Volume 8 — Cowen's New York Reports

On certiorari to John Willard, Esq., one of the judges of the court of 0. P. of the county of Washington.

<p>Though a note discount-©d ss security for money lent bers1 of aTassociation constraming actpi void1- yet’\he contract ofioan orTwhich00^ action lies by the lenders to recover it of</p> <p>Insurance _ rorporated by (sess 62, p. 47,) may pe^sonTsec"" rity-</p> <p>ing act, (2 r l. merely the°sm curity; not the loama0t °f</p> <p>Where money is advancedupon aeonmdlmhpro£ utvm merely, may'bfrecovered hack by an action proceeding upon a oftlm™ntraet.</p>

<p>Words used personal* property, and inaisvendee basth° ^“warranty* should be sub-jury; who are ^ether^They were a warranty, especially where the words have no technical meaning.</p> <p>The criterion is the intention and understanding of the parties.</p> <p>E. g. where the vendor said on the sale of a colt, Tie is sound, and wiU make a fine horse : held, that these words should go to the jiiry; especially as the vendee had afterwards declared that there was no warranty. ■</p>

<p>Debt on bond for the, performance of an award; tried at the St. Lawrence circuit, July, 1842, before Nelson, Oh. ’ J ’ ’ ’ Judge.</p> <p>*At the trial, it appeared that the award was made and published on Sunday. The defendant, therefore, objected that it.was a nullity; but a verdict was taken for the plaintiff," subject to the opinion of the Supreme Court, upon the point,</p> <p>cited Cro. Eliz. 485; Oro. Jac. 59, 279, 496; 1 Str. 702, 388; 1 Taunt. 131; 10 Mass. Rep. 312; 1 W. Bl. 496, 526; Kyd on Aw. 136; 15 John. 119, 179; 2 Con. Rep. N. S. 541; and 1 Root, 98.</p> <p>cited 3 John. 367; 15 id. 177; 12 id. 178; 20 John. 140 3 East, 155; 8 East, 547; 1 H. Bl. 628.</p>

<p>A premias¡0Jne<?°byWR they B" added Reilgi ous Society, tion. Held p^rsonau/Ti”</p> <p>gold a church bell to ®'arranty,7hat it shouid^not year; and that ^.1tthidid time, he would having 'crack-e.d wi7thí? time, held that he was not liout notice, and cast™*t0 16</p> <p>In an action on a premiasory note, it pg^i o^total failure of con* sideration,may be given in ^e^maker b£ mitigate or defeat a recovery; as fraud a breach of warranty m respect to the -consideration.</p> <p>AS seems that .fraud in the consideration may be given in evidence under the general issue, without notice. . .</p> <p>Whether it is the same as to a breach of warranty ? Quere.</p>

On error from the C. P. of Jefferson. The action in . the court below was assumpsit by Hatch against Adams and otkerSi Be declared in two special counts : ■ one on a contract by the defendants to hire him one year at $8 per week, he boarding himself; the other at $6 50, he being boarded: each count averring performance. The declara- * ° 1 also contained the common count for work and labor.

