Volume 7 — Wendell's New York Reports

■ This was an action on the case, tried at the New-York circuit in September, 1829, before the Hon. William .A. Duer, then one of the circuit judges.

Error from the New-York common pleas. Lewis sued Guyon in an action of covenant, on certain articles of agreement entered into between the parties on the 8th November, 1826, wherein, after describing the parties as “ H. G. G. of the city and state of New-York agent for Isaac Simonson, now resident in Bogota, capital of Colombia, South America, carpenter, of the first part,” and “ J. L. of the city and state aforesaid, carpenter, of the second part,” it was stated that the…

This was an action of assumpsit, tried at the New-York circuit in May, 1829, before the Hon. Ogden Edwards, one of the circuit judges. The counsel for the plaintiffs, in opening this cause, stated that the plaintiffs’ claim was principally for money lent by the plaintiffs to the defendants, and for money had and received by the defendants to the plaintiffs’use.

Error from the New-York common pleas. Dorcas M. Rem-sen sued Lownds, sheriff of New-York, in an action of debt, for the escape from the jail limits of one John Smalley, who Was -committed on a capiasvtdsatisfaciendum, at the suit of the plaintiff. The defendant pleaded nil debit.

Demurrer to declaration. The plaintiff declared in covenant, setting forth that by certain articles of agreement made between Gumaer and Allen as his security of the first part, and the plaintiff of the second part, the defendants covenanted to sell and deliver to him 5000 cedar rails, to be delivered on,&c. at, &c.; and that he covenanted to pay to Gumaer $50 per thousand, &c.; and after averring performance on his part, the plaintiff alleged that the defendants did not…

Demurrer to pleas. The plaintiff declared in covenant for the non-payment of rent. The declaration contained two counts ; in the first the demise was set forth in substance, in the second in hcec verba. The lease was stated to have been executed on 20th August, 1817, term to expire on 26th January, 1819, when the rent reserved, viz. #206, was to be paid.

This was an action of ejectment, tried at the Delaware circuit in November, 1828, before the Hon, Ogden Edwards, one of the circuit judges. The lessors of the plaintiff claimed’ to recover the premises in question in the right of Parthenia, the wife of Dies, as the heir at law of Enoch Copley, deceased.

This was an action of debt, to recover the penalty given by the act to punish champerty mvlmaintenance, fox purchasing a title to land in the possession of the plaintiff and others ; the cause was tried at the Yates circuit, before the Hon. Daniel Moseley, one of the circuit judges. On the 1st of March, 1825, the defendant purchased a lot of land containing 297 acres, of A. Jenkins and others for the consideration of $1784.

Demurrer to assignment of errors. Moody sued out a writ of error to reverse a judgment obtained by Vreeland against him in the Seneca common pleas. The record was returned to this court with a bill of exceptions.

This was an action of assumpsit, tried at the Washington circuit in November, 1829, before the Hon. Esek Cowen, one of the circuit judges. This action was on a promissory note for $1000, given by the defendant and one E. W. Judd to the plaintiff bearing date 1st May, 1824.

This was an action of ejectment, tried at the Clinton circuit in June, 1829, before the Hon. Esek Cowen, one of the circuit judges. The plaintiff shewed title in his lesssor to lot No. 60 of the eighty acre lots'm the Canadian and Nova Scotia refugee tract, by letters patent granted the 27th February, 1780, and claimed to recover 25 acres near the centre of the lot in the possession of the defendant.

Error from the Tioga common pleas. Mead sued Minard in a justice’s court, and the cause was brought into the Tioga common pleas by appeal. The justice returned that the plain, tiff declared on a special contract by defendant to pay him $50, and added thereto the common counts ; and that the defendan pleaded the general issue, and that if any contract was made, it was by the wife of the defendant, and was made with E. Buckbee, and not with the plaintiff.

Demurrer to replication. The declaration was for goods sold and delivered, money, lent, &c. and the other money counts ; the day of indebtedness being laid on the 1st January, 1829.

<p>Where an insurance was effected upon a steam saw-mill, and subsequent to the policy being underwritten, the boiler, which was placed on the outside of the mill, was enclosed by a frame building and covered over with a roof, it was held, that evidence of the opinions of underwriters who had not seen the premises, and had no particular science in the construction of such builgings, was not admissible to shew .that the risk was materially increased by such additional building; whether the risk was thereby increased not being a matter of skill or science, but simply a question of fact which the jurors were as competent to decide as the witnesses.</p> <p>Persons of skill are allowed to give their opinions in evidence, only in cases where from the nature of the subject, facts disconnected from such opinions cannot be so presented to a jury, as to enable them to pass upon the question with the requisite knowledge and judgment.</p> <p>An application for insurance, describing a building is not a warranty unless mserted in the policy; and it see ms that a reference in the policy to the application would not be sufficient to give it the effect of a warranty; the relaxation of the rule on this subject not extending beyond the proposals of underwriters usually attached to policies, in reference to which it is expressly declared that the policies are made and excepted.</p> <p>Although the description of premises in the application for insurance may vary very considerably from the actual state of the property at the time of the loss , if the variance were not fraudulently intended, and does notin fact affect the rate of insurance or change the actual risk, the policy will not be avoided; it is only where there-is fraud, or where the underwriter has been misled, that the policy is affected by a false representation.</p> <p>Where a policy insured two individuals by name, and then the words or wham it may concern were added, and a clause was inserted in the policy that the loss, if any occurred, should be paid to the individuals named, it was held, than an action might be maintained in their names, and that they were en. titled to recover the whole sum insured, although it appeared that they were owners of but one half of the building insured, and that the other half belonged to a third person, not joined as plaintiff.</p>

This was an action of ejectment, tried at the Madison circuit in September, 1829, before the Hon. Samuel Nelson, then one of the circuit judges. The lessors of the plaintiff claimed title to the premises in question under a deed from one Joshua Clark, who derived his title by a conveyance from one Stephen Clark, bearing date in September, 1817.

Error from the Onondaga common pleas. Hoyt sued Alexander and three others in a justice’s court, and declared against them for taking and selling a cow, under the pretence of a school district warrant, which he alleged to have been illegaily issued. The defendants severed in their defence, pleading the general issue separately.

This was an action of ejectment, tried at the Tioga circuit, in June, 1829, before the Hon. Samuel Nelson, then one of circuit judges. The lessors of the plaintiff are the children and heirs at law of Nathaniel Sackett; the defendants are the widow and son-in-law of Richard Sackett.

<p>Error from the Erie common pleas. Brintnall sued Foster on a promise to indemnify him as a constable in the sale of certain property on a justice’s execution, for the selling of which he alleged he had been sued, and subjected to the payment of damages. The defendant pleaded, 1. Non-assumpsit ; 2. A former suit by the plaintiff against him for the same cause of action, before a justice of the peace, in which the defendant obtained judgment that he did not undertake and promise in modo et forma, &c. and costs of the defence were awarded to him, referring to the record remaining before the justice ; and 3. Setting forth the same suit before the justice, that a trial was had, that after the proof and allegations the cause was submitted to the justice, and that the defendant recovered a like judgment as set forth in his second plea, again referring to the record remaining before the justice. The plaintiff replied to the second plea, nul tiel record; and to the third, that the cause was not submitted to the justice ; that the defendant did not obtain the judgment alleged in his plea and nul tiel record. On these pleadings the parties went to trial. The plaintiff proved his declaration. The justice referred to in the plea, produced his docket, shewing a suit before him for the same cause of action, and concluding in these words: “ On hearing plaintiff’s proof, ordered judgment of nonsuit; costs, $1,88.” The justice testified that the cause was tried before him; that several witnesses were sworn ; that when the plaintiff’s proofs were closed, the defendant moved for a nonsuit, which he refused to grant; that the case was argued, and he took time for consideration; that he was of opinion that the plaintiff had failed in shewing a right to recover, because he had not proved that he had paid the judgment, which had been rendered against him, and be’caüse he had not shewn notice to the defendant of the suit prosecuted against him; for these reasons he gave judgment of nonsuit against the plaintiff, which he supposed was the on]y judgment he could give under the circumstances of the case. This evidence was received by the court, though objected to by the plaintiff; and the jury, under the charge of the court that the judgment before the justice was a bar to the ..present action, found a verdict for the defendant. The plaintiff excepted to the decisions of the court, and sued out a writ of error.</p>

This was an action of assumpsit, tried at the Onondaga circuit in September, 1829, before the Hon. Daniel Moseley, one of the circuit judges. The plaintiff entered into a contract with a transportation company on the canal, called the Franklin line, C. Smyth and J. Field constituting the company, to keep for them two span of horses, and to board two drivers during the boating season of 1828, for which he was to receive #4,50 per week.

