Volume 7 — Hill & Denio's New York Reports

Covenant, tried at the New-York circuit in December, 1843, before Kent, C. Judge. The action was brought to recover one quarter’s rent alleged to be due on a lease executed in July, 1839, by which the plaintiff demised to the defendant about three acres of land situated in the twelfth ward of the city of New-York.

<p>Where the defendant resorts to the practice of paying money into court, but the sum thus paid is found by the jury to be less than was due at the tune, the verdict and judgment should be for the whole amount of the plaintiff’s demand, without any deduction on account of the payment.</p> <p>The defendant, however, is entitled to the benpfit of the payment, by way of endorsement upon the execution. ' •</p> <p>If the sum paid into court is found by the jury to be equal to what was due at the time, the verdict should be for the defendant.</p>

ON.demurrer to plea. The declaration was in debt on a recognizance entered into at the oyer and terminer, conditioned that the defendant should appear and answer to an indictment found against him; alleging that he did not appear pursuant' to' the terms of the recognizance, but made default &c., and that thereupon the, recognizance was forfeited and ordered tobe prosecuted.

On error to the Columbia common pleas. .Barnes brought an action against Richard Cornell and three others, in a justice’s court, and declared as follows.: “ The plaintiff complains against the defendants for that heretofore, to wit, in the spring of 1840, Richard Cornell was duly elected a constable of the town of Chatham, in the county of Columbia; and afterwards, to wit &c.,- and previous to his entering upon the discharge of the duties of said office &c., the said…

Debt on recognizance. The declaration alleged that “ heretofore, to wit, on &c., at &c., John Brown was brought before John Taylor, one of the special justices for preserving the peace in the city of New-York, and was on oath in due form of law charged with the commission of a burglary, and thereupon the before named defendant [Philip Koeber] personally came before the said Robert Taylor &c., and entered into a recognizance in writing, signed with his own hand, by which…

<p>In an action upon a criminal recognizance taken before the recorder of the city of New-York, conditioned to appear and answer at the next .court of general sessions, the declaration averred that the accused was brought before the recorder, “and then and there charged with the commission of a grand larceny” &c., but failed to show that the charge was upon oath, or that the recorder decided upon it, or had any reason to believe it true. Held, insufficient.</p>

Assumpsit, tried at the New-York circuit in March, 1844, before Kent, C. Judge. The action was brought to recover the amount of a promissory note made by the defendant, bearing date the 19th of June, 1832, and payable to the plaintiff or bearer on the 1st of May, 1833. The declaration contained the common money counts. Plea, actio non accredit infra sex an-nos, to which the plaintiff replied a promise within six years See.

Action of trespass on the case, tried.at the Herkimer circuit in April, 1843, before Willard, C. Judge. The plaintiff claimed to recover against the defendants as common carriers for the value of an overcoat which had been lost under the following circumstances: In October, 1842, the plaintiff took passage in the evening train of cars at Utica, for Frankfort Bridge, some eight miles east of the former place, and paid his fare.

On demurrer, to replication. The plaintiff declared in assumpsit on a policy of insurance whereby the defendants insured the plaintiff’s dwelling house against loss or damage by fire, for the period of five years from the 12th of January, 1837, The declaration averred that the house was destroyed by fire on the 19th of August, 1841.

On error from the Wayne common pleas. Jackaway brought an action against Hall before a justice of the peace, and declared in trover for talcing and converting a coat. The defendant .pleaded the general issue, and the case proved on the trial was as follows: At a court martial, of which one Greene was president, a fine was imposed upon the plaintiff for not doing military duty.

On error from the Columbia common pleas. Skinner brought an action against Whitbeck in the court below, and declared for the use and occupation of a dwelling house let to the defendant by the plaintiff from the 1st of May, 1842, to the 1st of May, 1843, at a rent of one hundred and thirty dollars. The defendant pleaded the general issue, and gave notice that he would prove certain matters on the trial by way of recoupment.

Application in behalf of Alexander Paul, an alien, to become a naturalized citizen. The applicant was born in Ireland on the 15th of June, 1819, and arrived in the United States on or about the 20th of July, 1836, where he has ever since resided. The only question in relation to his right to be naturalized arose out of the following facts: In September, 1843, the applicant left the city of Rochester to go to Ogdensburgh, St. Lawrence county, by the way of the lake.

Replevin for a horse and some other property, tried at the New-York circuit in March, 1844, before Kent, G. Judge. The plaintiff claimed title to the property under a mortgage from one Abner Tooker, given on the 13th of July, 1842, to secure the payment of $2450, on demand, with interest.

This was an action of covenant commenced in 1840, and tried at the New-York circuit in June, 1843, before Kent, G. Judge.