<p>On demurrer to the declaration. The first count set forth an indenture of lease made on the 5th day of April, 1825, in th.e testator’s lifetime, between him and the plaintiff, dated on the ■——day of April, 1825, by which the testator did demise, grant and to farm let unto the plaintiff a certain lot of ground described, for the term of 10 years from the 1st day of May, 1826, with a covenant by Delfín, that the plaintiff should have possession on that day, and another covenant that he should quietly possess during the term, with various covénants as to buildings and erections by the plaintiff, and his compensation by the testator, the use of a well for the plaintiff, insurance against fire, by the lessor, and for renewal of the lease, &c. Breaches, that Delvin was not, when he executed *the indenture, or since, seised, nor had he then or since any interest authorizing him to demise, nor good right, nor lawful authority to demise; that the plaintiff could not obtain possession on the 1st of May, 1826; but was, by the rightful -owner or owners of the premises, or some part or parts thereof, hindered and prevented from entering on that day; that he did not quietly enjoy during the term or any part of it; but, on the contrary, was, by the rightful owner or owners of the premises, or of some part or parts thereof, hindered from entering when the demise commenced; and had been by the owner or owners kept out of possession; and prevented the fulfilling of his covenants in the lease; and that the use of the well had not been furnished, &c-</p> <p>The second count recited in hcec verba an indenture of the like import as that mentioned in the first count; but which contained no express covenants, as to title, possession or enjoyment. Several.covenants, having no relation to the title, were contained in the indenture, as in the first count, and also to pay rent and taxes, leave in good repair, &c. Breaches, as in the first count.</p> <p>The defendants craved oyer upon both counts. This was answered by setting forth the indenture recited in the second count; whereupon,</p> <p>Special demurrer and joinder.</p> <p>The demurrer assigned as cause, among others, that the indenture should have been described as without date; and also the unnecessary matter in the declaration. Also as to the "first count, that it varied from the indenture in setting fourth the covenants- as to the title, the indenture 0 itself containing none. °</p> <p>Loading a declaration with unnecessary matter is always discountenanced by the courts. (1 Saund. 233, note (2.)</p> <p>The lease imports no covenant of seisin or power to demise, or to put the plaintiff in possession. The words de mise and grant are the only words which can be relied on, and these import no more than a warranty or covenant of *quiet enjoyment. (Co. Lit. 384, a. note 832. 2 Caines, 188.) Such a covenant respects the possession only. It is equivalent to' a warranty, which is not broken without eviction. (1 Saund. 322. 15 John. 645. 2 B. & P. 14, note (a). 2 Saund. 181, b. note.) Here has been no eviction, or any thing equivalent. But if a covenant of power to convey be implied,, the declaration should have shown by whom the plaintiff was hindered from his possession ; and a possessory right in another at the time the plaintiff was entitled to his possession. This should especially be so where the defendants are executors.</p> <p>At all events, it should have shown that the adverse title existed at or prior to the date of the demise; that it was derived from or under the lessor; or, at least, that it was not derived from or under the plaintiff himself. (2 Saund. 177, 181, a. and note (10.) Woodf. L. & T. 312 Shep. Touchs. 167. Cro. Jac. 315. 4 T. R. 617. 8 T. R. 278. 2 B. & P. 14, note b.)</p> <p>The pleader was bound to set forth the indenture of lease according to its legal operation. (1 Chit. PI. 802, 3.) Here, we say, is an implied covenant; and there is no better way of declaring upon it than to set forth a covenant for something, as of power or title; and then, if such be the effect of the implied -covenant, the declaration is supported. (1 Chit. Pl. 302, 353, 354.) ■ Mere surplusage in a declaration is not a subject of special demurrer. (1 Chit Pl. 232, 3, 4.)</p> <p>The only real question in the case is, whether the plaintiff has any remedy at all. This lease was to commence m Possesslon some time after the date; yet the -argument is, that, without entry and ouster, no action lies. Then all a lessor need do, is tb keep his lessee entirely out of possession from the beginning; and this implied covenant is not broken. We say here is .an agreement that the lessee should have the property from .the 1st of May. Ho particular Words are necessary to make a covenant. Any words showing the intention are sufficient. (6 John. 49. 20 id. 266. 3 id. 44. 5 Munf. 483. Com. Dig. Covenant, *(a. 2) Day’s fed;) A covenant arises whenever the court 'see ,'it was intended. Holder v. Taylor, (Hob. 12,) is this very case: which will be foundto have been acquiesced in ever since its decision. Hot a case has ever questioned.it. (Com. Dig Covenant, (A. 4.) new ed.)</p> <p>The objection, that no time is shown when the adverse-title began or existed, is not founded in fact. It is denied by the declaration, that the lessor ever had title.</p> <p>In this declaration, each breach is in nature of a separate count.; and if either be found sufficient, the demurrer being to the whole, must fail.</p>