This was an action of assumpsit, tried at the Washington circuit, in November, 1829, before the Hon. Esek Cowen, one of the circuit judges. The declaration was for use and occupation of a wharf at Whitehall, as a landing place for a steam boat, of which the defendant was master and part owner.

This cause came before the court on a motion by the defendant for a new trial; and at the same time a motion in arrest of judgment was presented. The action was assumpsit.

. This was an action of assumpsit, tried at the Schenectady circuit in January, 1830, before the Hon. James Vanderpoel, one of the circuit judges. The liability of the defendant as the endorser of a note payable in 1827j was duly shewn.

This was an action of assumpsit, tried at the Warren circuit in June, 1829, before the Hon. Esbk Cowen, one of the circuit judges. The declaration contained the money counts only. The action was to recover back $100 paid by the plaintiff, to redeem a number of hogs belonging to him, kept by Cronkhite, one of the defendants, at a distillery, for the purpose of being fatted.

Error from the Mayor’s court of Troy. In June, 1828, Greenman agreed to build two stacks of chimnies, and to do other mason work in the building of a dwelling house; the materials to be provided by Koon, and the work to be com* pleted by the 1st August, 1828, for which Koon was to pay certa¡n stipulated prices.

This was an action of ejectment tried at the Onondaga circuit, in September, 1829, before the Hon. Daniel Moseley, one of the circuit judges. The lessors of the plaintiff are the heirs at law of Captain Je ronimus Hoogland, of the cavalry of the army of the United States, during the revolutionary war. On the trial of the cause they produced letters patent for lot No. 18, Marcellus, of which the premises in question are a part, bearing date the 8th of August, 1820.

<p>Demurrer to plea. The plaintiffs declared in covenant on a contract bearing date 30th May, 1827, whereby, after reciting that the defendant on the 10th day of April, then last past had purchased at a sheriff’s sale, by virtue of executions against a certain person, 88 acres of land; and that in consideration of $320 paid to him by the plaintiffs, he had bargained and sold to them 40 acres off of the north part of the premises purchased by him, the defendant covenanted and agreed that he would convey to the plaintiffs, by a deed of warranty, the said 40 acres, at the expiration of 15 months from the time of the sheriff’s sale, provided the title to the premises should be vested in him by virtue of the sheriff's deed. The plaintiffs averred that on the 10th day of July, 1828, the title to the premises purchased by the defendant was vested in him by virtue of such deed, but that he refused to convey to them, although requested so to do. The defendant interposed several pleas, and among others that he was ■not requested by the plaintiffs, on the 10th July, 1828, or at any other time afterwards, to convey to them the 40 acres; nor did he on that day, or at any time afterwards, refuse to convey the same. To this plea the plaintiff demurred, and assigned for cause of demurrur, that the plea was double: in alleging that the defendant was not requested, and that he did not refuse. The defendant joined in demurrer.</p>

This was an action on the case, tried at the Dutchess circuit, before the Hon. James Emott, late one of the circuit judges. The action was brought for the escape from prison of J. G. Lasher, junior, a defendant in execution, at the suit of the plaintiffs. He was committed to prison on the 28th of June, 1826.

This was an action on the case against the sheriff of Sara-toga, for a false return of nulla bona on afi.fa. at the suit of the plaintiffs against one Royce, for $101,30. The execution was delivered to the sheriff on the ninth day of May, 1829, returnable on the sixeeenth of the same month. On the eleventh day of May the sheriff levied on two carding machines, the property of the defendant.

This was an action of ejectment, tried at the Chenango circuit in December, 1828,. before the Hon. Samuel Nelson; then one of the circuit judges.

This was an action for breach of promise of marriage, tried at the Cayuga circuit, in January, 1830, before the Hon. Daniel Moseley, one of the circuit judges. In the summer of 1826, the plaintiff, then about 17 years of age, went to reside with her brother, who lived about 60 miles from the father’s residence, where she became acquainted with the defendant, who paid her some attention, and promised her marriage.

<p>A road or highway, of which a survey has been filed and recorded by the commissioners of highways between 1805 and 1826, is a public highway, notwithstanding that the same may not have been regularly laid out in pursuance of the requirements of the statute.</p> <p>A plea of title is no bar to an action by commissioners of highways for an obstruction of a highway.</p> <p>Where a suit brought by commissioners of highways in a justice’s court, to recover a penalty of five dollars, for the obstruction of a highway, was dismissed by the justice, in consequence of a plea of title being interposed by the defendant, and the suit was subsequently prosecuted in the common pleas, where the plaintiffs had a verdict forfive dollars debt and double costs were awarded to them, on a writ of error being sued out by the defendant» the judgment was affirmed as to the debt, and reversed as to the costs, and the plaintiff in error was awarded to pay costs to the defendants in error.</p>

This was an action of ejectment, tried at the Essex circuit, in January, 1830, before the Hon. Esek Cowen, one of the circuit judges. The premises in question were sold for taxes, and on the 22d April, 1823, the comptroller of the state executed a deed of the same to M. Wheeler and W. McDonald, pursuant to the sale, and in complyance with a certificate of the sale by him given.