Thompson sued Parmelee_before James M. Gray, a justice of the peace, by summons, returnable on the lith March, 1843. The parties appeared, and the defendant asked for a discontinuance, on the ground that the justice had, since his election to the office, become an inn-holder or tavern-keeper. A witness was thereupon sworn, who testified, in effect, that the justice was then an inn-keeper; but there was no proof as to when he commenced the business.

Information in the nature of a quo warranto, calling on the defendant to show by what authority he claimed to exercise the office of clerk of the court of common fleas for the city and county of New-York, and also clerk of the county court for the said city and county. The information contained an averment that the relator was clerk of the city and county of New-York, and of the before méntioned courts.

Willoughby sued Cleves in the court below, and declared in covenant “ for one quarter’s rent—seventy-five dollars—from the first of May, 1844, to the first'.of August, 1844.” The defendant pleaded non est factum, and gave notice that he would prove certain matters by way of recoupment.

<p>Though the affidavit required by 2 R. S. 373, § 60, subd. 3, for the purpose of entitling a judgment creditor to redeem lands sold under execution, cannot be waived by the officer, it may be by the purchaser or other person whose rights are sought to be acquired.</p> <p>A creditor, in order to redeem from a bank, went to the banking house during business hours, and -tendered the money &c. to the cashier, who accepted the same without objection, and gave a receipt. Held, that the creditor acquired the title of the bank, though the affidavit of the amount due on his judgment, presented to the cashier, was invalid.</p> <p>Held further, that the authority of the cashier to transact the business in behalf of the bank must be presumed until the contrary expressly appeared.</p> <p>Even had it appeared that the cashier was forbidden by the bank to transact such business, the redemption would have been valid. Semble.</p> <p>A sheriff’s deed to an assignee of the certificate of sale is valid, though the assignment has neither been proved, acknowledged nor filed, according to the act of 1835.</p> <p>Where the cashier of a bank assigns a certificate of sale owned by it, affixing the corporate seal to the assignment, his authority to do so will be presumed until the contrary appears.</p> <p>The^ presumption of authority on the part of the cashier will not be overcome by evidence that the board of directors had passed no resolution on the subject.</p>

Demurrer to pleá. The declaration alleged that the defendant, on the 1st of December, 1842,with force and arms, &c., made an assault on the said plaintiff, in and on board of a certain brig or vessel called The Somers, then on the high seas, to wit, at the county of Kings, in the state of New-York, and then and there, with great force and violence, struck and knocked the said plaintiff down to and upon the deck of the said brig or vessel, and then and there, with his fists,…

Action on the case tried at the Madison circuit in September, 1843, before Gridley C. Judge.

On demurrer to the declaration. The first count was in these words: “ For that whereas the said defendants, [Benjamin B. Hutchins, Daniel Strang and Sarah his wife, James W. Wilde and Caroline his wife,] heretofore to wit, on the first day of January, 1842, and at sundry times previous thereto, at Fishkill, to wit, at the town of Poughkeepsie in the county of Dutchess, did fraudulently combine, confederate and conspire with each other, maliciously and for the purpose of…

<p>Where an infant enters into a contract for the purchase of property, and perforins work in part payment of the price, but avoids the contract on arriving at full age, without having received any.thing under it, he may recover for the work on a quantum meruit.</p> <p>The case of McCoy v. Huffman, (8 Coweut 84,) reconsidered and overruled.</p>

On error from the superior court of the city of New-York. Newell brought an action of covenant against Kimball in the marine court of the city of New-York, claiming to recover certain rent due on a lease to one Theodosia Knowlton, for whom the defendant had become surety.

This case was before the court in October, 1843, and is reported in 5 Hill, 588. It was re-tried in May, 1844, before Whiting, 0. Judge, when the plaintiff objected, among other things, that the matters stated in the return to the fi. fa., relating to the service of the order to stay proceedings, and the casual destruction of the goods by fire, (see 5 Hill, 589,) were not evidence in favor of the defendant.

Assumpsit on a policy of insurance, tried before Gridley, C. Judge, at the Oneida circuit, in September, 1843.

<p>A declaration in replevin for taking and detaining goods must show that the-plaintiff has either a general or special property in them. An allegation that he is entitled to the possession will not answer.</p>

On error from the superior court of the city of New York, where Hays sued Stone and others for money had and received, and the case was this: Hays was a merchant residing in Liverpool, England, and the defendants were his agents in the city of New-York. Between the 20th of January and the 6th of February, 1837, various sums of money belonging to the plaintiff were received by the defendants; and were placed by them to the credit of the plaintiff.

Naturalization. A question arose at the last general term respecting the admissibility of affidavits, taken out of court, to establish the right of citizenship, in the course of proceedings instituted for the purpose of naturalizing an alien. The question was held under advisement until the present term, when the following opinion was delivered.

moved to set aside a default for not pleading entered by the defendant. He read an affidavit showing that a plea was served by mail in due season, and that the plaintiff’s attorney returned it, alleging that it was not served in time, but mentioning no other irregularity. read an affidavit of the plaintiff’s attorney showing that the plea came charged with postage.