<p>Oh error from the O. P. of Madison county. The cause came to the 0. P. by appeal from a justice’s court. Roberts, the plaintiff before the justice, declared against the defendant, Osterhout, in trover for a watch. Osterhout pleaded that a previous judgment had been obtained by Roberts against OsterhOut’s son, for converting the same watch; on which the son was imprisoned 60 days in the county jail. The plaintiff, Roberts, demurred to the r. , „ and the justice gave judgment for the plaintiff. On appeal, the 0. P. gave judgment for the plaintiff; and a jury assessed his damages at $15, for which judgment was rendered, with $35 costs. Osterhout, the defendant below, and appellant, brought error to this court. °</p> <p>cited 2 Phil. Ev. 121, and note (a): 6 John 168 ; 5 id. 348; 1 Tid. Pr. 590; 1 Show. 146; 2 Str. 1078; Bul. N. P. 49; 2 Esp. Dig. (Gould’s ed.) 208.</p> <p>cited 9 John. 198 j 2 Str. 1078; 1 Chit. Pl. 75.</p>

ON error to the 0. P. of Lewis. Clintsman sued Nor* tbrop before a justice of Lewis county, on a contract by the latter to deliver to the former, certain good sole leather * ^ the month of May, 1826, at the shop of Northrop.

<p>Though there-payment'on'a mortgage to</p> <p>.¡he loan officers, under the act of April 11,1808, (sess 41, oh. 216, 5, W. 392,) yet the mortgagor retains an equity of redemption, till sale, as in the case of an ordinary mortgage, apon which a judgment recovered against him will become a lien; and it may he sold in execution, though the mortgagor has assigned it to another, who is the person making default.</p> <p>After a sale, the purchaser may give notice to the commissioners of loans that he is an assignee, and redeem and receive a release as assignee, pursuant to the act.</p>

<p>Ejectment for land in the town of Eye, in the county . .... r. of Westchester; tried at the circuit m -that county, Uctober, 1825; when a verdict was taken for the plaintiff, subject to the opinion of this court on the following case:</p> <p>On the 28th of April, 1812, Thomas Wilson being seised in fee of the premises in question, made his will and x -*• . devised them ,to his son Thomas M. Wilson m fee. On the 2d of May, 1812, Thomas Wilson made a codicil reciting the devise to Thomas M., and declaring as follows : “That if .my son Thomas M. Wilson shall decease without leaving any male issue, the real estate given to my Thomas shall be disposed of as follows : and I do dispose thereof, that his widow and child shall have the use of one half of the real estate as long as she remains a widow; and after her death or marriage, to be equally divided between my son James and my daughter Elizabeth, and my son Thomas Wilson’s child or children. The testator *died June 1st, 1812, leaving James Wilson, the lessor of the plaintiff, Elizabeth Park, and Thomas M. Wilson, his only children and heirs at law. On' the death of the testator, Thomas M. entered, and continued seised till his death without male issue, September 1st, 1824, leaving Elizabeth Wilson, the defendant, his widow, and three daughters surviving, who all reside on the premises: the defend- , .... ,. . -. ant still continues a widow.</p>

Assumpit, tried at the' New York sittings, April 22d, 1822, before Woodworth, J. The action was for money advanced by the plaintiff, to be applied in finishing the steamboat New Orleans, built by a voluntary association of persons calling themselves the New Orleans and Natches Company, of which the defendants were members with Eobert Fulton, in his life■fcimc , On the trial, the plaintiff relied on David Oooke, as the witness to make out his case.

<p>Assumpsit for work and labor; tried at the Oneida circuit, October 10th, 1826, before Williams, 0. Judge.</p> <p>It appeared at the trial, that the plaintiff agreed with the defendant to work for him one year, at 10 dollars per month. He worked 10 1-2 months, and then left the employment of the plaintiff) saying he would work no more for him. This was proved by two witnesses; though one swore the declaration was qualified, that he would work no more, &c., till he ascertained whether he could collect his wages. The declaration was made on Saturday, when the plaintiff went away. On Monday he returned and offered to resume his work; but the defendant said he would employ him no longer.</p> <p>Verdict for the plaintiff, subject to the opinion of the court.</p> <p>cited 10 John. 36; 12 ib, 274; 5 ib. 85.</p> <p>cited 13 John. 94, 359; 14 ib. 326 ; 2 Mass. Rep. 147; 2 Stark. Rep. 256 ; 20 John. 329 : 12 ib. 165; and 2 Phil. Ev. 82, and note c.</p>

