Volume 7 — Johnson's New York Reports

THIS was an action of trespass. The declaration contained three counts: 1. For breaking and entering the close of the plaintiff, and treading down and destroying the grass, &c. 2. For breaking and entering the plaintiff’s close, and cutting down his trees, &c. 3. For breaking and entering the close of the plaintiff, and taking and carrying away the goods and chattels of. the plaintiff, &c. Plea, not guilty.

THIS was an action of ejectment, for land in the city of New-York. It was tried at the sittings in New-York, in June, 1809, before Mr. Justice Spencer.

THIS was an action of ejectment, for land, in the town of Rochester, in the county of Ulster, and was at the Ulster circuit, in September, 1809, before the Chief Justice, and a struck jury. The controversy, relative to the premises in question, has been several times before the court, and. various questions decided. [See 2 Johns. Rep. 230. 4 Johns.

IN error, on certiorari, from a justice’s court. e Mason declared against Gillet, before the justice, in an . _ r . , . . action or trespass, for cutting down a tree containing a c , , . .it i i swarm of bees, and carrying away the bees and honey, which the plaintiff below had before found, and bad marked the tree with the initials of his name. . . Gillet pleaded the general issue : and there was a trial by jury. , , , , .

IN error on certiorari, from a justice’s court. Johnson sued M'Nutt, before the justice.

IN error, on certiorari, from a justice’s court, ihe suit below was an action or debt upon a judgrnent between the same parties, rendered before another insfire justice.

<p>IN error, oil certiorari, from a justice’s court,</p> <p>King sued Rice before the justice, m an action or assumpsit, for 1,000 hogshead staves. Rice pleaded the general issue; and, afterwards, at the day adjourned for trial, he pleaded a former trial and verdict in bar. The r ■ • former trial was an action of trespass for the same staves, and a verdict was found for the defendant. The plaintiff admitted the truth of the plea; arid proved, in support of his action, that the defendant acknowledged that he had taken a load of staves of the plaintiff, and that e he would take the residue, and pay him. The defend- , , . . r ant proved by a witness, who was a juror on the former trial, that they found a verdict for the .defendant, because it did not appear that the plaintiff had any right to the staves. The justice charged the jury, that, as the former action was trespass, and the plaintiff had not, in that case, recovered any thing for the staves, the judgment in that action was no bar; and they found accordingly for the plaintiff below.</p>

IN error, on certiorari, fr.om a justice’s court. Hopkins sued Bull before the justice, and declared f°r money paid and laid out, for the use of defendant. The defendant pleaded non assumpsit, and that the same 1 1 ’ demand had been pleaded by way of set-off, to a suit . , brought by Bull against Hopkins. On the trial, the demand was proved by the admission of the defendant; an¿ that the set-off had been exhibited at the former triaI> and rejected by the jury.

IN error, on certiorari, from a justice's court. Horton sued Allen, before the justice, in an action of 4~sumt, and the defendant offered matter by way of set-off; b~it it was rejected, on the ground that it ought to have been set off in a former action of trespa~8, between the same parties. This was the only point.

<p>In an action on a promise to deof boards, at a certain time and place, the that he had*'the timefand^piactq ready, &c. and it was proved, that boards of sufficient quantity and quality were at the place at the time, but not "know dto lonqed ^ií was heid, that the plamtiff was entitled to recover,</p>

IN error, on certiorari, from a justice’s court. Alexander declared against Pease, before the justice, upon a promise to pay four dollars for his son Thaddeus.

THIS was an action Of assumpsit. The cause was at the Ontario circuit, in June. 1808, before Mr. Justice Spencer. The plaintiff declared against the defendant, as maker of a promissory note, for 530 dollars, dated 9th December, 1805, payable 15 months after date plea non assumpsit. At the trial, the noté Was proved.

THIS was an ejectment for part of lot No. 78. in Manlius in the county of Onondaga. The cause was tried before the Chief Justice, at the Onondaga circuit, the 12 th 0f September, 1808. The plaintiff gave in evidence an award, of the Onondaga commissioners, dated the 11th of December, 1798, in favour of Ogden, one of the lessors. A dissent to this award, in behalf of John Taylor, was entered on the 11th of November, 1800.

<p>The law as to trials by jury in other courts, applies to justices’ courts.</p> <p>After a verdict is pronounced in court by a jury, they may alter it before it is received and recorded.</p> <p>After a verdict is received, the jurors may be examined by the poll, and either of the jurors may disagree to the verdict.</p> <p>After a jury have retired to consider of their verdict, they may come back into court and hear evidence as to any matter of ■which they have doubts.</p> <p>The court may also send a jury back to reconsider their verdict, before it is recorded, if there is a mistake.</p>

<p>IN error, on certiorari, from a justice’s court.</p> <p>Trumbull sued M'Intyre before a justice. The plaintiff declared that Stebbins, the under-sheriff of M'Intyre, had taken more fees of the plaintiff, for collecting money ° J On an execution, than he was by law entitled to, &c. The defendant pleaded the general issue. The. cause was tried by a jury. Two witnesses were sworn for the plaintiff. Verdict for the plaintiff, for 10 dollars and 69 cents.</p>

IN error, on certiorari, from a justice’s court. Eislord brought an action of assumpsit against Scouton, before the justice. The plaintiff declared on a note of hand given by the defendant to the plaintiff on the 14th April, 1806, and for goods sold, &c. The defendant paid into court 25 cents for the goods sold, &c. and 62 cents for the costs; and as to the note, he pleaded a discharge under the insolvent act.

THESE were actions on two open policies of insurance; one on the vessel, and tife other on the cargo, of the brig called the William Tell, dated 16th December, 18O~, at and from 1V~w-Thrk to St. Lucar. The policies.' contained the following written clauses: Warranted American property; proof whereof, if required, to be made here only. In case of capture or detention, not to abandon in less than six months after ~dvice thereof at this office, or until after condemnation.

THIS was a policy of insurance on the ship Two Marys, “ at and from Nezv-Tork^ until she should bé safely arrived at NanlzT At the foot of the policy, which was dated December 10th, 1807, there was the following written clause : “ Warranted by the assured American property, (proof whereof to be required here only,) and not to abandon in case of capture or detention, until six months after advice thereof is received at this office, or until after condemnation $ also free from…

THIS was an action of debt, brought against the defendant, as supervisor of the county of Cayuga, for neglecting and refusing to levy and raise, by tax, on the freeholders and inhabitants of the county, a sum not exceed-mg 800 dollars, for the purpose of building a fire proof clerk s office, near the court-house, &c. pursuant to the directions of the act of the legislature, passed the 3d of April, 1807. (Sess. 30. c. 122.) The declaration contained three counts.

IN error, froñi the court of conirnon pleas of buchc~j county. The suit below was an action of assump~iton a pro.~ missory note given by the defendant to David .Z~Thwton, payable, on demand, to Newton, or bearer, for the sum of 55 dollars, with interest, and dated the 16th day of ~anuar9, 1805. An assignment in writing from Newton to the plaintiff, dated April 3, 1805, was endorsed on the note. The declaration was in the usual form~ on the note. Plea, non assurnp.~it.

THIS was an action of covenant, brought on ati agreement, by which the defendant, on the 1st of August, 1807, in consideration of 500 dollars, received in full for 50 acres of land, covenanted and agreed with the plaintiff, by a good warranty deed, on or before the 1st of August, then next, to convey the 50 acres of land, or in lieu thereof, to pay the plaintiff 800 dollars, &c. At the Cayuga circuit, a verdict was taken for the plaintiff, by consent, for 913 dollars and 16…

'THIS was an action of assumpsit, brought. against the defendant, as late governor of the state of New-York. . , . 1-1-1 The declaration contained a count tor money had and received, &c. and the usual money counts. Plea, non ÜSSUmpSlt. arise in and about administering the government of the state.

IN ERROR, from the mayor’s court of the city it jJluason• Dakin brought an action of assumpsit against Frary, in the court below, for work and labour, &c. Frary pleaded, 1. Non assumpsit; 2.

THIS was an action of ejectment. The cause was tried at the Duchess circuit, in August, 1809, before Mr. Justice Spencer.

THIS was an action of assumpsit. The declaration contained five counts: I Indebitatuts assumpsit, for 2,000 dollars, for a farm sold, &c. 2. Quantum valebat thereon; 3. Money had and received; 4. For that whereas the defendant, on the 15th March, 1808, &c, in consideradon that the plaintiff had before that time sold and conveyed to the defendant a certain farm, &c. then and there undertook to pay, &c. 5.