Amendment. To a declaration against one of two partners on a note made by the firm, the defendant pleaded the non-joinder of his copartner in abatement. The plaintiff replied the discharge of such copartner under the bankrupt law, and the defendant demurred to the replication. After the lapse of more than twenty days from the time when the plea in abatement was put in, moved for leave to amend by making the partner not joined a co-defendant

Interest on verdict. On the 21st of June, 1843, the plaintiffs obtained a verdict against the defendants of $62,888,73, in a special action on the case for negligence. The defendants moved for a new trial in October, 1843, and in May, 1844, the motion was denied. On the 3d of June, 1844, the plaintiffs perfected judgment, having previously taxed their costs ex parte.

moved to strike out a plea as frivolous after it had been demurred to. said the motion should have been made before the plaintiff demurred ; and that no precedent could be found for moving afterwards. But

<p>Motion in behalf of the defendant, who was indicted in the county of Richmond, to change the venue to the city and county of New-Tork, on the ground that a fair and impartial trial could not be had in the former county. The facts are sufficiently stated in the opinion of the court.</p>

Redemption. On the 9th of June, 1841, H. Wilson obtained a judgment in the supreme court against Evert A. Banker. The latter was then the owner of a leasehold interest in two lots situated in Delaney street, in the city of New-York, viz. lots No. 309 and 315.

The plaintiffs brought error to reverse a judgment of the Monroe common pleas, rendered upon certiorari to a justice’s court, but gave no bail in error. And now moved to supersede or quash the writ, and cited 2 R. S. 595, §§ 26 to 30. said the sections cited were not applicable to writs of error brought for the reversal of decisions made on certiorari. He cited and commented on 2 R. & 597, § 31. But

Action for an assault and battery. On an affidavit of an unprovoked assault upon and a grievous beating of the plaintiff, the defendant was held to bail in the sum of $400 under a judge’s order for that purpose. And now, moved to vacate the order on the ground that the affidavit did not show that the defendant was about leaving the state.

<p>A party moving to consolidate suits which are to be defended must show by his affidavit that the questions to be tried in them will be substantially the same.</p> <p>Where the affidavit was “ that the defence in each and all of the actions will be substantially the same,” but the nature of the defence was not stated; held, insufficient.</p> <p>Whether a consolidation of actions for libel will be ordered, quere.</p>

It was for a motion “ that this cause be referred to Elias W. Leavenworth of Syracuse,” without naming any other referee. t

moved to supersede or quash the writ of error issued in this case to the Cortland C. P., on the ground that the bail in error had not justified pursuant to the act of May 7th, 1844. (Sess. L. of '44, p. 466, § 1.) After exception, the bail justified in proper time; but it was done ex parte, without notice to the defendants in error. The court cannot grant the motion. Application should have been made to an officer at chambers.

Hinton distrained the goods of Weed in the city of New-York, for $11 rent arrear, Rogers making the distress as marshal. Weed thereupon brought this action of replevin, and, on serving the writ, a notice of two days was given to the defendants of the time, place and officer, when, where, and before whom the plaintiff’s sureties would justify.

<p>A voluntary payment, made under a mistake of law, but with full knowledge of all the facts, and not induced by any fraud or improper conduct on the part of the payee, cannot be recalled. Per Bronson, J.</p> <p>A creditor, in order to redeem lands sold under execution, must comply strictly with the requirements of the statute. Per Bronson, J.</p> <p>Where lands are sold at the same time under several judgments, for a sum sufficient to satisfy them, a creditor cannot redeem by depositing with the sheriff merely the amount of one of the judgments with interest, though the other judgments are younger than his own; the purchaser being entitled to the whole sum paid on the sale &c.</p> <p>Nor can such creditor, after depositing the sum paid by the purchaser with the sheriff, compel the application of any part of it to his own judgment.</p>

Willoughby, in November, 1838, executed his bond to the Mechanics’ Banking Association in the penal sum of $120,000, conditioned to pay $60,000 in ten years, with interest at six per cent payable half-yearly. The bond and a mortgage accompanying it were assigned to the comptroller as security for circulating notes under the general bank law.

Rosevelt served Giles with a notice tinder the statute relating to “ proceedings to eompél the determination of claims to real property” &c., (2 R. S. 312,) and on the 18th of Hay last a rule was entered requiring the defendant to appear and plead within forty days.

Amendment. The defendants were sued as partners. On the 22d of August last Manchester pleaded the general issue, and on the 28th of the same month Nash demurred to the declaration. Before the time for joining in demurrer had expired, but after the lapse of more than twenty days from the service of the plea, the plaintiff amended his declaration, and served a copy on each of the defendants.