<p>On error to the C. P. of Monroe. The cause came here on a bill of exceptions taken by the plaintiffs below, who are aiso the plaintiffs in error. The facts material to the . . case are stated in the opinion of the court.</p> <p>cited 8 John. 185; 7 T. R. 170; 4 id. 633 to 648; 1 Burr. 20; 2 Tid. Pr. 921, 922, 929, 930, 737, 15 John. 147; 6 Com. Dig. Retorn, (F. 2. ;) 12 John. 403.</p> <p>cited 8 John. 189: 4 T. R. 633 ; 4 Mass. Rep. 40; 7 id. 123; 8 John. 188; 1 Burr. 37; 15 John. 151.</p>

<p>Where proceedmgs are diet is found under8thTstai tute authorizing a summary bj a landlord to oust his tenant, (sess. 43, ch. 194, p 176,) the original affidavit can-the foundation of a new proceeding under that act.. And so1 used1* Ind the tenant possession* °f held, that the proceedings were coram void^and that trespass the1DS*andiord and judge.</p>

<p>Replevin; tried at the Rensselaer circuit in June, 1826, ^fore DUER, 0. Judge.</p> <p>The defendant avowed the taking for a half year’s rent in arrear, being $250, due on the 1st of October, 1823, on a lease of land in Schodack The plaintiffs pleaded non-tenancy and riens in arrere.</p> <p>On the trial, the defendant produced and-gave in evidence the lease, which contained in the body of it this language: “excepting and always reserving unto the said Amaziah. Payn, his heirs and assigns, all rents now due, or that may hereafter become due, by virtue of leases heretofore * executed to Andrew Van Beuren or otherwise John Burhans, William Bissel and Bradum Yale, heretofore executed and delivered.”</p> <p>The plaintiffs alleged that the words “ or that may hereafter become due,” were added by the defendant, fraudulently, after the execution of the lease; and the parties went into much evidence on this point, which was left to the jury on the question of forgery. It was agreed that the words alleged to be added were material and beneficial to the defendant. A counterpart of the lease in question, was executed by both parties, simultaneously with the original; and was given in evidence on the trial, by the plaintiffs. The judge charged that if the words in question were forged, though in point not material as to the rents in dispute, the lease was void. That if there was a forgery in the defendant’s lease, -the plaintiffs were entitled to a verdict. The jury found for the plaintiffs.</p> <p>He insisted, (among other points,) that even if the deed had been altered by the defendant, it was void in respect to the altered part only; but the whole deed was not, therefore, deHe cited 1 John. Ch. Rep. 417; 3 Salk. 120; 9 Mass. Rep. 370 ; 3 T. R. 151; 2 H. Bl. 259 ; 15 John. Rep. 297; 5 Taunt. 707; Phil. Ev. 340 ; 7 East, 363.</p> <p>cited 15 John. 293; 1 Dall. 65; Shep. Touch. 50, 68; 4 Com. Dig. 294, Am. ed.</p>

<p>A. plea to the that the par-counted defendant ,given_ to the ant’s) promissoiy note for the plaintiff’s abierto Pthe plaintiff or or-¿Qr QJ. jjQ tíl© jiifl.jnt.iff or he^ecépted^n account of his fa™ubstance.ad'to></p> <p>A promissoguishmenifofa simple contract debt; but only sub modo; and therefore cannot be pleaded in answer to a declaration upon a simple contract. It is but evidence under the general issue; which may be answered by —producing and cancelling the note on the trial.</p> <p>Where an usurious note was given as a substitute for a valid note which was destroyed by the parties; yet held, that an action lay on -the original note.</p> <p>A promissory note is conclusive evidence of a pecuniary consideration, under the common money counts:</p> <p>Hence, where a note was given in evidence under those counts, in an action by the payee against the maker; held, to be no defence that the note was not given for a pecuniary consideration, but for land purchased by the maker’s brother.</p>

Motion by the plaintiff to set aside the report of referees. The action was for work and labor, and money had and received; commenced by capias returnable in August term, 1826.