THIS case came before the court, on a certiorari, directed to two justices of the peace.

IN error, on certiorari, from a justice's court. Gra~j was sued by Goodrich, in the court below, for a ~deceit or fraud in the exchange of horses. The defendant pleaded the general issue; and claimed damages on his side. There was a trial by jury. There was some slight evidence tending to show a scienter. Gray, on beipg asked if the horse xvas sound, answered, be xvas, for aught he knexv: and he boasted, afterwards, that he had made a great bargain.

TN error, on certiorari, from a justice’s court, •^■tistin brought qn action against Capron, in the court below, to recover back a fine, which had been imposed , . on the plaintiff, Austin, by a regimental court martial, of which the defendant below (Capron) was president, for a pretended delinquency in not appearing át a military parade.

THIS was an action of assumpsit. The declaration stated, that Peter Beecker, on the 22d June, 1802, made his will, and devised to~ his son, the defendant, all his real estate in Greenwich, in Washington county, except the ground on which the baptist meeting-house stood, to hold the same in fee; subject, nevertheless, to the charges, legacies and encumbrances, mentioned, &c. That by the same will he bequeathed to his daughter, the plaintiff, 90 dollars, to be paid to her in…

THIS was an action of trespass quare clausum fregit. . r d The locus in quo was a piece or land in the village of Netvburgh, adjoining the bank of the Hudson river, bounded on the north by a store and dock, west by Water-street, south by First-street, and east by the river. plea was the general issue, and the defendant gave x ° notice, that he would give in evidence at the trial, that , the locus tn quo was a common highway, and that the plaintiff obstructed it, and the…

IN ERROR, from the court of common pleas of Rena~elaer county. llfoulton brought an action of assault and battery, against collier, in the court below. The declaration cornrnenced with, for that whereas, &c. The defendant pleaded not guilty; and gave notice that he should give in evidence, son assault dernesne.

THIS was an action of assumpsit, tried at the Oneida circuit, in June, 1809. before his honour Mr. Justice Yates.

THIS was an action of debt, on a judgment of this court, ot October, term, 1798, ror 1,000 dollars Ot debt, and 14 dollars and 96 cents costs. The defendant pleaded three pleas : 1. A discharge, an insolVent debtor, under the insolvent act, on the 5 1 23d of July, 1804; 2.

THIS was an action of debt on a judgment in the superior court of the state of Connecticut, of February term, 1308, for 100 dollars damages, and 50 dollars and 96 cents costs. The defendant pleaded ; 1. Mil debet; 2.

<p>Where the plaintifl'takes au assignment o~ the bait-bond, and brings ass action against the principar, and the bait to the arrest, and obtains a judgment, and issues an execution, he cannot after-wards file corn. mon bail in the original suit, and proceed tojudg.. ment therein; but is concluded by his eleetious to proceed oss the bail-bond.</p>

THIS was an action for a iThel. The declaration cons tamed three counts. The second count was abandoned at the trial. The first count charged the defendant with publishing, On the ~6th March, 1807, in a newspaper called Repu6lkan Grisis~, at Tray, in the county of Rensselaer, a false, scandakrns, and malicious libel, of and concerning the plaintiff, which (omitting the innuendoes and averment~) wa~ as follows Genet is on the alert in Ren~elaer.

THIS was an action of assumpsit. The declaration contained five counts.

THIS was an action of debt, tried at the Washington^ circuit, June, 1810, before Mr. Justice Van Ness.

<p>THIS was an action of trespass on the case, against the late sheriff of Saratoga county, for the escape of one Philip Rykert, who was in custody of the defendant, on mesne process, at the suit of the plaintiffs. The cause was tried at the Saratoga circuit, in May, 1810, before Mr. Justice Van Ness.</p> <p>In February, 1807, Daniel Bull, then sheriff of Sara-toga county, arrested Rykert, on a capias ad respondendum, at the suit of the plaintiffs, returnable in May term, 1807. Rykert was detained in custody by Bull, by virtue of the writ, until March, 1807, when Bull was removed from the office of sheriff, and Porter, the defendant, appointed in his stead. The writ was returned “ cepi corpus in custodia,” by Bull; and Rykert was, duly assigned, with other prisoners, by Bull to Porter. "The assignment was made about the 1st of March, 1807. 0 e e About a fortnight after receiving the assignment of Ry-the defendant, as sheriff of Saratoga, took a bail-bond in his own name, from Rykert and another, which he deemed sufficient security, and let Rykert go at large, without the knowledge or consent of the plaintiffs, in that action, and without giving them any notice thereof. ;</p> <p>The plaintiffs, in that action, proceeded against Rykert, and recovered a judgment against him in August term, 1808, for 354 dollars and 68 cents, damages; upon which a test, ca. sa. was issued, returnable in August term, 1808; and was returned “ non est," by Bull, who was then sheriff of the county; having been reappointed to that office, on the removal of the defendant.</p> <p>It was proved, that Rykert was insolvent.</p> <p>The jury, by the direction of the judge, found a verdict for the plaintiffs, for six cents damages, and six cents costs, with leave for the plaintiffs to move for a new trial, on the above facts.</p> <p>The cause was submitted to the court, without argu.ment.</p>

THIS was an action of replevin, brought against the defendant, for unlawfully taking and detaining a heifer, belonging to the plaintiff. The defendant pleaded non cep^ and that the heifer was his property, &c. The cause was tried at the Saratoga circuit, before Mr., Justice Van Ness. At the trial, the plaintiff proved a regular bill of sale, and delivery of the heifer and other cattle, from. Joseph Pangburn, to the plaintiff, for the consideration of 100 dollars.

THIS was an action on the case. The declaration ■ - . 1 stated that the plaintiff, on the 23d Time, 1808, obtained ' rT . , „ . . , _ . a patent Irom the United States, giving him, and his assigns, &c. for 14 years, the exclusive right of making and- vending a certain improvement, for rectifying spirjts and that the defendant, well knowing, &c. did, on 1 _ 07 7 the 14th of August, 1808, without authority, use the . . said improvement, and rectify spirits, &c. to the damage…

THIS was an action of trespass, assault, and battery, and for false imprisonment. Held: &c. Be it remembered, that in the above action, the parties appeared in court, and •'before plea pleaded, the defendant and Pierpoint Edwards •acknowledged themselves bound to the plaintiff, in a recognisance of 500 dollars, as special bail for the defendant, conditioned that the said defendant should abide ■the final judgment that…

<p>a died seised of ¡eavmgawilíoxv an oniy son, his daughter. The widow entered into possession of the land; and the daughter having married B., the widow gave permission to B. and his wife, to take possession, and occupy a part of the land; and B. continued in possession, claiming to hold in right of his wife, hi an action of ejectment, brought by the heir at law, against B., it was held, that the legal intendment was, that the widow entered as guardian, in socage, to her infant son; au<l that the defendant, having entered by permission of the guardian, and under the title of tilt; heir at law, could not set up a title in a third person, in contradiction to the title under which he so entered.</p>

THIS was an action of debt. The plaintiff declared ~an a bond, dated the 7th of August, 1809, in the penalty of 200 dollars, conthtioned to indemnify the plaintiff against all costs and damages, that shall or may arise against him, on account of his not taking N. Palmer to prison, on account and by- virtue of a Ca. sa. which the plaintiff had in his hands, issued out of the supreme court, in favour of Reuben Leonard and Rufus Leonard; and the defendants bound themselves to…

THIS was an action of trespass quare clausum fregit, ike. 'The declaration stated, Í. Held: &c. he, the plaintiff, by the judgment of the court, recovered against the intestate 20 dollars and 3 cents, and that, on the 8th of August, in 7 7 . ^ 7 the life of the intestate, he obtained execution upon the .... .. said judgment, and, delivered it to a constable, who levied on the said chattels, in the life-time of the…

THIS was an action of debt, brought against the defendant, as sheriff of Oneida county, for the escape of Abel Brigham, charged in execution at the suit of the plaintiff. The declaration stated the judgment, and a ca. sa. issued thereon for 1,007 dollars and 86 cents, debt, and 14 dollars and 44- cents, costs. The escape was alleged to have been on the 16th February, 1807.