In assumpsit against the defendants as joint debtors, both having been served with process, they united in pleading nonassumpsit ; and the defendant Seymour put in a further plea of a bankrupt’s discharge, which was granted before the suit was commenced. moved for leave to enter a discontinuance or nolle prosequi as to Seymour, with liberty to continue the proceedings against Gifford. As the discharge was obtained before suit brought, the plaintiff must pay Seymour’s costs.

moved to quash the writ of error issued in this case to the Cayuga C. P., on the ground that the cause was brought into the C. P. by certiorari from a justice’s court, and the certificate that the cause was a proper one to be carried to this court was made by one of the puisne judges when the first judge was in the county.

In October, 1843, application was made to the first judge of Genesee in hehalf of Sarah Dickinson, a person in indigent circumstances, but not a pauper, who had become insane; and the judge after inquiring into the matter made such certificate as is provided for by the 26th section of the act to organize the State Lunatic Asylum. [Slat. 1842, p.' 148.) The lunatic was thereupon admitted into the asylum at Utica; and the county of Genesee .paid her expenses for clothing and…

in behalf of the corporation of the city of New-York, moved that certain persons named by him be appointed commissioners of estimate and assessment, pursuant to 2 R. L. 409, § 178. The papers on which the motion was founded were silent as to the qualifications of the persons named.

<p>An affidavit swearing to the advice of counsel in the form required by the 61st rule of the court, may he invalidated by showing that the person who gave the advice is an attorney merely, and not a counsellor.</p>

Redemption of lands. Perrin, sheriff of the county of Monroe, sold certain lands belonging to Abraham M. Sehermerhorn, by virtue of a judgment and execution against him. The time for creditors to redeem expired on Sunday the 15th of May, 1842; and the Bank of Monroe, one of the creditors, redeemed on the day previous.

Replevin. On the trial of the issue joined in this cause, the circuit judge charged the jury, who retired to deliberate, and afterwards returned into court with a verdict for the plaintiff as to a portion of the property, and for the defendant as to the residue. moved to set aside the verdict as irregular.

<p>In making distribution of the estate of an absconding, concealed or non-resident debtor, the trustees are bound, under 2 it. S. 47, § 34, to prefer debts owing by him as guardian, executor &c.</p> <p>The authority of an executor, when duly perfected, relates back and legalizes payments made to him before he qualified ; and the moneys received will thus become a debt owing by him as executor within the-meaning of the above statute.</p>

Bail in the action of trover. One of the plaintiffs made an affidavit establishing the following facts: The plaintiffs were merchants doing business in the city of New-York under the name of Suydam, Sage Upon this affidavit, F. P. Stevens, the first judge of Erie county, on the 7th of February, 1845, made an order that the defendants be held to bail in the sum of $30,000, on a capias in trover for the property; and Oren Smith, one of the defendants, was on the same day…

The plaintiff recovered a judgment against the defendant in this court for $112,20 damages and costs. Failing to collect the money by execution, he filed a creditor’s bill against the defendant in the court of chancery; but as he did not discover property to the amount of $100, the bill was dismissed with costs.

An attachment was issued by a judge of Onondaga county, on the 24th of June, 1844, against the property of David Bliss, of the town of Pompey in said county, on the ground that he was an absconding or concealed debtor.

■ On the 30th of January last the plaintiff took an inquest in this cause at the New-York circuit. After failing in a negotiation to have the proceeding waived, the defendants’ attorney, on the 8th of February, obtained an order of the circuit judge staying the plaintiff’s proceedings until the judge’s motion term in March, and until the decision of the court upon a motion then to be made to set aside the inquest. The plaintiff had in the meantime entered judgment.

<p>The fifth section of the act passed April 5th, 1842, prohibiting the Opening of court in any city or town on the day of election, does not apply to mere charter elections#</p>

Ejectment, to recover a farm in Schodae, Rensselaer county, which the plaintiffs claimed in fee.

Re-taxation of costs. The defendant had been sheriff of the county of St. Lawrence; and this was an action of assumpsit to recover money which one of his deputies had collected on an execution. The plaintiff was not the person in whose favor the execution issued; but he brought this suit on the ground that he was entitled to the money. On a trial in Onondaga, where the venue was laid, a verdict was rendered for the defendant, and the taxing officer allowed him double costs.