<p>This was an action of ejectment, tried at the Cortland circuit in June, 1829, before the Hon. Samuel Nelson, then one of the circuit judges.</p> <p>Title was shewn in the lessor of the plaintiff to the premises in question, being part of lot No. 60 Home'r, under a sheriff’s sale, by virtue of an execution issued on a judgment obtained by the lessor of the plaintiff against Abraham Franklin and others, docketed the 28th May, 1808. Lot No. 60, Homer, was conveyed by the sheriff of Cortland in pursuance of such sale by deed, bearing date the 15th November, 1821, to Hendricks, the lessor, and to Elisha Tibbits; and on the 5th July, 1826, Tibbits conveyed all his interest in the lot to Hendricks. The defendants being admitted to be in possession in severalty of distinct parcels of the lot at the commencement of the suit, the plaintiff rested.</p> <p>The defendant admitting Abraham Franklin to be the common source of title to both parties, produced an exemplification of the record of a deed, bearing date “ the twenth ninth day of March, in the year of our Lord one thousand eight hundred and between Abraham Franklin of, &c. of the first part, and Henry Franklin of, &c. of the second part,” whereby, for the consideration of $3000, No. 60, Homer, and various other tracts of land are conveyed in fee to the grantee. This deed purported to have been acknowledged .before a proper officer on the 29th March, 1808, and to have been recorded in the clerk’s office of the county of Onondaga on the 21st April, 1808. Having produced this evidence, the defendants insisted that the title of Abraham Franklin having been divested in 1800, and the judgment under which the plaintiff claimed not having been docketed until 1808, the plaintiff was not entitled to recover.</p> <p>To destroy the effect of this evidence, the plaintiff produced a decree in chancery, made on the 20th January, 1817, whereby certain conveyances of real estate, from Abraham Franklin to Henry Franklin, made in February and March, 1808, were adjudged to have beeen fraudulently executed, and were declared to be null and void in law. This decree was made in a suit in chancery, in which Hendricks, the lessor of the plaintiff, was complainant, and Abraham Franklin, Henry Franklin and others were defendants. In the bill, which was filed on the 3d June, 1809, the plaintiff charged that he was a judgment creditor of Abraham Franklin to a large amount; that Abraham Franklin had fraudulently conveyed away his real estate specifying some of the conveyances made by him, and alleging that he could not specify all; that he had issued execution on his judgment, and could not obtain satisfaction by reason of such fraudulent transfers and praying a discovery of the conveyances made to Henry Franklin, and that the same might be avoided, &c. In the answer of Henry Franklin he admitted that Abraham Franklin, by deed, bearing dace the 29th March, 1808, for the consideration of $3000, conveyed to him lot No. 60, Homer, and various other tracts, and that such deed was acknowledged on the 29th March, 1808, and recorded on the 21st April, 1808, in the clerk’s office of the county of Onondaga, which conveyance he alleged was executed to him to secure him for a debt due to him, and to indemnify him for certain responsibilities assumed for Abraham Franklin. The decree avoided such conveyances as were admitted in the pleadings to have been executed.</p> <p>The defendants now produced a deed from Henry Franklin, bearing date the 10th November, 1810, whereby, for the consideration of $1600, he conveyed lot No. 60, Homer, to J. N. Cushman, and deduced title to themselves, from Cushman to the several portions possessed by them, and as the case states; offered to shew an adverse possession of more than twenty years before suit brought, by proving that they, more than twenty years before suit brought, were respectively in possession of the premises in question, but disclaiming to have any right or pretence of right to such possession, other than that derived through the deed from Abraham Franklin to Henry Franklin; insisting that the said deed having been recorded as a deed bearing date in 1800, and prior to the docketing of the judgment in favor of the lessor, and the defendants having purchased on the faith of that record, they were entitled to protect themselves under it as a deed of that date; which evidence thus offered to be given was objected to, and rejected. The defendants having shewn that on the 5th July, 1826, and since, they were in possession of several and distinct portions of lot No. 60, in severally, and this action having been brought against them jointly, insisted that the plaintiff was not entitled to a verdict, or if entitled, that a verdict could be rendered against one only of the defendants, and that the plaintiff was bound to make his election; and they further insisted, that being in possession, holding adversely at the date of the deed from Tibbits to the lessor, that deed was void, and consequently the plaintiff, if entitled to recover, could recover but a moiety of the premises claimed. Under the direction of the judge a verdict was entered against each of the defendants for the premises in his separate possession, subject to the opinion of this court, upon the question whether the plaintiff was' entitled to recover, and if so, whether he should recover the whole or only moiety of the premises in question.</p> <p>The deed to Henry Franklin having been declared void by a decree in chancery, and -the title of the defendants derived' from him having been ac-' quired during the pendency of the suit prosecuted for the avoidance of that deed, their conveyances also are void and inoperative. The suit in chancery was notice to all the world, and ilie defendants holding that title of Henry Franklin, are in no better situation than he would have been in had he not conveyed. The conveyances, to the defendants during the pendency of the suit being absolutely void, conferred not even a colorable title to sustain the defence of an adverse holding; consequently there was nothing to prevent the operation of the deed from Tibbits to Hendricks: by the purchase the defendants became quasi tenants to Hendricks and Tibbits.* Although the suit was joint, the plaintiff is entitled to recover against each defendant the premises in his separate possession.</p> <p>The defendants ought not to be considered purchasers pendente lite ; the bill does not specify and charge the deed under which they derive title as having been fraudulently executed; the defendants were not parties to the suit, and there is no pretence that they had actual knowledge of its existence. On the contrary, the deed to Henry Franklin of lot No. 60 bears date in 1800, and the deed charged as fraudulent are alleged to have been executed in 1808 and 1809 ; they may therefore well be considered as bona fide purchasers. At all events, at the date of the deed from Tibbits to Hendricks, the defendants held adversely under color of title, and the plaintiff, if entitled to recover, can recover but a moiety of the defendants’ possessions. Besides, he can recover against but one of the defendants, having failed in shewing a joint possession. The defendants are not joint trespassers. If the plaintiff recover against all, they may be subjected to a joint action for mesne profits, although it is admitted that their possessions are separate and distinct; each one holding in severalty the land in his separate possession.</p> <p>In the action for mesne profits, each defendant will be liable only for the premises in his separate possession. If a joint action is prosecuted, separate damages may be assessed. As to the want of notice that the was filed to avoid the deed under which the defendants claim, although not specified in the bill, it is particularly set forth in the answer. The suit was notice sufficient to put them on inquiry, and by reference to the pleadings, it would have been seen that the title under which they purchased was part of the matter in controversy.</p>

This was an action of assumpsit, tried at the Monroe circuit, in March, 1830, before the Hon. Addison Gardiner, one of the circuit judges.

This was an action of assumpsit, tried at the Tompkins circuit, in January, 1830, before the Hon. Samuel Nelson, then one of the circuit judges. The defendant was sued as the endorser of a promissory note, dated 12th April, 1824, payable 88 days after date, at the Newburgh Branch Bank, at Ithaca. The note was left at bank for collection, and on the day it fell due, there were no funds provided and left at the bank for its payment, either by the drawer or any other person.

This was an action of debt on a bond, in the penalty of $500, bearing date the 31st July, 1816, executed by the defendant to Joseph Bennet, the ancestor of the plaintiffs, whereby the defendant bound himself not to permit a canal or ditch to be cut or dug across certain lands conveyed to him by Ben-net ón the day of the execution of the bond, for the accommodation of any grist-ihill thereafter to be erected ; Bennet being, at the date of the conveyance to the défehdant, the…

Demurrer to declaration. This is an action against the defendant as the endorser of a promissory note. The declaration contains three counts. Held: that though his endorsement was by way of guarantee, it was liable to all the legal consequences of an endorsement. If the defendant in that case was correctly discharged from liability, the defendant here should also be exonerated.

This was an áótion of ejectment, tried at the Albany circuit, in August, 1828, before ■ the Hon. William A. Hube, then one of the circuit judges. The lessor of the .plaintiff and the defendant were in possession of different portions of a farm, which, in 1768, was granted by lease in fee, subject to rent, by Stephen Van Rensselaer to Adrian Bradt; each paid half of the rent,- and had done so ■for 15 or 20 years.

This was an action of assumpsit, tried at the Brie circuit, in April, 1830, before the Hon. Addison Gardiner, one of the circuit judges. i The declaration contained a count on a promissory note, and also the money counts.

Error from the Yates common pleUS. Laine Stied Wells in án action of slander, for charging him With having stolen a barrel of pork from Otie William Babcock.

Motion to set aside a report, of referees. The only questions arising on this application were whether the referees had acted on competent evidence, and whether they had done right in refusing to allow interest on the demand of the plaintiffs. The intestate had erected a vestry room for the defendants, for which he was to receive about $700.

Error from the Dutchess common pleas. Dutcher sued Tallman for a false representation in the sale of sheep; and the trial of the cause proved his case. The defendant then called one Losee as a witness, who was present at the sale, and prove a state of facts which shewed that if such representation was made by the defendant, it was subsequently waived by the plaintiff.