<p>. THIS was an action of debt, brought by the plaintiff, as sheriff of the county of Oneida, against the defendants, on a bond given by them to the plaintiff, dated the 22d of July, 1808, as security for the gaol liberties, grant-g the plaintiff to Abel Brigham, one of the defendantg who was a prisoner in gaol, on a ca. sa., at the suit 1 ° of John Steward, jun. for 521 dollars. The defendants pleaded non est factum, with notice of special matter- to be given in evidence at the trial.</p> <p>The cause was tried at the Oneida circuit, the 18th _ 3 June, 1810, before Mr. Justice Spencer. */ . - , - . 1 . . At the trial, the plaintiff, after proving the execution of the bond, offered in evidence the nisi prius record and verdict, in the suit of John Steward, jun. against the plaintiff, for the escape of Brigham, and which was tr'ied the same day. (See ante, p. 165.)</p> <p>, , . , , The defendants objected to the mst prius record and verdict, as evidence; but they were admitted by the judge as conclusive against the defendants, unless he could show that the verdict had been obtained by fraud an(j cojjusion between Kip and Steward. 1</p> <p>e The plaintiff proved, that immediately after the suit 1 1 . ’ / Was commenced against him by Steward, he gave notice thereof to the defendants, and that that suit was regularly defended by the plaintiff, aided by the active cooperation of the defendants.</p> <p>The plaintiff claimed the amount of the original judgment, interest, costs and poundage, in the case of Steward against Brigham, and also the costs of the suit of Steward v. Kip, and of Kip at the suit of Steward, amounting to 390 dollars and 5 cents, which were objected to by the defendants, but allowed by the judge.</p> <p>The plaintiff then proved the escape of Brigham, in the manner stated in the suit of Stezvard v. Kip, and gave in evidence the minutes of the court of common pleas, establishing the gaol-liberties. Two surveyors were also produced, who testified, that they attempted a survey of the liberties of the gaol, according to the courses and distances contained in the minutes of the court of common pleas, but found them so inaccurate, that it was impossible to run the lines without passing over private enclosures, &c.</p> <p>The jury, under the direction of the judge, found a verdict for the plaintiff for 914 dollars and 86 cents.</p> <p>A motion was made to set aside the verdict and for a new trial; and the same was submitted to the court without argument, on a case, containing the above facts.</p>

THIS was an action of covenant, brought on the co-. ..■venant against encumbrances, and on the covenant of power to sell, contained in a deed from the defendant „ to the plaintiff. Flea, non est factum. The cause was tried at the Washington circuit, the 13th of June, 1810, before Mr. Justice Van Ness. The plaintiff produced a mortgage, executed prior tá the deed from the defendant to him, from the defendant to William Porter, which covéred the land conveyed by the deed.

THIS was an action of debt, brought against the defendant, as sheriff of Oneida county, for the escape of Oliver Babcock, a prisoner in his custody on an execution in favour of the plaintiff. The cause was tried at the Oneida circuit, the 11th June, 1810, before Mr. Justice ’ J J Spencer. . .

THIS was an action brought by the plaintiff against ... the defendants, on a bond given as security for the liberties of the gaol, granted to’ Babcock, who' was in custody on execution, at the suit of Ballou, the plaintiff in the preceding suit. The cause was tried at the Oneida circuit, the 11th June, 1810, before IVTr. Justice Spencer.

<p>ÍN error, on certiorari from a justice’s court. Pruyn brought an action against Hearsey, before the justice, as a toll-gatherer o£ the bridge of Schenectady, for demanding and taking of the plaintiff toll, over and above what was due, at three several times, to wit, the 13th June, 1309, 6 1-4 cents for one load, the 14th June. cents for three loads, and 15th June, 6 1-4 cents for one load, above the legal toll. 18 3-4</p> <p>The defendant pleaded the general issue, with notice, and there was a trial by jury.</p> <p>It was proved that Pruyn, in June, 1809, paid Hearsey 12 l-2 cents for passing the bridge with a load of plank; that he called on the witness, in presence of Hearsey, to take notice that the toll was overcharged, and that Pruyn owned a mill in the fourth ward of Schenectady.- It was also proved that the plaintiff had carried from his mill, across the bridge, several loads of plank in June, and that the defendant admitted, that for all the loads of plank, which Pruyn had carried across the bridge, he had received 12 1-2 cents toll for each load. It was also proved, that six cents only was exacted from another person, returning with a full load from market.</p> <p>The plaintiff then gave in evidence, though it was objected to, an act of the legislature printed In a newspaper, under which was the signature of _D. Tomilson, treasurer of the Mohawk Bridge Company.</p> <p>The defendant moved for a nonsuit, which was refused by the justice.. The defendant then gave in evidence the exemplifications of several acts relative to the subject, among which was the act read by the plaintiff.</p> <p>It was also proved that the defendant was duly appointed collector of the tolls by the treasurer, pursuant to a resolution of the company.</p> <p>The jury found a verdict for the plaintiff below for 3,1 cents, on which the justice gave judgment. •</p> <p>The'plaintiff in error insisted that the judgment below ought to be reversed.</p> <p>1. Because the defendant in error wns not exempted from paying toll.</p> <p>2. That the right of the corporation could not be tried in an action against the collector of tolls.</p> <p>. 3. That the action could not be maintained, without an express notice to the collector, not to pay over the tolls received by him.</p>

IN error, on certiorari, from a justice’s court. This Was also a suit in the court below, for taking more toll for passing the bridge at Schenectady than the act allows. The only difference between this case and that of Hearsey v. Pruyn, is, that the plaintiff below, Boyd, alleged, that he was returning from market, where he had been with a load from the city of Schenectady, of which he is an inhabitant; and that 12 1-2 cents toll were exacted from him.

THIS was an action of ejectment for- lands in Kinder hook. The cause was tried at the Columpia circuit, in December, 1809, before the Chief Justice.

THIS was an action on the case for an escape. The eause was tried the 18th October, 1809, before Mr. Justice Spencer. It was proved at the trial, that a capias ad respondendum, returnable the second Monday of November, 1806, was delivered to the defendant, against one Abel Turner, Sylvester Russell and John Martin, at the suit of the plaintiff. Abel Turner alone was arrested and held in custody by the sheriff, and the other two defendants were returned not found.

THIS was an action of ejectment, tried at the Washington circuit, in June, 1810, before Mr. Justice Van Ness. Held: that the defendant should surrender up the premises to Colden, one of the lessors and be discharged and acquitted from all damages, costs and charges to which he might be subject, in consequence of the suit, and that the said lessor should pay the defendant thirty dollars, and that in pursuance of that agreement, the defendant did,…

THIS was an action of debt, on a bond, dated 20th; October, 1808, for 2,174 dollars, conditioned to pay , ,, _ . 1,08/ dollars, on the 1st November, 1811, with the interest thereon, annually. The defendant pleaded, 1. Non est factum. 2.

IN error, on certiorari, from a justice’s court. Richly sued Blanchard in the court below, in an action of assumpsit, tor work. The defendant below pleaded a former trial, for the same cause of action, before the same justice. The jus_ 7 •> J tice, in his return, stated, that knowing the facts of the former trial, and that he had nonsuited the plaintiff, he declared the nonsuit to be no bar.

IN error, on certiorari, from a justice’s court. Leonard brought an action of assumpsit against Hen* low, before a justice of the peace.

THE defendant was convicted, at an oyer and teriner held in Oneida county, in June last, of a cheat.The indictment stated, that one Rufus Brown and Ira Dickinson had obtained a judgment before one of the ° ° .justices of the peace, in and for the county of Oneida, • n 7 , , , , . , _ , ... „ against Babcock, and that the said Babcock, being an evil-disposed person, on the 4th of August, 1807, at, &c. falsely, fraudulently, and deceitfully, and by false arts, colours and…

IN ERROR, from the court of common pleas of Eneida county. it as ton ¡brought 3.11 «tction of assumpsit íigctinst Hoto* ard, in the court below.

THIS was an action of debt, on a judgment obtained in the state of Vermont. The defendant R. Stoddard, jun. was arrested on a cap. ad. resp. and the other' defendant returned not found. The defendant pleaded nil debet, with notice that he should give in evidence, at the trial, that he was an infant at the time the note was made, on which the judgment was obtained. The cause was tried at the Abany circuit, April, 1810, before Mr. Justice Thompson.

THIS was an action of covenant, tried at the Washington circuit, loth June, 1810, before Mr. Justice Van Ness. The plaintiff declared on a lease, dated 6th January, 1792, by which the defendant demised to the plaintiff a lot of land, for the term of eight years from November 6, 1791.