<p>In April, 1844, Rosevelt served Mrs. Giles with a hbtice under the statute li to compel the determination of claims td real property,” (2 R. ¡S. 312; et seq.,) in relation to certain premises in the city of Ñew-Yofk; On the 18th of May he filed a copy of the notice; with proof of service, and entered a rule requiring Mrs. Giles to appear and plead thereto within forty days. On the 28th óf June, the default of Mrs. Giles was entered, and judgment perfected against her. On the 20th of October following, Mrs. Giles commenced an ejectment suit against Rosevelt, in the usual way, for the recovery of the same premises described in the notice which had been served by him. In November, Rosevelt, who had previously appeared in the ejectment suit, pleaded therein not guilty, and served with the plea a notice that he would rely on the before mentioned proceedings under the statute ás a bar to the action. Mrs. Giles then gave notice of a motion, which was made at the last December special term, and upon which the court made an order on the 10th day of January last, that the default entered by Rosevelt against Mrs. Giles, and all subsequent proceedings in that matter, be set aside for irregularity. The irregularity consisted in entering the default as a rule of course, without moving the court. [Ante, p. 166.] On the 7th of March last, Mrs. Giles entered and gave notice of a rule discontinuing the ejectment suit; and at the same time she served a plea in bar of the statute proceeding, that neither Rosevelt, nor those whose estate he has, had been in the actual possession of the premises claimed for three years next before the service of the notice. On the 14th of March, Rosevelt taxed his costs in the ejectment suit, and they were paid by Mrs. Giles'; and ten days afterwards Rosevelt gave notice of the present motion. The attorney for Mrs. Giles now swore that the ejectment suit had no connection with the notice which had been given by Rosevelt, but was intended as an entirely independent proceeding.</p> <p>moved to set aside the plea in bar of the statute proceeding, which had been served by Mrs. Giles, as being irregular.</p>

Costs against a party in interest. John Percy, having a judgment against Andrew M’Hench, filed a creditors bill, against him in tfyp court of chancery; and such proceedings were had that Robert D. Watson was appointed receiver.

The hill Was filed before the vice chancellor of the fourth circuit, by the respondent Sarah Burr, against hei husband, for a separation from bed and board, on the ground .of cruel arid inhuman treatment; and of such conduct on the part of. the appellant as rendered it unsafe and improper for her to cohabit with him; The vice chancellor decreed a separation from bed and board; and allowed the respondent $>10,000 a year for alimony; commencing from the date of the decree,…

For a report of the case in that court, together with the opinion and decision of the chancellor, see 10 Paige, 274 et seq. The reporter’s statement at p. 277, relating to the sale in question, and the intended disposition of the proceeds, is in some respects inaccurate, inasmuch as it conveys the impression that the trustees were acting in furtherance óf the objects contemplated by the arrangement of November, 1841.

<p>A valid agreement made between the creditor and principal debtor, without the assent of the surety, by which the rights or remedies of the latter are in any way changed or delayed, will operate to discharge him, though not apparently prejudicial to his interest.</p> <p>Accordingly, where time is given to the principal debtor, without the assent of the surety, though but for a day, he is discharged.</p> <p>So where the debtor’s obligation is to pay in money, and the creditor binds himself, without the assent of the surety, to receive land.</p> <p>The rule applies though the agreement between the creditor and principal debtor is made after the debt for which the surety became bound has passed into judgment.</p>

Andrew Stickles, the original defendant in the suit, having died after the hearing in the court below, his administrator and administratrix were made respondents in this appeal. For the facts of the case, together with the opinion of the chancellor, see 8 Paige, 398 et seq. The case was argued here by

<p>On appeal from the court of chancery, where a decree was made reversing the decision of the vice chancellor of the first circuit. For a statement of the case, and the opinion of the chancellor, see 9 Paige 507 et seq. The case was argued here by</p>

made reversing the decision of the vice chancellor of the eighth circuit. For the facts of the case, and the opinion of the chancellor, see 9th Paige, 649 et seq. The case was argued here by

<p>A moneyed corporation liable to taxation on its capital is to be assessed upon the whole nominal amount paid in and secured to be paid, after deducting expenditures for real estate, and such of the stock as the statute exempts.</p> <p>No deduction is to be made for losses of capital sustained by the corporation, nor for debts due from it.</p> <p>Nor can a deduction be made for such part of its capital as is invested in the stock of other corporations liable to taxation. Semble.</p>

On error from the supreme court, where Fairchild brought an action and recovered a verdict against Slocum and others, for an injury to certain goods which the latter had undertaken to transport.

<p>On appeal from the court of chancery, where an order made by the vice chancellor of the eighth circuit, to recommit the appellant, was affirmed. For a statement of the case, together with the opinion of the chancellor, see 10 Paige, 284, et seq.</p>

On error from the supreme court, where ejectment was brought by the present plaintiffs in error, and judgment rendered in favor of the defendants, on a special verdict. The leading facts stated in the special verdict, together with the opinion of the supreme court, are reported in 23 Wend. 513 et seq. Some additional facts connected with the case are also stated in the following opinions.