Demurrer to declaration. The declaration states that the defendants were trustees of school district number one, in the town of Oswegatchie, in the county of St. Lawrence, at the commencement of the suit, viz. in August, 1829 ; that on the first Monday of December, 1822, W. Hubbell, C. D. Raymond and J. Shead, were trustees of the said district, and so continued until the 5th May, 1823, when J. Shead, H. Lum and A. Hemmenway were elected, and became trustees of the district,…

Error from the Rensselaer common pleas. This cause was tried in the Renssalaer common pleas on appeal from a justice’s judgment. Lansingh sued Earing before the justice and recovered a penalty of five dollars for not turning out to the right of the centre of a road on which they were travelling in their waggons, in opposite directions.

This was an action of false imprisonment, tried at the Monroe circuit, in March, 1830, before the Hon. Addison Gardiner, one of the circuit judges. The defendant, as under sheriff of Monroe, on the 21st January, 1829, arrested the plaintiff on a capias ad respondendum, at the suit of one Loder, returnable on the third Monday of February, then next. The plaintiff applied to his brother, H. 0. Bronson, to give bail to the sheriff on the arrest.

This was an action on the case for debauching the servant of the plaintiff per quod servitium amisil, tried at the Putnam ■circuit in April, 1830, before the Hon. James Emott, late one ■of the circuit judges. The female seduced was asked, on her examination as a witness, whether or not the defendant, previous to having carnal knowledge of her, promised her marriage.

<p>In covenant or debt, the plea of non est factum only puts in issue the giving of the deed, and it is not necessary in such a case for the plaintiff to prove the averments or breaches contained in his declaration; the plea admits all the material averments.</p> <p>Where, in a justice's court, to a declaration on an appeal bond, containing all the necessary averments to charge the defendant, the defendant pleaded that he never gave such a writing, it was held, that the above rule applied, and that the plaintiff was bound to prove only the execution of the bond.</p>

Error from the Montgomery common pleas. Garlock sued Geortner in a justice’s court, and declared against him specially, that on the 24th November, 1827, on the settlement of an action of slander which he was prosecuting against Geortner, the latter agreed to pay him $50 for his damages, and to pay the costs of the suit; that Geortner drew a note for about $50, payable to the plaintiff, or to him or order, or bearer, with interest; which note he alleged to be then in the…

<p>A justice of the peace who grants an adjournment to a plaintiff not entitled to it, and subsequently renders judgment, and issues execution, on which the property of the defendant is sold, cannot be sued as a trespasser.</p> <p>Where a justice acts without acquiring jurisdiction, he is a trespasser; but having jurisdiction, an error in judgment does not subject him to an action; he entitled to the protection afforded to a judge of a court of record.</p>

Demurrer to declaration. The action is slander. The declaration, after stating by way of inducement that on the 23d May, 1826, the plaintiff was appointed by the president of the United States a commissioner on the part and behalf of the United States, as the general protector of the Indian tribes, to attend a treaty to be held between the. proprietors of the pre-emption right to certain lands held by Indians in the state' of New-York, and those Indians under the sanction of…

Error from the Onondaga common pleas. Folts sued Huntley in a justice’s court, and declared in covenant on certain articles of agreement, bearing date 7th June, 1814, executed under seal by the parties, which, after reciting that Huntley, for the benefit of a saw-mill erected by him, had diverted the water of the Limestone creek, along the bank thereof, on the land of Folts, proceeded as follows: “ Now therefore, in consideration and upon condition of the payment of the rent…

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

Error from the Onondaga common pleas. Share sued Alderman in a justice’s court, and declared against him in trover for taking certain property, and converting the same to his use. The defendant pleaded the general issue; the cause was tried before the justice, and judgment rendered for the plaintiff.

<p>Where, in a suit by an endorsee of a promissory note, the defendants plead, ed a set off, avering that the note was the property of the payee, that the plaintiff was a mere nominal party, and that the note was transferred to-him for the purpose of depriving the defendants of their set off; and the plaintiff replied simply, that the note was Ms property, and not the property of the payee, without traversing the corrupt transfer of the note, it was held, that by the pleadings the plaintiff was to be considered as having 'admitted the corrupt transfer of the note, and the existence of the set of. And it was further held, admitting the plea to have been interposed previous to the revised statute going into effect, that the plaintiff having taken issue upon it, he was precluded from objecting that a plea of set off was not allowable-</p> <p>It seems, that in an action by an endorsee of a promissory note, commenced previous to the revised statutes, the defendant may avail himself of a set off against the payee, when, by the pleadings, the very right of the plaintiff to the note is denied; as where the transfer is charged to have been fraudulent with the view of defeating the set off.</p>

Demurrer to replication. The plaintiffs declared on a bill of exchange, drawn by one Nathan Graham, on the defendant, and accepted by him. The defendant pleaded actio non, because the bill of exchange was accepted by him without any consideration passing between him and the drawer, of which the plaintiffs had notice.

Error from the Otsego common pleas. Tracy sued W. & A. Moore before a justice of the peace, and declared against them in an action on the case, charging them with having entered into a conspiracy with one John Van Valkenburgh, a person destitute of property, to the following effect: That Van Valkenburgh should buy and obtain of the plaintiff, or of any other person of whom he might obtain the same, various articles of goods and chattels, under the pretence of a fair and bona…

Error from the Clinton common pleas. Platt sued Sherry in a justice’s court, in an action on the case', for malfeasance as a constable, and the cause was removed by appeal into the. common pleas.

Certiorari in case of insolvency. Hurst presented his petition in May, 1830, to a commissioner, to be discharged as an insolvent debtor from the payment of his debts. On the day appointed for his creditors to shew cause, viz, in August, 1830, one of them appeared and objected to his discharge, on the ground that in the account of creditors exhibited, the consideration of the debts stated to be owing to several of them was not set forth.

Demurrer to replication. The action is debt, and the declaration contains three counts.

This was an action of ejectment, tried at the Wayne circuit in January, 1826, before the Hon. Enos T. Throop, then one of the circuit judges. This action was brought since the 1st January, 1823, for the recovery of 125 acres, part of lot No. 8, Galen, in the military tract. The lessors of the plaintiff shewed title to the lot under Daniel McLean, the soldier, in whose name the patent issued, who died in 1782.

This was an action of assumpsit, tried at the Dutchess circuit, in November, 1830, before the Hon. James Emott, then one of the circuit judges. The action was brought to recover a sum of money lent to the defendant in February, 1825, by the guardian of Mrs. Palmer, from the funds of his ward. On the 28th June, 1826, Mrs. Palmer having arrived of age, accepted from the defendant his note for $634, being the amount loaned in 1825, with the interest thereof.

<p>A writ of right cannot be sustained by a devisee upon the seisin of his testa, tor; and accordingly a count by a devisee claiming the premises upon the seisin of the devisor was adjudged upon demurrer to be bad.</p> <p>Leave to amend, however, was given upon the usual terms.</p>

<p>Error from the Munroe common pleas. ' Tucker and Sleight sued the trustees of the village of Rochester for work done by them in publishing in a daily newspaper an abstract of the receipts and expenditures of the treasurer of the village for the year ending in May, 1828 ; they were employed by the treasurer, and the corporation refusing to pay their bill, they brought their suit in the C. P. of Monroe, were they were nonsuited.</p> <p>insisted that the treasurer being required by the charter of the village to publish the abstract, was bound to do so at his own expense ; or if he had a claim against the corporation, to be reimbursed for the expense incurred, he must present it as a charge in his account, not having authority to contract debts, for the payment of which the corporation could be made liable.</p>

This was an action of assumpsit, tried at the New-York Circuit in December, 1829, before the Hon. Ogden Edwards, one of the circuit judges. The suit wás by the second endorsee of a promissory note against the' maker; the note was for $650, payable to the order of H. Kennedy, endorsed by him to T. Ash, and by Ash to the Franklin Bank; it was given in renewal of a previous note for $1200, upon which, when it fell due, $550 were paid.