<p>THIS was an action of ejectment, for land in the Hardenbergh patent, in the county of Ulster.</p> <p>. , , denbergh f J Palts> re_ ceaSed, Cj 1 ’ Qn the among tl . 111 que j SOU 1.6 A patent was issued the 23d April, 1708, to Jqhannis Har denbergh and others. Leonard Lezvis, one of -the patentees, died seised of one equal and undivided r * eighth part of the lands patented, in 1720, having by his will, dated the 27th February, 1723, devised the-premises to his wife, for life, with remainder in fee to his eleven children named in the will. The eldest son was named Thomas, and another was named Leonard. the 4th May, 1742, the widow released to her child- » ren all her interest m the estate ol her husband. On the 15th November, 1749, a partition was made of the Har-. nt, and the proprietors of the other seven d to the children of Leonard Lezvis, delots, equal to one eighth of the whole. Member, 1749, a subdivision was made devisees of Lezvis, by which the premises me the separate estate of the testator’s ese partitions were confirmed by an act lure, passed the 29th March, 1790. of the leg</p> <p>Leonard, the son of the patentee, was born in the 7 county of Duchess, and went to reside in St. Johns, in the island of St. Thomas, a Danish island, where he married a Danish subject, by whom he had issue two. daughters, named Gersie Maria, and Anne Elizabeth.</p> <p>He died there, in the autumn of the year 1750. Gersie 7 v ji^aria married a Danish subject, but died in 1767, without issue, and before she was of a full age. Anne Elizabeth married Hans Petrie Bey, a Danish subject, ®f St. Thomas, by whom she had a daughter, born m 1773 or 1774. She died in 1774, soon after the birth of her daughter, who also died in 1774 or 1775.</p> <p>Thomas, the heir at law of the patentee, died in 1766, and his eldest son died in his life-time, leaving a son named Thomas, who, on the 9th March, 1789, «nade a will, and died in August, 1789, leaving five children, lessors of the plaintiff. His executors, on the 9th May, 1792, as acting under a power contained in the will, conveyed, by deed, the premises in ■ question to Lucas Elmendorf, one of the lessors.</p> <p>It was admitted, that the premises are part of a large tract of wild and uncultivated land, and that the defendants have recently taken possession.</p> <p>The defendants contended, that by the death of Anne Elizabeth, daughter of Leonard., in 1774, the estate escheated'.</p> <p>The case was submitted to the court, without argument.</p>

THIS was an action of ejectnlent, and was tried at the Saratoga circuit, in 1810, before Mr. Justice Van Ncs~. The plaintiff claimed title to lot No. 1. of the subdi-? . . - ; - . , .... c . vision, or lot No. 3. m the division or great lot No. 10. in the 21st allotment of the patent of Kayaderosseras, containing 155 acres, situate in the town of Providence, in the county of Saratoga.

■ THIS was an action of ejectment for a farm in Whites-town. The cause was tried at the Oneida circuit, the 5th 7 °fune, 1809, before Mr. Justice Tates. d 1 ' _ At the trial, the plaintiff gave in evidence the counterpart of a lease, dated the 3d September, 1790, from Philip Schuyler, of Albany, to the defendant, for the premises in question, for the lives of the defendant, his wife, and Sa- * ? 7 7 rnuel Shaw, respectively. The farm contained 133 acres , . and a. half.

THIS xvas an ejectment for lands in Walton,• in the-county of Delaware. The cause was tried at the Delaware circuit, in September, 1809, before Mr. Justice Thompson. The principal facts proved at the trial were the same as stated in the same cause, bn a former motion for a new trial. (See 4 Johns.

THIS was an action of ejectment, to recover possession of lot No. 8. in Falius, in the county of Onondaga. The cause was tried before Mr. Justice Thompson, at the Onondaga circuit, the 21st June, 1809. Patrick O'Donaghy was in possession of the premises in 1804, and continued in possession until the time of his death, in the autumn of 1806.

-THIS was an action of covenant. The declaration 3tated, that the testator, on 22d Februar9, 1802, at Chenango, &c. by his certain writing obligatory, sealed, See. pro* mised and agreed with plaintiff, in consideration of 400 dollars to him paid, to convey to the plaintiff, on or before the 1st day of December then next, one certain lot of land ... in Nanticoke, the same to be appraised by G. Storer and Elijah Higbe; and if said lot of land should be appraised over the sum…

THIS was an action of debt brought on the statute “ to ... , ,, , _ prevent and punish champerty and maintenance, (Laws, vol. 1. sess. 24. c. 87. p. 345.) against the defendant, for purchasing, on the 19th December, 1806, of Nathaniel Ogden, lot No. 78. in the township of Manlius, in the county of Onondaga, the said Ogden pretending title thereto, but being disseised thereof at the time of the purchase. Plea nil debet.

THIS was an action of trover, brought to recover the value of 95 barrels of potashes. The cause was tried at the Onondaga circuit, the 7th June, 1810, before the Chief Justice. The defendant was, in 1808, and still is, the collector of the port of Oswego, on the south side of lake Ontario.

<p>THIS was an action of covenant. The dec1aratiot~ stated that by a deed dated the 3d of March 1784 and executed by the defendant, he, in consideration of 50/. did give, grant, bargain and sell to the plaintiff, in fee, a tract of land in Vermont, and engaged to warrant and defend the same against all claims or demands of any person claiming under him, or any person whatsoever; and the plaintiff averred that the defendant, at the time, was not seised in fee, and that he has not warranted and defended the land as aforesaid, and that the defendant, at the time, had not any estate in the land, and so the defendant has broken his covenant, &c. The defendant pleaded, 1. That he hath not broken his covenant; 2. That the deed was made in reference to the laws of Vermont, and that the cause of action arose there, and that all suits for breach of covenants, in deeds, must be brought within 10 years ; and that 10 years had elapsed before suit brought, and this he was ready to verify, &c. There was a general demurrer to the second plea, and joinder.</p>

<p>THIS 'was an action on the case for a libel, The cause was tried before Mr. Justice Van Ness, at the Rensselaer circuit, in June, 1810.</p> <p>The libel was proved to have been published in the Troy Gazette, the 3d October, 1809; the paper was printed by John C. Wright, who was the editor.</p> <p>It was proved that the defendant, after the publication of . . ' 1 the libel m question, admitted that he was one of the pro- . Tir • . 1 , ■ „ . prietors. Wright and two others were owners or the press an¿ establishment, and assigned the same to the defendant and Thomas Hillhouse, as security for their endorsement on. ceriajn notes; but they did not receive- the profits of the J r paper, nor had they any agency in its publication; nor were-' they consulted about the articles inserted, the same being . left to the exclusive management of Wright. By the agree? naent between Wright and the defendant and Hillhouse, if die notes were not paid, the press and establishment were ¡-q be the absolute property of the defendant and Hillhouse. 1 J Wright, with their assent, afterwards sold the press, &c. to one Lewis, and discharged the defendant and Hillhouse from their responsibility on the notes,. During the time the defendant and Hillhouse held the assignment as security, they did not take possession of the press, nor advance any money to pay the workmen; but the same was conducted solely at the expense of Wright and the original owners.</p> <p>The judge told the jury, that if they believed the witnesses, as to the assignment and the nature of the interest of the defendant, he would be entitled to a verdict; on which the plaintiff submitted to a nonsuit, with liberty to ínove the court to set it aside, and grant a new trial.</p>

THIS was an action for a libel, published in a gakette, called “ The Republican CrisisThe cause was tried at the Washington circuit, in June», 1810, before Mr. Justice ■Van Ness. The libel set forth in the declaration was as follows 5 “ On Friday last the legislature appointed a new treasurer,.' in the room of Mr. L. who has filled the office for several years, and performed the duties with perfect fidelity and ability.

<p>ín an action oí trespass guare clausum fregiti brought before a justice’s court, the defendant interposed a plea of title, and the same was removed into the court of common pleas, and. from thence into this court; and it was held, that under the 7lU section of the act, 51st sess* c. 204. the defendant, at the trial,might show a title in himself, or a title in a aposse^on^out “L!'where" <lef!ni¡¡mt m such action pro* Ted> tllat,he waa and linfl npf»n in and had been in possession of the locus in quo for more than six years; and the plaintiff never had been in pos.session; this was held sufficient evidence to entitle the defendant to a verdict.</p>

<p>The estate of L'the mdcstlte widow ofd the i-ccorai her dower out of the land mortgaged; and the tenant by " mesne" con-the^husband™'' cannotdcnytim seisin of the husband; nor can he set up asubsistingtitle; there having been no foveclosure or entry by the mortgagee. A purchase of the mortgage from the mortgagee is, ffl, effect, a discharge of the mortgage, in favour of the title under the mortgagor.</p>

THIS was an action of assumpsit. The plaintiff dedared on a promissory note made by the defendant, the 1st October, 1809, for the sum of 2,483 dollars and 2(5 cents, payable 60 days after date. The defendant pleaded, 1. Non assumpsit; 2.