<p>On error from the supreme court. Hutton sued the American Insurance Company in the superior court of the city of New-York, on a policy of insurance upon the brig Champion, and recovered judgment for $8694,73, which was afterwards reversed by the supreme court. For most of the facts proved on the trial, and the reasons of the supreme court for reversing the judgment, see 24 Wend. 330 et seq. Some additional facts connected with the case are stated in the following opinion of the chancellor.</p> <p>1. A policy on time always contemplates and sanctions trading voyages; and, within the time limited, they may be pursued to any ports or places whatever. (Coggeshall v. The American Insurance Company, 3 Wend. 283.) 2. A long time policy is more advantageous to the insurers than a short one, if the premium is proportional, and the vessel continues seaworthy; and, with the concurrence of these circumstances, the insurers gain by any extension of the original time. 3. It was well known to both parties that New-York was the home port of the vessel in question; and it was of course well understood that, whithersoever the vessel should proceed during the year named in the policy, New-York was to be the port of her final destination. 4. The vessel sailed from her home port on the trading voyage in which she was lost, one hundred days before the year named in the policy had expired; and had therefore ample time to accomplish the voyage out and home-within the year, if she had not been delayed by extraordinary sea perils, it being in proof that seventy-five days was sufficient for the accomplishment of the voyage round. 5. The special provision in the policy that, if the vessel was at sea at the end of the year, the risk should continue at the same rate of premium until her arrival at the port of destination, was intended to afford protection to the vessel until her arrival at her final or home port, viz. at the port of New-York, should she happen to be from home at the expiration of the year. 6. Before the expiration of the year the vessel had contracted to proceed to New-York direct, and had engaged freight for the passage, and was undergo- ' ing repairs to enable her to accomplish it. When the year expired the vessel was bona fide bound direct to New-York, and would have been actually on the high seas in the prosecution of such direct passage home, had she not been detained by sea damage, and the consequent necessity of repairs. 7. The detention of the vessel beyond the year by needful repairs at the port of necessity, should not deprive the assured of the extended time allowed by the special provision in the policy. 8. During the whole period of her absence from home in the prosecution of her trading voyage, the vessel was at sea, within the true meaning of the policy, including the time of her detention in ports, as well as the time of her sailing on the high seas. (Wood v. The New England Marine Ins. Co. 14 Mass. Rep. 31; Bowen v. The Hope Ins. Co. 20 Pick. 275; The Union Ins. Co. v. Tyson, 3 Hill, 118.)</p> <p>1. The vessel, at the expiration of a year from the commencement of the policy, was not at sea within the meaning of the clause in question, but in a port of destination. (Lapham v. The Atlas Ins. Co. 24 Pick. 1.) 2. The words at sea are to be understood according to the phrases in connection with them, and are defined in this policy by the words passage and port of destination. (Bowen v. The Hope Ins. Co. 20 Pick. 278.)</p>

On error from the supreme court. Butler sued The Mayor <fcc. in the superior court of the city of New-York, and obtained judgment; but in consequence, of certain decisions at the ' trial a portion of his claim was excluded. He accordingly made a bill of exceptions, and brought error to the supreme court, where the judgment of the superior court was affirmed. For the facts of the case, and the opinion of the supreme court, see 1 Hill, 489, et seq.

On error from the supreme court. D. Waldron and Sally Ann his wife, the present defendants in error, brought ejectment in the court below against the plaintiff in error, claiming to recover certain lands in the county of Westchester. The cause was tried twice; once in November, 1839, and again in April, 1841. The first trial resulted in a verdict for the defendant below, which was subsequently set aside by the supreme court and a new trial granted.

On error from the supreme court, where the defendants in error brought ejectment against Kip, to recover two adjoining parcels of land; one containing about eighty acres, and the other about thirty acres. The jury found a special verdict, on which the supreme court rendered judgment against Kip for one undivided half of a fifth of the eighty acre parcel^ and he thereupon brought error to this court.

<p>On error from the supreme court, where an action was brought against the present plaintiffs in error by Jermaine, for flowing his lands lying along the margin and inlet of Crooked Lake, by means of a dam. A verdict was rendered in favor of Jermaine, and the plaintiffs in error, having made a case and bill of exceptions, moved for a new trial, which was denied by the supreme court, and judgment rendered accordingly. For the facts of the case, and the opinion of the supreme court, see 1 Hill, 279- et seq. The principal exceptions taken at the trial were to the charge of the circuit judge as there reported,</p>

On error from the supreme court. J. & E. B. Little brought an action against The Phenix Bank, in the superior court of the city of New-York, and judgment was there rendered in favor of the bank. The supreme court afterward affirmed the judgment; and thereupon error was brought to this court. For the facts of the case and the opinion of the supreme court, see 2 Hill, 425, et seq.

On error from the supreme court. Cagwin brought an action of assumpsit against Paige in the court below, claiming to recover the amount of a promissory note made by Noble, Smith and Paige, bearing date the 8th of January, 1838, whereby they jointly and severally promised to pay Freeman Tan Dyke, or bearer, four hundred dollars, with interest, thirty days after date, The cause was tried at the Oneida circuit in April, 1840, before Gbidley, C. Judge; and the principal question…

On error from the supreme court. For a report of the case in that court, together with the opinion there delivered, see 5 Hill, 27 et seq.