This was an action of assumpsit, tried at the Delaware circuit in September, 1829, before the Hon. James Emott, then one of the circuit judges. The suit was against the defendant, as sheriff of the county of Delaware.

Certiorari relative to the laying out of a road. Twenty freeholders of the town of Carmel made and subscribed a certificate of the necessity and propriety of laying out a road, applied for by one Abraham Everitt, which was delivered to the commissioners of highways of the town, who, after an examination of the route of the proposed road, determined that it was inexpedient to lay out such road and refused to lay out the same.

This was an action of assumpsit, tried at the New-York circuit, in October, 1829, before the Hon. William A. Dher, then one of the circuit judges. The action was on a promissory note for Si000, dated the 22d August, 1809, made by Bliss, as one of the firm of “ Hastings, Etheridge & Bliss,” in the name of the firm, payable to the plaintiff 30 days after date. The defendants pleaded the general issue and the statute of limitations.

This was an action of assumpsit, on a policy of insurance against fire, tried at the New-York circuit in October, 1829, before the Hori. Ogden Edwards, one of the circuit judges.

Error from the New-York common pleas. The plaintiffs declared as the holders of a check, dated the 19th November, 1825, for $200, drawn by the defendant on the Dutches County Insurance Company, payable to Joseph F. White or bearer ; the declaration also contained the common money counts. The drawing of the check, its presentment and dishonor were admitted.

<p>An action of covenant will not lie for breach of the covenant of quiet enjoy. ment, although the grantee has been prosecuted in trespass by a third person claiming title and a recovery had against him, unless the plaintiff in the action avers and proves, that such third person before, or at the date of the covenant, had lawful title, and by virtue thereof, entered and ousted the plaintiff.</p> <p>A record of a judgment stating a recovery in trespass for $102,64, cannot be given in evidence in support of an averment in an action for breach of covenant for quiet enjoyment that the recovery was $600.</p> <p>Where it is sought to connect a suit before a justice, dismissed by reason of a plea of title, with a suit subsequently prosecuted for the same cause in the common pleas, the written proceedings before the justice must be produced; the facts cannot be established by parol.</p> <p>The admissions of an agent of a party not acting within the scope of his au. thority, are inadmissible as evidence; the agent being a competent witness, must be called to testify.</p>

Demurrer to declaration. This suit is for the breach of a covenant of warranty, contained in a deed of land conveyed by the defendant to the plaintiff.

This was an action of assumpsit, tried at the New-York circuit in June, 1829, before the Hon. Ogden Edwards, one o f the circuit judges. The suit was against the defendant as the endorser of a promissory note given by one L. Badger for $646,82, dated the 1st August, 1827, payable four months after date. The necessary steps were taken to charge the defendant as endorser.

Error on certiorari. Youngs, as an overseer of highways of the town of Oysterbay, commenced a suit before a justice of the peace against Fleet for obstructing a highway.

<p>An action on the case lies against a party who wrongfully and willingly sues out an execution on a judgment which he knows to be paid and satisfied, whereby the property of the defendant is taken and sold; and to support the action it is not necessary to allege or prove actual malice.</p> <p>Nor is it necessary to prove the precise day of the levy and sale under such execution, when laid under a vidclicit.</p> <p>Where a count in a declaration contains an admission of a fact bearing upon the right of action, and a nolle prosequi is entered as to such count on the trial, it is considered as stricken out of the declaration, except so far as it is referred to in other counts.</p> <p>A party to the record, generally is responsible for whatever is done in his name ; thus the assignor of a judgment is liable, if execution be issued upon the judgment after the same is satisfied.</p> <p>Where a party agrees to accept a specific article of property in payment of a judgment, and it is delivered and accepted, such acceptance is an appro, priation in satisfaction, in judgment of law.</p> <p>The fact of a party’s receiving the surplus of the avails of his property sold under an execution illegally issued, does not deprive him of his right of action, for the unlawful suing out of the process.</p>

This was an action of assumpsit, tried at the New-York circuit in June, 1829, before the Hon. Ogden Edwards, one of the circuit judges. The suit was brought to recover monies paid by the plaintiffs as the acceptors of a bill of exchange for $1250, drawn on them by the defendants. The plaintiffs proved the payment of the money, and that at the time they had no funds belonging to the defendants, or either of them.

Error from the Clinton common pleas. Marshall sued Durkee before a justice, and declared against him on a due hill in these words: “ Due Paul Marshall five dollars and twelve cents in candles, at 16 cents per pound,” and also for goods, wares and merchandize, sold and delivered to the defendant. The justice gave judgment for the plaintiff for $7,67 damages, besides costs.

Error from the Monroe common pleas. Meech sued Smith in a justice’s court, and declared against him in assumpsit on the common counts; the defendant pleaded the general issue, and gave notice of set off, and that he would claim damages for the non-performance of a contract relative to the transportation of a quantity of flour, &c. The plaintiff recovered a judgment for $37,64, besides costs, and the defendant appealed to the Monroe common pleas.

This was an action of assumpsit, tried at the Washington circuit in June, 1828. The plaintiff proved that $45 were passed to the credit of the defendant, on one Fish becoming bound to a creditor of the defendant to that amount, and that Fish thus became bound to satisfy a demand of the plaintiff against him, which had been left with the defendant as an attorney for collection.

This was an action of assumpsit, tied at the Jefferson circuit in June, 1829, before the Hon. Nathan Williams, one of the circuit judges. The plaintiffs’ demand consisted of an account of eight items for 9 barrels of beer, sold to the defendant at various times between the 31st May, 1.819, and 10th December, 1822, of which last date the charge was for one barrel of beer, |6 ; the charge immediately preceding the last was in April, 1821. The account was duly proved.

Motion to set aside report of referees. Joseph D. Evernghim and his brothers, James and Gilbert, were partners in trade, as merchants conducting business at the village of Rochester under the name and firm of Evernghim & Co.; Joseph resided in New-York, James in Canandaigua, and Gilbert in Rochester; Gilbert having the principal management of the business.

<p>On a motion for a new trial, on the ground of newly discovered evidence, a case of what transpired on the trial must be presented.</p>

This was an action of ejectment, tried at the New-York circuit in October, 1828, before the Hon. Ogden . Edwards, one of the circuit judges. Felix Cunningham an Irishman, became a naturalized citizen of this country in 1806, and in 1821 died without issue, seised and possessed of a house and lot in the city of New-York, the premises in question, purchased by him after his naturalization.

Error from the Monroe common pleas. Ring sued Grout before a justice, and declared against him in trespass for taking certain goods and chattels; the defendant pleaded, acknowledging the taking of… Held: and Burd, Churchill and Humphrey elected trustees, and the defendant elected collector. The plaintiff objected to the precept as being too vague and uncertain in the description of the bounds of the district, but the court adjudged it to be sufficient.

Error, from the New-York common pleas. Drake sued Reed in the common pleas of New-York in the term of August, 1830, and declared in debt on bond, bearing date the 16th June, 1830, for the sum of $500. The defendant pleaded, 1. non est factum; and 2.

<p>Demurrer to pleas. The declaration is in debt on recognizance of bail, in a suit of the plaintiffs against one I. Sunder- , lin. The defendant pleads 1. That a capais ad satisfaciendum was issued in the original suit, and delivered to the sheriff of Yates, and that from the time of the delivery thereof until its return, Sunderlin, the defendant in the original suit, was within the bailiwick of the sheriff of Yates, of which the sheriff had notice, and who at any time might have arrested him, but the sheriff did not, and would not make any endeavors to arrest Sunderlin upon such ca. sa.; and 2. That while the sheriff had the ca. sa. in his possession, he saw and conversed with Sunderlin, and had him entirely within his power, and yet falsely and fraudulently returned upon the ca. sa. that he could not find the body of Sunderlin within his bailiwick. The plaintiffs demur generally to both pleas.</p>

This was an action of trover, tried at the Chenango circuit, in December, 1829, before the Hon. Samuel Nelson, then one of the circuit judges.