THIS was an action of tr~espass quare clausumfre~'it, for entering the plaintiff's close in Hancock, in the coun- ty of Delaware, and cutting and carrying away timber. The cause was tried at the Delaware c~ircuiC, the 12th of rune, 1810, before Mr. Justice Th~rnpson.

so~veyor.ge~era~. THIS was an action of ejectment, brought to recover part of lot No. 16. in~the town of jun,ius, in Seneca county, and was tried at the Seneca circuit in 7une, 1810.

<p>A deposition taken before the trustees appointed under the act for relief against absconding and absent debtors, ^idencebefore referees, nominated under the same act, after the death of the witness, though taken by the referees, in the absence of the ereditors, or ex parte, the trostees being conagrnit?ofS both parties.</p> <p>The courtmay inquire into the merits of the controversy, on the report of the referees; but it will require a strong case to induce them to set aside the report.</p>

AT the last August term, on the application of the defendant, one of the demises in the plaintiff’s declaration was ordered to be struck out. No notice or copy of the rule was served on the plaintiff; nor was any new declaration delivered by him.; but the cause was noticed for trial at the last Orange circuit, under the title according to ;the amendment directed by the court. At the trial, the plaintiff was nonsuited, for not confessing lease, entry vc&tuster.

THIS was an action of trover, for machinery, tools, wrought and unwrought materials, belonging to the plaintiff, a blockmaker. The cause was tried at the New-York Sittings, the 11th of December, 1809, before Mr. Justice Yates. In 1805, the plaintiff sent the tools ánd machinery and materials with an overseer, to the state-prison, to employ the prisoners to work in making blocks, pursuant to an agreement made between the plaintiff and the inspectors of the prison.

THIS was an action of assumpsit. The capias cid respondendum was returnable the 10th of August, 1807. The declaration contained seven counts. The first count was on a promissory note, dated .the 14th February, 1806, for 164 dollars and 44 cents, payable six months after date. The other counts were for goods sold, &c., the usual money counts, and an insimul computasseni. The defendant pleaded non assumpsit, and payment, with notice of a set-off.

THIS was, an action of assumpsit, brought to recover the price of certain articles of ship chandlery, supplied by the plaintiffs, as ship chandlers, in May, 1806, for the ship Eleanor. The cause was tried before Mr. Justice Yates, at the New-York sittings, in December, 1809. The goods were furnished by the plaintiffs for the use of the ship, between the 16th and 27th May, 1806, and were delivered to Benjamin Lord, the master and one of the defendants.

THIS was an action on an open policy of insurance on cargo, fr,m New-York to Mar1~nique. The policy was dated the 25th of Jifay, 1807. The plaintiff abandoned on the 5th October, 1807, for a total loss, by perils of the sea. The declaration, besides a count on the p0-licy for a total loss, contained the usual moiiey counts. The defendants pleaded the general issue, and paid into court 1,400 dollars, under the common rule, upon the whole declaration.

THE prisoner was indicted and tried, at the last oyer and terminer in Ulster county, for bigamy. The marriage of the defendant with A~ S. on th~ 1st of August last was duly proved. It was also proved that a short time afterwards, a person calling h~rself Elizabeth Hump/zrey~ and the wife of the prisoner, peared before a justice of the peace, and charged him with the offe~ice of bigamy.

THIS was a suit on a recognisance of bail, taken hi a cause, in the court of common pleas of Rensselaer county. A motion was made to set aside the proceedings, on the ground, that the suit ought to have been brought in the court of common pleas, where the original suit was carried on. (6 Term Rep. 365.) The bail had removed out of the county of Rensselaer into another county.

Roberts. THE defendant in this cause was taken on a ca. sa. by the sheriff of Columbia, at the suit of Alexander Pope, and committed to the custody of the plaintiff, as gaoler. The plaintiff took a bond, payable in ten days, and a war- rant of attorney to confess judgment thereon, for the amount of the ca. sa. together with 10 dollars, for addi- tional costs and charges of the plaintiff. At the end of the ten days, judgment was confessed and entered up on the bond.

<p>a note to pay-'is :?ot a note. in the statute, and thc cousideration, must be stated and shown. But the words, “ value snoífa'note, ’is {¡Acong^ten"^ east 0,1 the defendant, the burden of proving that consUleration.n° But if the plaintiff, in his declaration on suelva note, instead of stating generally that it was given for value received,-sets forth specially -in whatthe value received consisted, he is bound to prove the particular value according to the averment, and the general acknowledgment, of value in the note is not sufficient to support the declaration.</p>

THIS was an action on the ca~e,~to recover the. ~ric~ -of a negro boy sold by the plaintiff to: the defendant~ The cause was tried at the New-York sittings, in May, 1808, before Mr. Justice Van Ness.

THIS was an action of debt on a bond executed by-the father of the defendants, in his life-time, as one of the sureties of Christopher Tappen, one of the loan-officers Qf Ulster county, under the act of the 18th April, J r 1786. (1 Greenleaf's edit, of Laws, 240. 9th sess. c. 40.) . . . . _ The bond was to the plaintiffs, in the penal sum or 7,000 pounds, and in the form prescribed by the act. The defondants pleaded, 1. Non est factum ; 2.

IN error, on certiorari, from a justice’s court. The return stated, that, on the 25th of February, 2809, in Columbia county, Hauer sued Maigley by summons.

<p>A quantity of chased'^t a&Iarican 'mí chants, and ship. pen on board of an American vessel for Aew York, and an tife^hidef^was ^ nish government, and the vessel was ready for sea, but was prevented sailing by a British squadron, which afterwards captured the place, and was not permitted to sail until she had paid an export duty on the cargo to the officers of the British government. On the arrival of the vessel at New-York, the hides were sold to American merchants in JVew-York, who shipped them in another American vessel to Amsterdam, accompanied with a certificate of origin from the French consul in JVe*v~ York, declaring that u they were purchased and exported from Montevideo, prior to the capture of that place by the Britishv/hich certificate was a usual and customary document on board American vessels bound to France or Holland, arid rendered necessary by the decrees of France and Holland. The vessel was captured by the British, and condemned as enemy’s property, or otherwise subject to forfeiture, on the ground of a continuity of voyage from an enemy’s colony to the mother country of an enemy of Great Britain. The hides were purchased the 24th dime at 10 cents per pound, and transhipped about the 7th July, and were invoiced at 12 cents per pound, being the value thereof at the time. In an action on an open policy of instirance on the hides, it was held, that the certificate of origin being a customary document for* such a voyage, and substantially true, and put on board, bonafide, by the insured, there was uo breach of the warranty of American property; and that the insured were entitled to recover for a total loss. The insured was not bound to disclose to the insurer that such a paper was on board ; it being a paper in the usual course of trade ,* and it is always open to inquiry how-far a paper, though intentionally false, was material to the risk. The amount of loss in this case, was held to be the prime cost of the hides, or 10 cents per pound and the charges thereon» It seems, that in estimating g total loss on an open policy of insurance, the value of the goods at the outset or commencement of the risk, with the usual charges, is what the insurer ought to pay; and that the prime cost is generally the safest and best rule of ascertaining such value ; -Ttpecially where the goods are purchased for exportation»</p>

IN ERROR, on certiorari, from `a justice's courts The action in the court below was brought by the defend~ ants in error, being an incorporated religious society, against the plaintiff in error, to recover the amount of his subscription to certain articles of agreement, made by the members of the society, for raising a certain an~. nual sum for the support of a minister of the gospe1~, during the period of six years, from the 20th December, 1802. ` The plaintiffs below…

THIS was an action of covenant. The plaintiff de.' dared, on a breach of the several covenants contained in. a deed, that the grantor was well ceised, &c. for the quiet enjoyment of the grantee; that the premises were free from encumbrances, and that thedefendant had good right and title to sell and convey, &c. The cause was tried at the Duchess circuit, in Sep.~ teinber, 1810, before the Chief Justice.

THIS was an action of slander. The declaration contained several counts. The first count, which was 7 the only one objected to, stated, that the plaintiff is a . L justice of the peace, &c« and that the defendant, to in- , . The defendant pleaded the general issue; and there was a general verdict for the plaintiff for 179 dollars.