On error from the supreme court. Underhill brought an action of assumpsit against Pomeroy in the court below, and the cause was referred. The declaration contained the common counts for work, labor &c.; and the plaintiff claimed to recover for services in sawing lumber in the season of 1835.

In August, 1843, the respondents filed their bill against Allison Post, appellant, and one Asa Hartshorne, before the vice chancellor of the fifth circuit, stating in substance the following among other facts: In April, 1842, the respondents purchased certain lands in Oneida county, for the sum of $3000, at a sheriff’s sale, under a judgment obtained by them in October, 1839, against one Anson Dart, who was then the owner.

On error from the supreme court. Hall brought an action against Newcomb in the New-York common pleas, and declared against him in one count as maker, and in another as guarantor, of a promissory note, as follows: “New-York, April 23d, 1840. On demand, I promise to pay to Samuel Hall, or his order, two hundred and fifty dollars, for value received, with interest, until paid. (Signed) Peter Farmer.

On error from the supreme court, where Elizabeth Snyder, the defendant in error, brought an action of ejectment against Philip Sponable, the plaintiff in error, and recovered judgment. For a report of the case in that court, see 1 Hill, 567 et seq. It was argued here by

On error from the supreme court. The case is reported in Hill, 565 et seq. In addition to the plea to the avowry there stated, the plaintiff interposed a further plea of no rent in arrear, on which a trial was had before the cause was removed to the supreme court, and the jury found a verdict in the plaintiff’s favor.

On error from the supreme court, where the corporation of the city of Albany sued the present plaintiffs in error, and recovered judgment. For a report of the case in that court, see 5 Hill, 71 et seq. It was argued here by

On the 14th of February, 1840, Sherwood, the appellant, filed his bill before the vice chancellor of the first circuit, to restrain the giving of a conveyance under a mortgage sale made by certain loan commissioners appointed pursuant to the act of April 4th, 1837, (íSess.

<p>On error from the supreme court, where Ketchum brought an action against Barber and others, and recovered judgment. For a report of the case in that court, together with the opinions there delivered, see 4 Hill, 224 et seq. It is stated at p. 226 of the report, that the two notes made in June, 1840, were endorsed by Barber and Leonard. This is a mistake. The note for $1000 was so endorsed, but the name of Leonard did not appear upon the note for $2000. At p. 227 of the report it is said that the notes sued upon were discounted by the firm of Ketchum & Co., with knowledge that the proceeds were intended to be applied to the payment of the notes made in June, 1840. On this subject the referee’s report was as follows: “ That he, Burr, showed the notes [sued upon] to the plaintiff, and enquired if those notes could be discounted, and that the plaintiff agreed to discount them, and did so, giving checks for the proceeds at the time they were respectively discounted; and further the referee reports, that this discounting of the said notes was without any express notice to the plaintiff that the money was wanted to take up the former notes, [made in June, 1840,] and without any agreement on the part of Muir or Burr that the proceeds should be so applied, and that there was no condition to that effect annexed to the discount. But the referee reports, as a conclusion of fact, that the plaintiff, when he discounted these notes, had good reason to believe, and did believe, that the money would be applied to pay off the said former notes, and that he had especial reason to believe so when he discounted the last of the said notes, two days after he had discounted the first one, on which last occasion the said Burr showed the plaintiff one of the first set .of notes, taken up, and with his (plaintiff’s) name erased, though the said Ketchum & Co. had discounted a great many notes for the said Burr before, and had previously discounted one or more notes of Muir’s. The referee also reports, that the proceeds of the notes discounted by the firm of the plaintiff, were applied by the said Burr to take up the former notes, and' that it was the intention of the defendant Muir that they should be so applied, and said notes were made and procured to be endorsed by Muir for that purpose.”</p> <p>The above statements are rendered necessary, it will be perceived, in prder to exhibit fully the grounds taken in some of the following opinions.</p> <p>The questions argued here were, 1st. Whether the evidence of notice to the endorsers was sufficient; and 2d. Whether the notes sued upon were to be deemed usurious,</p>

On error from the supreme court, where Joseph Kissam, the defendant in error, brought assumpsit against Edwin Forrest, claiming to recover for work done, money expended and materials furnished in building a house at New Rochelle, Westchester county. The cause having been referred, the hearing was commenced on the 19th of April, 1839, and was continued from time to time until June following.

On error from the supreme court, where Northrop, the defendant in error, brought ejectment against Wright, to recover an undivided third part of one eighth of a lot of land, containing about ten ácres, situated on the easterly side of the Bloomingdale road, in the city of New-York. The cause was tried at the New-York circuit, in March, 1837, before Edwards, C. Judge.