An order of filiation was made by two special justices of New-York, adjudging Roy to be the father of a bastard child, and he appealed to the sessions.

This was an action of ejectment, tried at the Ontario circuit in January, 1830, before the Hon. Daniel Moseley, one of the circuit judges. The plaintiff produced the record of a deed of the premises in question, from G. Wilmarth to the lessor of the plaintiff, David Gould, junior, bearing date the 1st December, 1802, recorded the 27th October, 1828, upon the certificate of the proof of the deed by John Boughton, one of the subscribing witnesses.

<p>If an alien holding land under the provisions of the acts of the legislature of 1802 and 1808, authorizing aliens to purchase and hold real estate, dies intestate, his lands descend to his heirs, although they be aliens: if he dies without heirs, the lands escheat; but until office found, the state has no right to enter and take possession, and a grant of the lands before office found, whether the legislature act or otherwise, conveys no title.</p>

This was an action of ejectment, tried at the Queens circuit, May, 1830, before the Hon. Ogden Edwards, one of the circuit judges. The premises in question are low lands lying on the west side of a stream in the town of Oyster-bay, in the county of Queens, called Shew, or Beaver Brook, which are overflowed by the waters of a mill-pond of the defendants, who own a mill, situate on the east side of the brook, lower down the stream than the lands of the plaintiff.

This was an action of ejectment, at the New-York circuit in June, 1820, before the Hon. Ogden Edwards, one of the circuit judges.

This Was an action on the case, tried at the Cayuga circuit, In January, 1830, before the Hon. Daniel Moseley, one of the circuit judges. Held: as such commissioners, executed by one Samuel Seward; that the plaintiff bid in the premises for the sum of $80, paid the money, and received the deed of the commissioners; that at the time óf the sale the defendant, in order deceitfully and fraudulently to induce the plaintiff to purchase the premises, falsely and fraudulently…

<p>A sale is good, had under an execution issued by a county clerk on a ti anscript of a justice’s judgment, although made after the return day.</p> <p>A transcript, although in bad English, if intelligible in its essential parts, will . be held good.</p>

Demurrer to pleas. The declaration is m debt, on bond bearing date 8th May, 1827, in the penal sum of $6000, conditioned for the faithful performance by Symonds of the duties-of collector of village for the year ensuing the date of the bond. The suit is against him and his sureties. There are eight breaches assigned.

Error from the Cnondaga common pleas: Redfield sued Case and two others before a justicé, and declared against them in trover for a quantity of wheat.

This was an action of ejectment, tried at the Essex circuit, in January, 1830, before the Hon. Esek Cowen, one of the circuit judges. The plaintiff claimed to recover lot No. 5 in Legge’s patent, and exhibited the following paper title: 1. A deed of the whole tract from William Legge (described as the nephew and heir at law of Francis Legge, the patentee,) to Joseph Winter, bearing date the 7th November, 1808; 2.

<p>A delivery of property to the vendee, to be put in a marketable condition, and to be paid for thereafter by weight to be subsequently ascertained, is a conditional delivery, and does not pass the right of property to the vendee ; so held, where the owner of a pair of fat cattle contracted with a butcher to sell them to him at a given price per quarter, the butcher to take the cattle, prepare them for slaughtering, slaughter them, take the quarters to market, weigh them, and pay for the cattle the amount the quarters would come to at-$7,50 per 100 wt„ and where the cattle were taken from the possession of the butcher by a creditor of his under an execution for an antecedent debt.</p> <p>Whether the rights of the vendor in such a case would be the same, where a new credit was given to the vendee in consequence of the possession of the property by him? Quere.</p> <p>In the sale of personal property, where any thing remains to be done before the sale can'be considered as complete, whether to be done by the vendee or the vendor, as between the parties themselves the right of property does not pass, although the property itself is placed in the possession of the vendee.</p>

Error from the Duchess common pleas. Hurd commenced a suit against Read in June, 1829, on a promissory note for $137,82, dated 2d February, 1819, payable on demand. The defendant pleaded non assumpsit and actio non accrevit infra, &c.; the plaintiff replied, that the cause of action accrued within 6 years before the exhibition of the bill, &c. On the trial the making of the note was proved; on it appeared an endorsement of $32,50, under date of 1st October, 1824.

This was an action of assumpsit, tried at the New-York circuit, in November, 1829, before the Hon. Ogden Edwards, one of the circuit judges. The declaration contained the common money counts, and the pleas were the general issue and payment. On the trial of the cause, the incorporation of the New-York and Sharon Canal Company by the legislature of the state of New-York, and of the Sharon Canal Company, by the legislature of Connecticut, was duly proved.

Motion to set aside a verdict for irregularity in empanneling the jury. The prisoner who was indicted for murder, was put on his trial, at the New-York oyer and terminer, on the 22d September, 1831. The general panel of petit jurors was called over, and a juryman of the name of Robert Smith answered when his name was called.

<p>This was an action of assumpsit tried at the New-York circuit, before the Hon. Ogden Edwards, one of the circuit judges.</p> <p>The action was brought to recover the damages upon three bills of exchange, drawn by the defendants, and protested for non-payment, ihe principal and interest of the bills having, after protest, been paid, partly by the drawers and partly by a surety of the drawers, with an express reservation of the right of the plaintiffs to demand the damages of the defendants, made at the time of the payment by the surety. The facts of the case are as follows: The defendants were merchants, doing business at Mobile, under the name and firm of Thomas N. Niles & Co. and at New-York, under the name and firm of Stratton & Winthrop. In October, 1825, the firm at New-York addressed the plaintiffs, engaging to guarantee the acceptance and payment of the bills of Thomas N. Niles & Co. negotiated by the plaintiffs, to the amount of $25,000, and in December, 1825, John Bloodgood, of Mobile, united in the guaranty, by a separate instrument, at the request of Niles, one of the defendants. Three bills of exchange were drawn by Thomas N. Niles & Co. on Messrs. Stratton & Winthrop, dated, one in January, 1828, for $10,000, and another in February, 1826, for $10,000, and a third in April, for $5000; which, accepted by the house in New-York, were negotiated at the Tombeckbe bank, and subsequently protested for non-payment. In March, 1827, the defendants having made several payments on the bills, Bloodgood, the surety, paid the balance of principal and interest due on the three bills, viz. $9833,74, leaving the damages, viz. $2500, unpaid, and took up all the securities except bill of exchange for $10,000, drawn in February, 1826, which was retained by the bank for the purpose of enforcing payment of the damages against the defendants, the bank agreeing to release Bloodgood from such claim, but refusing to release the defendants, and reserving their right to demand the damages of them. . The judge expressed his opinion that the principal and interest having been paid, an action could not be maintained for the damages upon the protested bills; whereupon the plaintiffs submitted to a nonsuit, with leave to move to set the same aside.</p>

Demurrer to declaration. The declaration is in covenant on an instrument under seal, executed by the defendant on the issuing of warrants by a justice of the peace in several causes, in favor of several non-resident plaintiffs against Traver the plaintiff in this cause, whereby the defendant bound him self to pay Traver any sum which might be adjudged against the plaintiffs inthe aforesaid suits.

Demurrer to declaration. The declaration is in debt on a justice’s judgment rendered in Vermont.

This was an action of ejectment, tried at the Oneida circuit in April, 1830, before the Hon. Nathan Williams, one of the circuit judges.

This was an action of slander, tried at the Herkimer circuit) in March, 1830, before the Hon. Nathan Williams, one of the circuit judges. The words spoken at a public meeting were, you have stolen my wood. All the witnesses examined on the trial testified that they understood the charge to relate to a transaction not felonious.