<p>The defendce’s court3 tho’ he omit to apturn of a summons, may yet plead at an adjourned day, costToftire adjournment and proceedings,</p>

Assumpsit to recover 1,000 dollars, and 14 per cent, on that sum, front the time when payment was demanded at 7 r J the defendant’s counter,… Held: that banks must pay ordinary claims within the banking hours of the day when the demand is made; and they must, at their peril, provide servants in sufficient number to count out the money, if it is not already counted and arranged for the purpose of prompt payment; that it must in all cases be paid. within a reasonable time.

<p>On an issue one’waa ed Co. Clerk, at length was Yatef; held, that votes for were "aiiowastances, the {tove^hat they were intended by the voters for Henry F. toaiThe often subscribed Ms Yates; that he been cíerk'and was a candidispute^votes that6 people would generally apply the abbreviation to no”other' sonwas known in the county where he was a candidate to whom it would apply.</p> <p>So the elector who gaVe the abbreviated vote may he' sworn' as to the person intended.</p> <p>A certificate-of town inspectors .was, that ,212 votes were given for Y. forthe office of county clerk, 30 votes for D. &c., and.11'6 for F., each for the sanie office.; held, that F.’a votes were well certified for him as a candidate for county clerk; and should' be allowed.</p> <p>A witness is never holden incompetent, merely on the ground that the fact he is called te prove is of such a nature that he cannot be convicted of perjury, should he swear falsely.</p>

<p>An order for yon 0f a ^t- * taxed if the witness be not examined. Otherwise if ea.</p>

The plaintiff had noticed this cause for trial at the last Seneca circuit; but, neglecting to file his nisi prius record on the. ¡first, day. of the circuit, the defendant on the second day tnpved for, and to.ok a rule for a ne recipiqtur. , On the third day the plaintiff appeared with his witnesses, and would have tried the cause had he not been prevented by the rule. The defendant now moved for judgment as; in case of non-suit.

A NON*BAILABLE capias ad respondendum was issued *** f against Oolver and Hawes jointly at the suit of the plain- ^ f°r a false imprisonment committed by Hawes.

Assumpsit on a promissory note. Plea the general jggue with notice of special matter, containing certain par- ' r i o r ticulars showing the note to be usurious.. On the trial at the February circuit, 1827, before Duer, q_ Judge, the evidence of usury varied in some material . ° particulars from the notice. On objection, therefore, the judge excluded the evidence as inadmissible under the notice. The defendants excepted. Verdict for the plaintiff

In trespass for cutting timber on wild land, the plaintiff having no actual possession, it became necessary, in order The circuit judge now certified the above facts. The declaration which was entitled of August term, 1826, recited the statute of April 9th, 1805, (Laws, sess. 28, ch. 94,) and one count averred the trespass to be cone trary to the form of the statute aforesaid, and two others, generally, -contrary to the form of the statute in such case-made and provided.

<p>t!og Where a no-(except notice of the irregularly^ 'office3 it need be attorney°afterí s^vmga tainer. ot^£d affixedbe served on the attorney upon notice of retainer received, the defendant cannot object that the second notice was a short one.</p>

One Polly appealed from the judgment of a justice against him, (P.,) at the suit of the relator, to the 0. P. of Washington county. The appeal bond was drawn in blank as to the recital of the judgment, and executed by Polly and his surety, the former giving parol authority to his surety to ascertain from the justice the amount of the judgment, fill up the blank accordingly, and deliver the bond for both, which was done.

Jake Ulma, having taken an assignment of a note payable to one Sterling in specific articles, against the relator, *sued him before a justice of St. Lawrence county, in Sterling’s name as plaintiff. The justice gave judgment in favor of Lassell. Jane Ulma appealed to the C. P. of St. Lawrence; and the appeal bond was not executed by Sterling, but by Jane Ulma and a surety.