<p>Where a mac was endorsed lör the accommodatioji of the maker, and without consideration, it was held that the dfl(lOrsOr was ii-ab!e for the a~ mount,after due notice (If non. payment, tho' the plaintiff knew at the time he took the note that the endorser had received no consideration hut if there is fraud in the case, and that known to the plaintiff, the endorsor mayshow it in defence; and it seems, that if the plaintiff had purchased the note at a redmsed pvice, he could not recover of such endorsor moi's than he paid for the note</p>

THIS was an action on an open policy of insurance, Sated November 19, 1807, on the American ship Calliope, from New-Tork to Bordeaux.

IN ERROR, from the court of common picas of Columbia county. The plaintiff brought an action of assault and battery against the defendant in the court below. The defendant pleaded not guilty. At the trial, it was admitted by the counsel for the plaintiff, in opening the cause, that the plaintiff was under the age of 21 years, and resided out of the county. The defendant moved for a nonsuit, unless a guardian was appointed for the plaintiff.

THIS was an action of assumpsit, to recover 451 dollars and 49 cents, being the amount of taxed bills of costs of the plaintiff, who was attorney of the insolvent debtors. t . Richards and Coit, the insolvents, in January and Fe-7 • J J bruary, 1808, put into the hands of the plaintiff, as their J r . attorney, two bills of exchange, and other demands, on which the plaintiff brought six suits in the supreme court.

time to time, and at all times thereafter, peaceably and THIS was an action of covenant. Held: &c. the said Pretnises with the appurtenances, without any let, &c. but that, on the contrary, the defendant, on the 10th of ’ _ J ’ ’ October, 1808, disturbed and hindered the plaintiff in the . „ , . , , . . , use, occupation, &c. oí the premises, and the defendant did put and cause to be put into possession of the premises divers…

IN ERROR, on certiorari, from a justice’s court. Heyden sue.d Dunham before the justice, by summons returnable the 17th February, 1810.

THIS was an action of assumpsit, brought against the defendant, as the endt¡rsor of a promissory note made by James Vidalot. A verdict was taken, by consent, in favour of the plaintiffs, for 3,532 dollars and 8 cents, subject to the opinion of the court on the following case. The note in question was delivered by Vidalot to the plaintiffs, to secure the premium of insurance upon a certain vessel, upon which the plaintiffs were insurers.

THIS was an action on a policy of insurance, dated 39th of September, 1807, on 45 bales of sarsaparilla, specified in the margin of the policy, on board of the ship ° r J . 1 Paragon, “ at and from Nezv-Tork to Amsterdam, upon . sea-risk only, including sea-risk during capture or detention, at a premium of 5 per cent.

THIS was an action on the case. The declaration stated that the defendants, on the 30th of December, 1808, were the owners of the ship Columbia^ of which r . . . ' . - - ' « , Levi Goodrich was master, and also the tactor and agent of the defendants, by them generally authorized se^ the ship to any person in the same manner as they themselves might and could make sale, &c. That J ° 7 the plaintiff bargained at Charleston with Goodrich, being such agent, &c. for the purchase…

THIS was an action of ejectment for land in Duchess' county. William Holloway, under whom the lessors of the plaintiff claimed, as heirs at law, died about the year 1794, leaving four sons, William, Joseph, John and Justus->and six daughters, Hannah, Sarah, Margaret, Alice ^ and Mary. Since the decease of the ancestor, J J Hannah, one of the daughters died, leaving three sons and two daughters, her heirs; and the ancestor’s daughter Mary also died leaving other two children.

THIS was an action of assumpsit, brought by the plaintiff, as endorsee, against the defendant, as first endorsor of a promissory note. The declaration contained 1 J I two counts, on two notes; the one dated the 3d of March, 1808, payable sixty days after date, without defalcation or discount, at, &c. and endorsed the same day by the payee to the plaintiff. The other was on a like note, payable in 30 days.

THIS was an action of debt, brought by the plaintiff, . . . as a common informer, on the second section of the “ Act for preventing usury.

<p>A having made jJlw-Tor*íeíeáLkSsimvivhg° children and residuary legatees. JB. took out administration with the will annexed, and died, leaving goods; Sec. of JI. unadmi. nistered, and particularly a large debt due from D. to the estate of Ji. in England. It was co, Tenanted and agreed between 25., administrator of Ji., and C., \vho resided in England, that ■23. should release to C. all right to the goods of Ji. in England, and empower C. to take out administration in England on the goods, &c. of A, and to indemnify C. from all legacies, actions Sec. in consequence of taking out such administration in England; and 0. covenanted to account to A. for all moneys she sliould receive of D., and 23. covenanted, that in case C. could not obtain administration in England, or in case, after obtaining such administration, D. should refuse to account for all moneys due from him to the estate of A., and pay the same within one month after notice and request to him from C., that 23., as administrator of Ji., would pay and satisfy to C. all her full share of the real and personal estate of A-, her father,-Sec. C obtained administration in England of the goods, &c. of A., and demanded payment of the debt due from 22., who being before and at that time insolvent, and unable to pay, offered to pay C. the amount of the principal of the debt due to the estate of A., exclusive of the interest which had accrued, if C. would acquit and discharge him from all further demands, hut otherwise he would not pay; and C., as most advantageous to the estate of A., accepted the offer, and received the principal of the debt from 22. without the interest, and thereupon released and discharged him. In an action of covenant brought by C. against 23. on the agreement to recover her share of the estate of Ji., it was held, that the release by C. of the debt due of I). to the estate of Ji., was a good defence; that C. by the agreement was to take out administration in England, solely for the purpose of collecting the debt due from 22., and had no discretion to compound for the same, or release any part of it; and by so compounding and releasing 22., C. had taken the debt upon herself; and had tailed to perform the condition precedent to her right of action against 23. the administrator of li. under the agreement.</p>

<p>THIS was an action on a policy of insurance, dated the 10th October, 1807, on the brig Stephen, Barkers Blaster, on a voyage from New-Tork to Bordeaux, and at and from Bordeaux back to New-Tork; warranted American property, proof whereof, if required, to be made here only ; and warranted by the assured not to abandon, in case of capture or detention, until six months after advice thereof received at the office of the defendants, unless previously condemned.</p> <p>A verdict was taken, by consent, at the New-Tork sittings, the 14th April, 1810, subject to the opinion of the court, on the following case. The vessel sailed from Bordeaux, on her return voyage, with a cargo of brandy and dry goods, on the 24th December, 1807, but was detained in the river by an embargo, until the 24th January, 1808. On the same day she was captured by a British privateer and carried into Plymouth, and both vessel and cargo were libelled in the admiralty court. A claim was interposed in behalf of the plaintiffs, who were owners of the vessel and cargo, by Messrs. Batard, Sampson 8? Sharp, the correspondents of the plaintiffs, to whom the master addressed himself, and at his re* quest. On the 29th March, 1808, the vessel was condemned, and the cargo restored. The claimants appealed from the sentence condemning the vessel, and the, saptors appealed from the sentence restoring the cargo. An abandonment was made by the plaintiffs on the 1st June, 1808, which was renewed the 23d of August, 1808. An arrangement was made between the. captors and the master, by which it was agreed, that the master should relinquish the appeal entered as to the vessel, and the captors should relinquish the appeal as to the cargo; and both appeals were accordingly withdrawn, on the 21st of April, 1808, and an entry made in the . minutes of the admiralty to that effect, and a writ of unlivery or restitution of the cargo was sued out. This arrangement was made by the advice of counsel, who gave a decided opinion that the sentence of condemnation would be affirmed, and probably with costs..</p> <p>With the approbatipn of Batard, Sampson 8? Sharp, the master, afterwards, purchased the vessel of the captors. They demanded 1,500 pounds, but they finally-agreed to take 1,300 pounds, and deliver the vessel, with all her original papers, as she was before capture. The purchase was concluded on the 3d of June, 1808, and a bill of sale executed; and on the 14th June, 1808, the king’s license was obtained, ratifying the purchase, and permitting the vessel to sail with her original papers. To pay the purchase-money, and defray the other expenses arising from the capture, the captain took up money on bottomry interest, and executed a bottomry bond to Batard, Sampson 8? Sharp, who advanced the money; the bond, amounting to 13,634 dollars and 840cents, was paid by the plaintiffs, after the arrival of the vessel at Neru-Tork. Batard, Sampson 8? Sharp wrote to the plaintiffs, on the 1st of June, 1808, informing them what had been done; and that it was necessary for the master to take up money on bottomry, to pay the purchase-money of the vessel and the other expenses, and enclosing their account of the sums advanced by them, for which they had taken the bond. In their letter, Batard, Sampson &?' Sharp mention, that the price paid for the vessel was, perhaps, higher than she would have sold for at public sale; but it was thought, that it would be more agreeable to the plaintiffs, to avoid the inconvenience and expense of landing the cargo, and sending it by another vessel. The vessel arrived in safety at New-Tork, and delivered her cargo. The plaintiffs, afterwards, on the 23d of August, 1808, addressed a letter to the defendants, informing them of the arrival of the vessel, and the delivery of the cargo, and repeating their abandonment. They also stated, that the captain had been obliged to give a bottomry bond, and if the defendants meant to consider the purchase as made for their benefit, they must pay the bond, after deducting the freight, or if they-disavowed the purchase, the master, paying the bond,; would be at liberty to dispose of her; that if the defendants returned no answer, the plaintiffs would be obliged to sell the vessel at auction, and after paying the bond and charges, to hold the surplus for the benefit of whom it might concern. To this letter the defendants, on the 29th August, 1808, answered that they were not able to say whether they did or did not accept the abandonment, but they propose to pay the bond, deducting the freight, and that the vessel remain or be sold for the benefit of whom it may concern. The plaintiffs, in their reply, dated the 13 th September, 1800, say they “accede to the proposals,” and are ready to receive the amount of the bond, deducting the freight, leaving a balance of 11,412 dollars and 43 cents, and enclose the bond, on the payment of which they would delay the sale of the vessel, and take all possible care of her for the~benefit of whom it might concern.</p> <p>The defendants, afterwards, refused to pay the bond, and the vessel was sold, and the proceeds applied to the discharge of the bond.</p> <p>A verdict was taken for a nominal sum, and it was agreed that the amount for which a judgment was to be entered, should be liquidated by two persons named, on such principles as the court should direct.</p>