This was an action of assumpsit, tried at the Genesee circuit in April, 1830. The declaration contained a count for goods sold and delivered, the common money counts, and an insimul computassent. The defendant pleaded the general issue and the statute of limitations. The plaintiff replied a new promise. Choate and Patterson, the defendants, were co-partners as merchants in New-Hampshire, where the plaintiff also resided, and where the defendants have continued to reside.

This was an action of tresspass, quare clausum fregit, tried at the Allegany circuit in May, 1830, before the Hon. Addison Gardiner, one of the circuit judges. The plaintiff proved the cutting and carrying away of a quantity of pine saw logs by the defendant in 1826 from the locus in quo.

This was an action of trover, tried at the Yates circuit, in January, 1830, before the Hon. Daniel Mosely, one of the circuit judges. The action was brought for the conversion of a horse; the plaintiff claimed to be half owner of him, and shewed a previous possession. The horse was in the possession of the defendant in the summer of 1828, when the plaintiff demanded him, or payment for one half his value.

Error from the Oswego common pleas. Hardy sued Rowe in a justice’s court, and declared against him on ,a justice’s judgment in his favor, against the defendant. The defendant pleaded in abatement, that the plaintiff and himself were both residents of the town of Oswego, and that Oswegowas not an adjoining town to the town of Richland, where the suit was brought.

This was an action of debt for an escape, tried at the Erie circuit, in April, 1830, before the Hon. Addison Gardiner, one of the circuit judges. The suit was for a voluntary escape, suffered by the sheriff, of one Hopkins, arrested on a ca. sa. issued on a judgment in favor of the plaintiff against him; the escape was alleged to have taken place on the I2th June, 1824.

This was an action of ejectment, tried at the Wayne circuit in January, 1830, before the Hon. Daniel Moseley, one of the circuit judges. The lessor of the plaintiff purchased the premises in question, under a statute foreclosure of a mortgage executed by the defendant.

Demurrer to replication. The declaration is in debt for the escape of one N. Smith, arrested on a capias ad satisjiciendum, sued out on a judgment against him in favor of the plaintiff. The defendant pleads, 1. nil debet; and 2. That the cause of action in the declaration mentioned did not accrue to the plaintiff at any time within one year before the exhibiting of his bill, See.

Redemption of lands sold under execution. On the 24th October, 1829, the sheriff of Renselaer, by virtue of two executions against Amaziah Payn, sold at public vendue a tract of land contining about 200 acres, to S. G. Huntington, for $984,80, being the highest sum bidden for the same. The judgments on which the executions issued were docketed, one on the 23d February, 1823, and the other on the 9th August? 1728.

The defendant moved to strike out two counts in a declaration, in an action of ejectment commenced under the revised statutes, on the ground of the pendency of a previous action of ejectment for the same premises, in which the same persons named as plaintiffs in those counts were named as lessors of the plaintiff in the previous action, which is in the name of James Jackson, as nominal plaintiff, according to the former practice.

This was a motion for a mandamus to the judges of the superior court of the city of New-York to amend a bill of exceptions, settled by them by striking out parts thereof, and inserting matter proposed by the plaintiff in error, and rejected by them.

Motion to set aside verdict for irregularity in making up the circuit roll. The declaration filed, and also the copy served on the defendant, contained a count on a promissory note for $320. The declaration set forth in the circuit roll described a note for $325, which was according to the fact of the case; the note produced on the trial being a note for $325.

A bridge over a stream called Abraham’s creek, in the county of Columbia, Which stream separates the city of Hudson from the town of Stuyvesant, having fallen down or become unsafe to pass and repass, the relator applied to this court for a mandamus commanding the commissioners of highways of Hudson and Stuyvesant to rebuild the same.

Allegation of diminution on a writ of error. In this case a writ of error to the superior court of the city of New-York was sued out and returned. On the return coming in, the plaintiff alleged diminution, served a copy of the allegation on the defendant in error, entered a rule in the common rule book, awarding a certiorari to bring up the matters alleged in diminution, sued out the certiorari, and obtained a return.

Amendment of case. A motion was made to refer to the circuit judge, before whom this cause was tried, the case settled by him, on the allegation that facts had been embodied by him not insisted on by either party, and that a charge to the jury was stated to have been delivered, when in fact no charge whatever had been delivered, although in the progress of the trial the propositions set forth in the charge had been advanced by. the judge in the hearing of the jury.

<p>After one stipulation, a defendant is not bound at his peril to accept a second to proceed to trial, although furnished with the excuse of the plaintiff; he may insist upon submitting the sufficiency of the excuse to the court.</p>

J. King moved to set aside a capias for irregularity, on the ground that a capias, issued in October last, was subscribed with the names of Fairlie, Hubbard and Paige as clerks, Mr. Fairlie having died previous to that time; and if unsuccessful in that motion, he then asked to mitigate bail.

<p>Motion for mandamus. Groat, as president of a court martial, issued a warrant directing the collection of a military fine of $4 from H. Hammond, a member of the society called Shakers. The warrant was executed by Enos, a constable, by levying upon property belonging to the society of Shakers, -and two of its members caused the property to be replevied by plaint returnable in the Albany common pleas. Groat and Enos being made defendants in the replevin, moved the court to set aside the plaint, which they refused, on the ground that It was not shewn that Hammond had been summoned to appear before the court martial to shew cause against the fine.</p>

‘ Motion for writ of prohibition. At a special town meeting held in the town of De Peyster, in May 1831, it was voted to raise $200, by a tax on the town, for the purpose of enclosing what was called the town house with a fence, and to compíete- the house, The proceedings of the meeting were laid before the board of supervisors of the county, and they passed a resolution to raise the sum voted, by a tax on the town of De-Peyster, and actually assessed the same, and in a…

A suit was commenced by the relator in the common pleas of Herkimer, against J. & H. Miller, by the filing and service of a declaration. J. Miller appeared and pleaded, H. Miller did not appear, and on proof being made that he was an infant, within the age of 21 years, an order was granted by the first judge of Herkimer, on the application of the plaintiff, for the defendant to shew cause in 10 days, why a guardian should not be appointed to appear and defend for him.

Motion to set aside attachment against property of an absent debtor.

On the fifteenth day of December, 1829, the relator obtained a judgment on verdict in a justice’s court against one Brown. On the twenty-fifth day of December, an agent of Brown proceeded to the residence of the justice, for the purpose of giving notice of an appeal to the Ulster common pleas.

Pease on the 14th December, 1831, who claimed to be a commissioner of deeds for the town of Utica, in the county of Oneida. The clerk denied that Pease was a commissioner on the day that he took the acknowledgment of the deed, and the question presented to the court, is whether he was or was not a commissioner. On the 20th November, 1827, Pease and one Barnum were appointed commissioners.

Question of costs in an action of trespass on lands, where the recovery was less than $50. The opinion of the court is referred to for the facts of the case.*

Costs against party in interest. Colvard was sheriff of Albany, and one of his deputies, by virtue of an execution in favor of Sager and Chesebrough, against one Clark, levied on the property of Clark.

Distribution of estate of absconding debtor. P. S. Sinnott sued out an attachment against I. Negus as an absconding debtor.

During the last January term of this court the plaintiff commenced a suit against the defendant, on a recognizance of bail. The defendant had only seven days after the service of the declaration in the two first weeks of term, within which to surrender the principal, but did not avail himself of that privilege; the plaintiff proceeded in the suit, obtained judgment against the bail, and issued an execution.

Motion to set aside a certiorari, because allowed by a commissioner. The certiorari issued to bring up the proceedings of the trustees in reference to the imposition of a village tax. The trustees made a return to the certiorari, and on the 22Ó. day of December last, the plaintiffs obtained a rule for a supplementary return, although opposed by the defendants, who now applied .to quash the certiorari, because allowed by a commissioner, and not by the court.