The recorder of New York made an order to supersede an execution against one Eoyall, m custody at the suit of Crosby, on process issued by the C. P. of New York. This was founded on an order tó show cause, which the relator’s attorney insisted was not regularly served, there being no C0Py finished to him.

On return to an alternative mandamus, it appeared that Colvin, the relator, recovered judgment against Farnham and Clark before a justice of Onondaga county, Clark having pleaded the general issue, and Farnham a discharge of b's body from imprisonment under the insolvent act. The judgment was qualified against Farnham, so as not to allow execution against the body; and Clark alone appealed t0 tbe C. P. in the name of both defendants.

Assumpsit. The defendant being discharged under the act to abolish imprisonment for debt in certain cases after the suit commenced, and pleas pleaded, his attorney served • - . , 7 r , a stipulation on the plaintiffs attorneys not to take advantage of the discharge as a defence in this suit. NotwithStanding this, for the nlaintiff, now moved for leave to * -. . . discontinue Without costs.

The capias ad respondendum was issued returnable the first Monday of August last, on which Russ alone was retarned taketi.

' ®EAGH brought debt against Jones and others, on an appeal bond, in the C. P. of Monroe; and assigned two breaches; 1. That the appellant did not prosecute with due diligence, wherefore the appeal was dismissed with costs; and he had not paid them; 2.

<p>At the trial, the defendants took'various -exceptions ;to decisions and charge-of the circuitjudge: and after "ver- ° jo diet against them, applied to him for an order allowing time to make a case, with liberty to turn it into a bill of exceptions or special verdict. The judge refused this order ; but made an order giving time to make a case or bill of exceptions, on the ground that, according to his impression, the Supreme Court had disapproved of making cases to be changed into bills of exceptions or verdicts. A case was made, on which a new trial was denied. (See 7 Cowen 613, S. 0.) And now</p> <p>He cited 3 Cowen, 58; 4 id. 43.</p> <p>cited 5 Cowen, 415; 1 John. Rep. 192, 195.</p>

The plaintiff had recovered a judgment in this court against the defendant; and the latter had recovered two judgments against the former before a justice of the peace. A motion was now made, in behalf of- the defendant, to off and deduct his judgments from the one obtained against him in this court; and that, on paying the balance, ° . ’ 1 e j a ' execution should be perpetually stayed.

<p>Courts may, a'sound dií cretion, allow withdrawn ;be and still retain the cause upon the ecaiendar for trial, instead of non-</p> <p>suiting a plaintiff for a defect in his proof; as in case of surprise or mistake on his part in the preparation of his cause for trial; and this even where the defendant has not wilfully misled the plaintiff.</p>

On return to an alternative mandamus. Bull sued Davis before a justice of Tompkins; and judgment was for Davis, who appealed to the C. P. On the jury in the C. P. , . , . . . ^ . mg on their verdict and returning to the bar, Bull, the appellee (plaintiff) being called, did not appear or answer; and it was suggested by his counsel that he intended to submit to a non-suit.

Motion, in behalf of the defendant, to set aside a default for want of a plea. The declaration was served on the aSen* °f the defendant’s attorney, December 6th, 1827. On the 7th of January, 1828, the defendant obtained the usual alternative order for a bill of particulars, with a stay 0f proceedings, which was, on the same day, served upon the plaintiff’s attorney.

Oh return to an alternative mandamus, the defendant stated that the relator sued Turner before him, by summons returnable at 10 A. M.; and at 11, the defendant not appearing, the plaintiff declared, proved his demand to $50, ^ r , , . ' , T ’ ana withdrew. The defendant appeared in a few minutes, requested leave to plead, which the justice denied, unless he could procure the plaintiff to attend.

-At the last October term, the venue was changed from ®ranSe to New York, no one appearing to oppose, on an affidavit by the defendant of 27 witnesses residing in New -y -i x orjs* , •^ow> 011 affidavits excusing the default, and that the plaintiff had 43 witnesses in Orange, a motion was made °Pen former rule, and bring back the venue to the latter county. answer to this motion, 20 witnesses were now sworn t0 as residing in New York, besides those named .in the . . ° . '…

Assumpsit. The cause was referred, by consent of the parties, to two referees, yith power in them-to choose an umpire; and a rule by consent was entered to that effect; J and that the referees report, &c. They heard the cause, and reported accordingly. _ A motion was now made, in behalf of the defendant, to set aside the report for irregularity.