SUDAM and Benson, for the defet~dants, moved, at the last term, to set aside the execution in this `cause. The affidavit of Staats, which was read, stated, that a judgment was entered up in Augu.~t, 1808, against the defendant Staat8, in favour of the plaintiff, on which a , Ca. .sa. for'436 dollars and 60 cents was issued to the sheriff of Columbia.

HARRIS and T. A. Emmet, for the plaintiff, moved for leave to issue execution on the judgment given in this cause, in Febmary term, 1810, (see 5 Johns.

<p>THIS vyas an action of assumpsit. The declaration; contained five counts. The first count stated that the defendants were joint partners, as stationers and lotteryojfice keepers, and used the trade of purchasing, selling and insuring tottery tickets; and that on the 27th January y 1808, a discourse was held between the plaintiffs and defendants, concerning a lottery, called the Baltimore Grand Lottery, and of and concerning the drawing of certain tickets, on the thirteenth day of the drawing of the said lottery, and it was then agreed by the defendants, that if the plaintiffs would pay. to. them. 83 dollars and 33 cents, the defendants would pay to the plaintiffs 2,000 dollars, in case the ticket" No. 167. in the said lottery, was drawn on the" thirteenth day of the drawing; and the plaintiffs averred that they paid the defendants the sum of 83 dollars and" 33' cents, and the defendants, in consideration thereof, assured and promised, &c. by reason whereof, &c.</p> <p>The second count stated the same promise in writing.</p> <p>The third count stated that a conversation, &c. and that the defendants agreed, that if the plaintiffs would pay to them 12 dollars and 50 cents,, the defendants would pay to the plaintiffs 100 dollars on such and each of the tickets, No. 7,000, No. 8,000, and No. 9,000, in the said lottery, as should be drawn on the thirteenth day of the drawing of the said lottery; and the plaintiffs averred that they paid, the defendants the sum of 1'2; dollars and 50 cents ; and that the ticket No. 8,000 was drawn on that day. By reason whereof, &c.</p> <p>The fourth count stated the promise to be in writing.</p> <p>The fifth count was for money had and received to J the use of the plaintiffs. Plea, non assumpsit.</p> <p>The cause was tried before Mr. Justice Spencer, at J r ’ the New-Tork sittings, the 13th of April, 1810. °</p> <p>. , . . , ,, , At the trial, the plaintiffs proved the agreements promises in writing, as stated in the second and fourth counts. A witness testified, that on the day the account of the tickets drawn in the lottery on the 13th day of drawing, arrived in New-Tork, one of the defendants told the witness that they, the defendants, had been hit by the plaintiffs, in the sum of 2,000 dollars, on No. 167. and in 100 dollars on No. 8,000, which tickets had come out on the 13th day of drawing the said lottery; and that the plaintiffs had called and demanded payment of the 2,000 dollars and the 100 dollars, but the defendants had refused to pay, and intended to resist payment.</p> <p>A verdict was taken for the plaintiffs, by consent, subject to the opinion of the court, on a case containing the above facts-</p>

THIS was an action of assumpsit for monéy had and 1 , received to the use of the plaintiffs. The cause was tried . , . . , at the New-York sittings* m April, 1810, when a verdict was taken for the plaintiff for 3,139 dollars and 94 cents, subject to the opinion of the court on the following r . . case • Chipmill, Le Lure & Co., of Petersburgh, Virginia, on ^le 6th °f April, 1808, drew a bill of exchange on James JÍ.

THIS was an action on a policy of insurance, on goods on board of the ship Victory, from New-York to Cherbourg, in France. . , , _ T .. „ . . . ine cause was tried at the New-York sittings, in June, 1810, when a verdict was found for the plaintiff, subject to the opinion of the court on the following case, with liberty to either party to turn the same into a special verdict, The policy contained the usual printed clause, “ warranted free from seizure for or on account of any…

THIS was an action of assumpsit. The declaration contained two counts on two several promissory notes, The second count was on a note by which the defendant promised to pay the plaintiff “ in a good horse, to be worth, with saddle and bridle, eighty dollars, and goods out of the store amounting to twenty dollars,” &c., by ° v reason whereof, and by force of the statute in such case lnacie and provided, “ the defendant became liable to pay, &c. and being so liable, &c.…

THIS was an action of assumpsit. The declaration stated that the defendants, on the 7th June, 1809, in consideration that the plaintiff had delivered to the dey fendants, two horses, eight beds, two cows, &c. the der lili. ... tendants undertook, and by their agreement m writing pro-raised the plaintiff to deliver the same articles to the plaintiff when he should demand the same, or pay the plaintiff 450 dollars.

THIS was an action of debt on a bond, dated rune 76, 1807, for 1,200 dollars.

THIS cause came before the court on a writ of error from the court of common pleas of Onekia county. Morgan declared, in the court below, against John B. Pease and George Pease, for that whereas the said Johi; B. and George, on the 20th of May, 1799, at, &c. made. their note in writing, commonly called a promissory note, their own prope~ hands an-i names being therei.mto subscribed, by the name and description of John and George.

THIS was an action of assumpsit. The declaration contained four counts.

THIS was an action of trover. At the trial, the fol lowing facts were proved : On the 24th September, 1805, Joseph Travis, and Thenezer Merritt, entered into an agreement, by which Travis, who is a shipwright, in consideration of 1,300 dollars, agreed to build a sloop for him, of certain di«tensions, expressed in the agreement. Travis engaged to furnish the timber requisite to complete the frame of the vessel, at the ship-yard.

THIS was an action of covenant. The cause was tried at the Washington circuit, in June, 1810, before Mr. Justice Van Ness. An agreement was proved, by w^ich the .plaintiff covenanted to pay to the defendant 300 .dollars, on or before the 1st of July, 1809, at , u J which time the defendant covenanted to convey to the . plamtifF a certain farm, &c. bo.ur days before the 1st of July, 1809, it was agreed between, the parties that t^le 300 dollars should be paid in bank bills.

THIS was an action of debt for an escape. The cause was tried at the Albany circuit, in hpril, 1810, before Mr. Justice Thompson. The declaration contained two counts. 1. For suffering and permitting Jason Rudes, being in the defendant's custody, as sheriff of the county of Albany, on a Ca. sa. at the suit of the plaintiff, to go at large out of his custody, &c. 2.

