaintiff below.</p> <p>Trespass would not lie. West gave up the sheep to Hurd voluntarily. Even a refusal to deliver the sheep on demand, would not have entitled to the action. It would have been a bare non-feasance, for which trespass does not lie. (7 Com. Dig. Day’s ed. Trespass, (D;) 1 Ld. Raym. 188; 12 John. 348; 6 Cowen, 112.) There was no fraud in obtaining possession. West, in effect, admitted our right. *(3 Stark. Ev. 1444; 1 T. R. 480.) The sheep were given up under an agreement. If this was violated, the remedy should have been, by assumpsit.</p> <p>But the weight of testimony was decisive, that the property belonged to Hurd.</p> <p>The court misdirected the jury. The question was, whether the sheep were Hurd’s or West’s. The question of identity was one of evidence; not of right. If the sheep were Hurd’s, though not the same he first let to D. Dayton, he was entitled to hold them. The testimony showed that Hurd had taken the sheep back, or other sheep in lieu of them; and left them with G-. Dayton a short time to be kept. The jury might well have believed the sheep to be Hurd’s, though not the identical sheep let to Dayton.</p> <p>Trespass no doubt was the proper action. It is always so, where possession is delivered for one purpose; but abused to another. The right of possession in the plaintiff is sufficient.</p> <p>The question of identity has been passed on by the jury, under a charge fairly submitting the question. The weight of evidence is not to be examined here; but if examined, will be found in favor of the plaintiff below.</p> <p>There was no evidence on the trial, to warrant a belief that the sheep in question had been delivered by either of the Daytons to the defendant below. Nor was a pretence of that kind set up on the trial.</p>

Replevin for saw logs; tried at the Warren circuit, June 21st, 1825, before Duer, 0. Judge. The logs in question were of trees felled by the ant on unenclosed timber land, which the plaintiff claimed as his own.