On error from the supreme court. For a report of the case in that court, and the opinion there delivered, see 3 Hill, 593 et seq. It was argued here by

On error from the supreme court. For a report of the case in that court, together with the opinion there delivered, see 5 Hill, 60 el seq. It was argued here by

On error from the supreme court, where judgment was rendered against The Board of Supervisors of Niagara County, now plaintiffs in error. For a report of the case in that court, and the opinion there delivered, see 4 Hill, 20 et seq. It was argued here by The counsel for the plaintiffs in error contended that banking institutions organized under the act of April 18th, 1838, are not liable to taxation under 1 R. S. 414, § 1 et seq., for the following reasons, viz. 1.

■ On error from the supreme court, where Lawrence brought an action of replevin against French, for certain property seized by the latter under a distress warrant for rent. The cause was tried in June, 1839, at the Albany circuit, and a verdict rendered in favor of French, which was afterwards set aside, and a new trial granted.

On error from the supreme court, where the judgment of the recorder’s court of the city of Buffalo was reversed. For a statement of the facts, together with- the opinion of the supreme court, see 4 Hill, 166 et seq. The case was argued here by

On error from the supreme court, where the judgment of the New-York common pleas was reversed.

<p>On error from the supreme court. For a report of the case in that court, see 3 Hill, 287 et seq. It was argued here by</p>

On error from the supreme court. For a statement of the case, together with the opinion of the supreme court, see 5 Hill, 116 et seq.

On error from the supreme court, where the judgment of the superior court of the city of New-York was affirmed. For a report of the case in the supreme court, and the opinion there delivered, see 5 Hill, 490 et seq.

On error from the supreme court, where the plaintiffs in error brought an action on the case against the defendants in error, for negligence in towing the canal boat Astorogan, belonging to the former, up the Hudson river between New-York and Albany, by means of the steamboat New-London.

On error from the supreme court, where the judgment of the superior court of the city of New-York was affirmed. For a statement of the facts, and the opinion of the supreme court, see 3 Hill, 621 et seq. 1st. The plaintiff’s dam was constructed under the act of April 8th, 1813, (3 Laws of N. Y., Web. & Skin. ed. p. 161,) and could not be abated except by legal process. (Crenshaw v. The Slate River Company, 6 Rand.

On error from the supreme court, where the judgment of the superior court of the city of New-York was reversed. For a report of the case in the supreme court, and the opinion there delivered, see 5 Hill, 413 et seq. It was argued here by

Qn error from the supreme dourt, where Beddoe brought an action of debt against McDuffie, sheriff of Albany, for the escape of one Webster from the jail limits.

<p>On error from the supreme court, where judgment was rendered in favor of Dorr, one of the defendants in error, on demurrer. For a statement of the case, and the opinion of the supreme court, see 25 Wend. 440 et seq,</p> <p>contended that the plea of Dorr admitted a breach of the condition of the bond declared on. The fact that the money was stolen from him does not constitute a payment and accounting, within the meaning of the condition, and is no answer to the action. The county treasurer is a debtor to the county for all public moneys received by him, over and above the amount of his commissions. (1 R. S. 369, §§ 18 to 26; id. 404, §§ 33, 4.) He has entire discretion as to the kind of money to be received, the place where it shall be deposited, and the person who shall take charge of it; and public policy requires that he should be held responsible for losses by theft in all cases.</p> <p>The receipt and disbursement of the moneys of a county by its treasurer, is simply the discharge of a public official duty. (1 R. S. 369, § 20.) The statute does not make the treasurer an insurer of the public moneys while they necessarily remain in his hands; nor is he made an absolute debtor to the county for the amount received. (Id.; and see 1 R. S. 372, §§ 35, 38, 39, 40; id. 166, 7, §§ 1, 5, 8; Jones v. Lewis, 2 Ves. 241; Morely v. Morely, 2 Cas. in Ch. 2; Lewin On Trusts, 299.) According to the principles of the common law, an officer concerned in the receipt and disbursement of public moneys is merely a bailee for hire, while they necessarily remain in his hands, and is not answerable for losses which happen without any want of diligence, care, skill or integrity oh his part. (25 Wend. 441, 2, and the cases there cited by Nelson, Ch. J.; Browning v. Hanford, 5 Hill, 588, 591, 2; Story On Bailm. §§ 620, 1.)</p>

On error from the supreme court. For a statement of the facts, and the opinion of that court, see 5 Hill, 163 et seq. The case was argued here by

In 1843, Eliza Gird, the respondent, filed a bill in chancery against D. P. Hall and Caroline his wife, before the vice chancellor of the first circuit, for the foreclosure of a mortgage executed by them to the respondent, dated in November, 1835.

Motion to set aside a rule taken by default. The cause came here upon writ of error, and was regularly noticed and set down for argument previous to the 3d of October, 1844, on which day the defendant in error died. It was reached in its order upon the calendar on the 6th of January, 1845, when his counsel took the usual rule for judgment of affirmance, no one appearing on the other side, and the remittitur was accordingly sent to the supreme court.