On certiorari from a court of special sessions of tie county of Lewis. Norton was convicted in the court below ° e of petit larceny, in stealing certain tubs, which were laid in the complaint to be the property of one Dickenson. On the trial, it appeared that the tubs had been taken executlon against the defendant below by a deputy she* riff.

Hurlburt having obtained judgment before a justice of Onondaga county against Welch and Whitmarsh, defendants, they appealed to the C. P.; -but in the appeal bond condition was absolute, that the defendants should pay the judgment, with interest and costs of the appeal, omit* ting the usual alternative provision; or surrender themselves in execution, &c. For this defect, Hurlburt moved the 0.

<p>The defendant was found guilty by the jury, at the Cayuga general sessions, of a nuisance in keeping two billiard tables for the purpose of playing billiards in the village of Auburn. The indictment was at common law, The proof was, that the tables were kept in a room over Bennett’s . _ . A store, the defendant having the care of them. Witnesses stated that they had known playing for money once; that they had known playing for beer; but it was usual to plav tor the rub; that is to say, the use of the tables, which was one shilling; that it was not a common practice to play for liquor; and this was always objected to by the defendant when he knew it; and he had interfered and prevented it; that there was no bar kept in the billiard room ; and the playing occasioned no disturbance, the game being a quiet one. There was a bar kept in a grocery two stories below; but the defendant was not interested in it; though he occasionally brought up liquor, on request, for the players. Persons under 18 years of age were not allowed to play, and 11 o’clock P.M. was the regular hour of closing. More or less persons resorted to the tables each day, when they necessarily went through the store.</p> <p>The court below charged against the defendant; but suspended judgment, with a view to obtain the opinion of this court, on the above case, whether the facts constituted a nuisance at common law.</p> <p>denied that the facts made out a nuisance. He admitted that a common gaming house was indictable as a public nuisance, (4 Bl. Com. 166, 7,) because it is an offence against the public. It is doing a thing which annoys people generally. (4 Burn. J. 418.) But he insisted that merely playing for sport, is not gaming within the meaning of the law. This *is an indictment founded on the common law. It cannot be supported by the statute which .declares a tavern keeper guilty of nuisance in merely keeping a billiard table. (1 R. L. 178.) The common law declares, that playing even at cards, dice or other game of chance, merely for the purpose of recreation, and the better to fit a person for business, and without any view to inordinate gain, is innocent. (Bac. Abr. Gaming, 2 Chit. Cr. L. 436, note.) If this be so as to games of chance, a fortiori is it so as to billiards, which is a game of skill. The principle on which common gaming houses are declared public nuisances is, that they tempt to idleness ; and are apt to draw together great numbers of disorderly persons, which cannot but be inconvenient for the neighborhood. (Bac. Abr. Gaming.) The mere playing at billiards, or any game of skill, can have no such tendency. The prosecutor should have proved that gaming was practiced at these tables, or else that were such noises and r ' .j disturbances as to annoy the neighborhood. These would render any place a nuisance.</p>

Slander and malicious prosecution,- tried at the Che-nan§° chcuit, in July, 1826, before BÍELSON, 0.

Case against the acting commissioners under the stab ute, (sess. 46, oh. Ill,) for erecting the Albany basin, by which the plaintiff alleged he was injured; ■ tried at the Albany circuit, February 7th, 1826, before Duer, 0. Judge, • The plaintiff was non-suited by the judge, who sealed a bill of exceptions presenting the grounds of the non-suit, which, with the facts of the case, will be found stated in the opinion of the court.

Assumpsit for money paid; tried at the New York circuit, April 14th, 1826, before Walworth, 0. Judge.