<p>Costs on appeal. Van Zandt, the relator, recovered a judgment in a justices court against one Forsyth, for $46,25 damages, and $3,95 costs. Forsyth appealed to the Herkimer common pleas, and on the trial in that court, a verdict was rendered against him for $40 damages. . The common pleas awarded full costs to the appellant, on the ground that the amount recovered before the justice had been reduced ten dollars, and more. The appellee now moved for a mandamus, directing the common pleas to vacate the rule granting costs to the apellant, and to award costs to the appellee.</p>

In this case, the plaintiff at the last term obtained judgment by default, for the omission of the defendants to bring on a motion to set aside a report of referees. The cause was moved by the plaintiff as one entitled to preference in the hearing, under the provisions of the statute relative to suits against corporations.

Costs on discontiuance. After a rule for reference, the plaintiff entered a rule in the common rule book for discontinuance, with costs against the plaintiff, and served a notice of such rule on the defendant, who, after receiving the same, taxed his costs and demanded payment, and the plaintiff refusing to pay, the defendant noticed the cause for hearing before the referees; whereupon the plaintiff obtained an order staying the proceedings, and now asked for a rule making…

It was objected that the affidavit was made by the attorney, and although he stated that the witnesses sought to be examined were material to the defence of the action, he did not add as advised by counsel; and it was also objected that laches were imputable to the defendant, the cause having been at issue since the 23d January last, and three special terms having since elapsed.

- Motion for a commission by the defendant. ' The plaintiffs made an affidavit, stating the general nature of the matter in controversy, and swearing that they did not believe that the witnesses sought to be examined by ,the defendant, could testify to any thing material to the defence of this cause.

On the third day of the last March circuit in Rensselaer county, the defendant prepared papers for .this motion. In his affidavit he stated that the venue was laid in Rensselaer, that issue was. joined in June, 1830, that the circuit court was in session, and that the cause had not been noticed for trial.

The question in this case was, whether an affidavit to found a certiorari could be sworn to before a justice of the peace.

No certiorari was presented to the commissioner, nor did he endorse an allocatur upon such writ. A certiorari, however, was issued, and the justice made a return thereto. The defendant in error moved to quash the certiorari for the want of an allocatur thereon, which the C. P. refused to do, and a mandamus was now asked for.

The relators commenced a suit by declaration' against two defendants. The declaration was served on only one of them, and the plaintiffs proceeded in the suit in the same manner as they would, have done had the suit been commenced by capias, and one defendant had been returned taken, and the other not found. The court below set aside the proceedings, and a mandamus was now asked for to reinstate them.

On the application of Robert Karr a summons was issued by Judge Seward for the relator, David Karr, to shew cause why Robert Karr should not be put in possession of certain premises as landlord, on the allegation that the relator was his tenant, and held over after the expiration of his term. David Karr denied that he held over as tenant of Robert Karr, and a jury was summoned to try the question.

It was objected that notice was not given until ten days after the circuit, and that the defendant had offered nd excuse for the delay; and in support of the objection the anonymous case in 5 Wendell, 82, was relied on, where, notwithstanding the frequent recurrence of the special terms, Mr. Justice Marcy said the court would require an excuse to be shewn, if motions were not made at as early a day as with ordinary diligence they might be presented.

Motion to set aside proceedings for irregularity. Issue was joined in this case on the 23d December, 1830. ' By a stipulation between the parties, the cause was referred to referees on the 5th February thereafter.

Robert was a creditor of the intestate and demanded a sum as due to him exceeding $200. The matter in controversy wps referred to three disinterested persons, in conformity to the provisions of the statutes, 2 R. S. 88, § 36. The referees, after hearing the parties, made a report in favor of the creditor or claimant for $76,07.

The commissioners of highways of the town of Brooklyn, having laid out a new road and caused the damages of the owners of the lands over which the road was laid to be assessed by a jury, certified their doings to the surpervisor of Brooklyn, stating the amount of the damages and of the charges and expenses consequent upon the laying out of the road ; which certificate was laid before the board of supervisors of the county, for the purpose of being audited,, levied and…

At the last Rensselaer circuit, the trial of this cause was put off on the usual terms, on the application of the defendants, founded upon the nonattendance of a material witness, who had been subpoenaed. The plaintiffs charged in their bill all the costs of obtaining and suing out a commission to take the testimony of foreign witnesses, the interrogatories, depositions, and expenses of returning the commission.

The common pleas of Rensselaer quashed an appeal from a justice’s judgment, rendered in Rensselaer county, on the ground that it was allowed by a commissioner residing in Albany.

Motion to set aside report of referees. On the day appointed for the hearing, two only of the referees appeared, and adjourned the hearing to a future day; to which adjournment the defendant objected. On the adjourned day the defendant refused to appear; the referees all attended, heard the proofs of the plaintiff, and made a report in his favor; which the defendant now moved to set aside.

Motion to set aside default for irregularity. This suit was commenced by the filing and service of a declaration on the thirteenth day of January. On the second day of February the defendants obtained an order enlarging the time to plead until the sixteenth day of March. On the tenth day of March the plaintiff obtained a vacatur of the order, and about noon of thé same day served notice thereof on the defendants. The tenth of March was Saturday.

Motion to quash a bill of exceptions, because signed by the judges in vacation and when they were not together. The answer to which, was, that the bill had been prepared long since, and a copy served on the defendant in error, that it had been presented in open court, but refused to be signed by the judges of the common pleas, solely on the ground that the party was too late in presenting it, and that now there was no allegation that it was erroneous or incorrectly made up.

Motion to withdraw books, deposited under a rule of court in the clerk’s office of the county where the venue was laid. The plaintiff opposed the motion, urging that the books should remain so that they might be used at the trial.

<p>Error from the supreme court. The bank of Michigan sued Williams in the supreme court, as the maker of a promissory note for $2755,51, bearing date 28th June, 1825, payable to “ (The President, Directors and Company of the Bank of Michigan,” on demand. At the circuit the note declared on was produced, the making of which was admitted; on it was an endorsement under date of 10th July, 1826, stating that $170,87, the interest thereof up to that time, had been received. An admission of the defendant that he had been president of the Bank of Michigan was proved, and it was then agreed that a verdict should be entered for the plaintiffs for the sum of $3031,T£7, subject" to the opinion of the supreme court on a case to be made, and that the acts, laws and ordinances of the congress of the United States, relating to the territory of Michigan, and the laws of the territory, including the act of law purporting to have been passed 19th December, 1817, entitled “An act to incorporate the stockholders of the bank of Michigan,” should be considered as forming part of the case, and might be referred to on the argument of the case as contained in the printed volume of the laws of the territory in ordinary use ; liberty being given to either party to turn the case into a bill of exceptions or special verdict. The case was argued in the supreme court, and judgment given for the plaintiffs. For a statement of the case, the arguments of counsel and the opinion of the supreme court, see 5 Wendell, 478 to 490. The cause here was argued by</p>

Error from the supreme court. Beardsley sued Maynard in the supreme court for a libel, published in a newspaper in the village of Utica, on the 20th June, 1828, charging him with official misconduct as district attorney of the United States for the northern district ofthe state of New-York. The libel was proved, and that the defendant was the author thereof.

Error from the supreme court. Hendricks, as endorsee, sued Cram, as the endorser of two promissory notes, made by one Gomez. The notes amounted, together, to upwards of $3000; were given in September, 1825, payable four months after date. The consideration of the notes was rum sold by Cram to Gomez. About 3 months before the notes came to maturity, Cram, the payee, employed a broker to raise money for him upon the notes, and delivered them to him, endorsed in blank.