<p>A sentence of a court of admiralty is sufficient condemnation, ing the previous proceedings,ano a copy sentenci the seal of the sentence under therocíuary m the absence of eompanied with a deposition of a witness proving the seal and signature, washeid a -ufiicient authentication. sec/of6® court notf^of^itseif8</p> <p>ofinsurancecontamed a clause of warranty as neutral property, and also a clause “ that in case of loss or misfortune, it shall be lawful and neassured, his faci and’ assign*”*3to aud ftravé?b°in and about the defence, safeguard and vecovery of the properiy,” kc. it in’ cuse of cap1 orl\beirJagenis •were not bound to put in a claim or appeal; and though the property was (condemned because no claim was interposed, yet the assured were entitled to recover; for the assured has a right to abandon immediately on advice of the capture; and after an abandonment rightfully made, the master beet mes the agent or servant of the insurers, and is answerable to them, for his misconduct or\ neglect.</p>

<p>ji sold a vessel to Ji. in whose name she was it^was6a'°Teed should hcneh/ofV^the freight to arise from a voyage, for which Jl. liad previously chartered the vessel, and on which she was fasTreíthe'vesthe'voyage1 ami Jl. procured in-made on the freight of goods on board of the the same Voyg!eemcnttllebeorThe^pecniiar nature of vl’s interest,was not communicated to the insurer. It was held, that insurable intefiterest SU°h as could be insured under the name of freight, without disclosing and specifying £,rU“al na"</p>

THIS was an action on a policy of insurance on the cargo of the schooner Two Brothers, from New-York to Charleston, South Corolina, The cause was tried at the New-York sittings in ° April, 1810. ^ , 1 he insurance was declared by the policy, to be upon the goods specified in the margin, (being beef, butter, soap, candles, apples and potatoes,) and whereon 1,310 dollars were insured.

IN error, on certiorari, from a justice’s court. Sudam sued Kilmore in the court below, in an action on the case, for 8 dollars, on account, as a physician. The defendant pleaded the general issue. The parties, by agreement, adjourned the cause until the 6th of November, at which time Sudam appeared in person, and A. L. Jordan appeared, under a power of attorney, for Kilmore.

THIS was an action of ejectment for lands in Lot No. 33. in the Saratoga patent. The cause was tried at the Washington circuit, in June, 1810, before Mr. Justice Van Ness. A lease was proved, dated the 8th December, 1795, - 7 1 by which Philip Schuyler, under whom the lessor of the » plaintiff claimed, demised the premises to Oliver Warren, for 21 years, from the 1st January, 1796.

IN error, on certiorari, from a justice’s court. The return stated that Simpson sued Carter before the ^ » ■* e justice, and declared for damage done to his hay, by the cattle of the defendant, which the defendant turned into the field where the hay was stacked, and in pulling down ' and carrying away the fence around the stack, &c. The defendant pleaded not guilty; and the cause was tried by a jury.

THE plaintiff, by indenture, dated 2d May, 1808, de1 ’ f ’ ’ a tenement in the city of New-Tork to the defendant, for one year from, the first of May, 1808, for the rent of 200 dollars, payable quarterly; and the defendant covenanted quietly to surrender up the premises at the end of the year, in good order, &c. The plaintiff, on the 4th of March, 1809, gave the following xvritten notice to the defendant. “ Mr. William Bailentine, this is to notify you to leave the store and…

A JUDGMENT of nonsuit having been entered in this cause, for not declaring, Sill, for the plaintiff, now moved to set aside the judgment, on the ground of irregularity.

THE defendant is an attorney of this court, and the suit was brought against him on a note for a sum above 25 dollars, but less than 50 dollars, and a judgment was given for the plaintiff, on a cognovit, for less than 50 dol1/07 lars. The question was, whether the defendant was liable to pay supreme costs; and if not, whether the plaintiff was liable to pay costs to the defendant.

N. WILLIAMS, for the defendant, moved to discharge the defendant from the arrest, and to set aside the capias and proceedings in this cause. He read an affidavit, statin8>t that on the gth of October last the defendant was un(ier recognisance to appear at the next general sessions of the peace, to be held in Madison county, on the r first Tuesday of January last.

THE defendant was brought up on an attachme~it, fQr non-payment of the costs in several actions of ej ectment, in which he was a lessor, at the last Augzt~t term, (6 johns.

THIS was an action ,of assumpsit. The declaration and. pleas were the same as before stated, in me same , , . — , case, between the same parties, vol. 6. p. 1. lo . , r plea oí non assumpsit xvas subjoined a notice oí special matter to be given in evidence at the trial. The cause was tried at the Albany sittings, on the 16th of October, 1810, before the Chief fustice.

IN error, on certiorari$ from a justice’s court. A motion was made on the part of the defendant, that the additional return of the justice be received, An affidavit of the attorney for the defendant was read, stating, that until after joinder in error, he did not ^now t^iat t^le return of the justice was incorrect.

<p>STORES, for the plaintiffs, moved for a peremptory ■mandamus in this cause. An alternative mandamus was issued in February term, 1810, directed to the defendant, stating, that by the “ act relative to the duties and privileges of towns,” passed 7th March, 1801, and the “ act to regulate highways,” passed the 8th April, 1801, it was the duty of the defendant, as town clerk of Turin, to record all surveys of public highways laid out, established and described by actual survey, by the commissioners of highways in the town of Turin; that at the town meeting, held at Turin, in the county of Lewis, on the first Tuesday of March, 1808, Oliver Bush, Zaccheus Higby, otherwise called Zaccheus Higby, junior, and James Miller, were duly elected, qualified and sworn into the office of commissioners of highways, in and for the town of Turin, and that Bush and Higby, on or about the 21st of February, 1809, duly laid out and established a certain public highway in the said town, leading, &c. and did procure an actual survey of such highway, and annexed to the same the requisite directions to the defendant, as town clerk, to record the same, and delivered to him such survey and directions which survey was set forth : but the defendant . refused to. record the said survey, contrary, &c. and therefore the defendant was commanded without delay to record the said survey and directions, or show cause, &c.</p> <p>The return stated that at the annual town meeting in Turin, on the first Tuesday of March, 1808, Oliver Bush, Zaccheus Higby, junior, and James Miller were duly elected commissioners of highways, for the year ensuing ; that by the 7th section of the act, &c. every commissioner of highways, before he enters upon the execution of his office, and within fifteen days after his election, shall take and subscribe an oath before some justice of the peace, &c. and that the justice shall, within eight .days thereafter, certify the same oath, and deliver it to the town clerk, &c. and that if he shall not take and subscribe such oath, &c. and deliver such certificate thereof, &c. such neglect shall be deemed a refusal to'* serve in such office j and the town may proceed to 'boose another; that neither of the above-named commissioners did transmit and deliver to the clerk of the town of Turin such certificate, &c. according to the 7th section of the act, &c. That Zaccheus Higby, described in the writ of mandamus, was chosen a commissioner of highways by the name of Zaccheus Higby, junior, and is known by that name, and no other; that a writing signed by Oliver Bush and Zaccheus Higby was left at the office of the defendant, in his absence, on the 21st of February, 1809, to be filed and recorded, being “ minutes of the survey of a road,” &c. setting it forth; and that for these reasons, because the said Oliver Bush, Zaccheus Higby and James Miller were not sworn into office, and the certificate of their oaths filed in the clerk’s office according to law, and because the writing purporting to be a survey signed by the commissioners of highways, did not, as to the names of the commissioners, agree with the names of the persons who were elected, &c. he did not record the said survey of the said road, &c.</p> <p>Storrs said, that the facts in the return ought to be stated precisely and affirmatively, and not by way of inference.* If the supposal of the writ be contradicted or denied’, it must be denied directly. † The return to a mandamus should have all the certainty of a special plea. This case is analogous to cases arising under the acts of incorporation in England. The true construction- of the act (24th sess. c. 78. sect. 7. and 13.) is, that the election is merely voidable. It is enough that the office was full, or that there was an officer de facto. ‡ Such an officer, being in" by colour of election, can only be removed by a quo warranto.§ The commissioners might proceed to execute their duties without taking an oath, but subjecting themselves to the penalty.</p> <p>Again, the commissioners are not bound to take the oath before the end of 15 days ; and suppose they do an act before that time, will not such act be good ? An officer de facto is one coming into office by colour of election, and all his acts are good until he is removed.*</p> <p>[Kent, Ch. J. That law is too well settled to be discussed.]</p> <p>The town clerk has no right to inquire or judge of the qualifications of the commissioners. It is enough that they are officers defacto, and that the paper comes from them. †</p>

<p>After the lapse of IB years, the court refused to permit a judg- . ment to be entered up on a bond and warrant of attorney, on the usual affidavit, the legal presumption being that the bond was paid.</p>

THE appellant Ann, formerly Ann Cruder, exhibited , her bill m the court of chancery, on the 18th of May, 1801, stating, that her late husband, Nicholas Cruger, deceased, was seised and possessed of a very considerable real and personal estate,, and on the 22d day of February, 1791, duly made and published his last will and testament; by which, after directing his debts to be paid, and directing his executors to make an inventory of his estate, as soon after his death as…