<p>A discharge ^^arrest m execution, ex-judgment,thS</p> <p>ci^gl^eaf^ judgment aohar£ed*</p> <p>extended to a an^executton issued by a baüforbad” journment by a defendant upon a warrant.</p> <p>And held, that a discharge of the principal, after the cause against the bail was submitted to the justice, was equivalent to a discharge after judgment rendered.</p>

Actioh on the case, brought to recover damages susby the plaintiff, in consequence of the erection, continuance and final breaking away of. a dam at the head of creek; tried at the Schoharie circuit in October, 1826, before Duer, 0. Judge. On the trial, it appeared that the dam had been built by ^íe defendants for the purpose of their mills, at the outlet of the fly, the head of the Oatskill creek, several vears previous to its going off, which was in April, 1824.

On demurrer to the special plea. The declaration eontained three counts, which were in case against the defendants for alleged corruption and misconduct as a commissioner in discharging an insolvent who was indebted to the plaintiff. The counts were substantially alike in parti cu-1 , J , r lars. They alleged that the plaintiff was a creditor of one Shepherd, and sued him by capias returnable at August term, 1824. That Shepherd put in special bail to the ac- • aaa tion.

On demurrer to the replication., The declaration was . x on a covenant of seisin in land.

Assuhpit, tried at the Tioga circuit, in January, 182? ^efore ]SfELsON, 0. Judge. } ° At the trial, it appeared that the defendants were com missioners for building a court house in Owego village, COuntv of Tioga, appointed under the Statute, (sess. 45, ch. J 75, s. 9. 10, A. D-. 1822, p. 76,) and that known to the plaintiff, who worked upon the court house under a contract with the defendants.

Debt for the escape of one Grose, from the defendant’s custody under a ca. sa. against Grose and Hillakie' jointly, issue(l on a judgment of the supreme court, in favor of the _ , . “Ine cause was tried at the Herkimer circuit, m March, 1827, before Williams, 0. Judge; when the plaintiff made out the commitment of both defendants, and escape of Grose from custody under the ca. sa. which issued more than two years after the recovery of the judgment.

Assumpsit for money had and received; tried at the Washington circuit, in June, 1825, before Duer, 0. Judge; wben the following facts were in evidence: January 2d, 1807, Waite executed his bond and warrant *° confess judgment to Leggett, for items of account fur- nisbed by the latter, to his attorney, amounting to $1579 64, on which judgment was entered.

-A-SSUMPSIT for money had and received, tried at the Delaware circuit, November 21st 1826, before Betts, late Judge. The material facts proved, were, that one Jackson died e r ? J in the service of the United States, leaving a widow and children, who, by the laws of the United States, became entitled to money m lieu of bounty lands. The plaintiff . _ , .. J . . _ married J ackson s widow; and was appointed guardian of children.

<p>Concessions made during t3le Penr[en®y compromising tamissiMe eriÍ3®11®® against thepartymaking them,</p> <p>tiff he was an-defendant^ *to ^certain on what terms Qe ^the* svdt! ^®rredlainth^ witness to his ittoraeyfmy“g he^(the atterested as orthe demand in question, which was a promissory belre/^The attorney being nes^for^be piairitifif on the trial, the statement of the plaintiff was offered in evi-</p> <p>dence, to show the interest of the attorney; and thus exclude him. Held, that such testimony was inadmissible.</p>

On error to the C. P. of Schenectady. The action in that court was assumpsit by Cuyler against Hogan, on three several promissory notes, set forth in the declaration, which also included the general money counts. The placita of the record was of the 3d Tuesday of January, 1825. The three notes were all declared on in one count. The cause was tried on the 20th of September, 1825.

COVENANT on ajease, tried at the Saratoga circuit, ISTo28th, 1826, bbfore Walworth, C. Judge, ^ tria] the following matters were in evidence: the plaintiff by lease under seal, dated March 29th, 1819, demised a house and lot to the defendant’s testator, for two years from the 1st of May, then next, at an annual rent of 600 dollars payable quarterly.

Case against the defendant, as under sheriff of the county Warren, for a false return to a writ of fi. fa. The cause was tried at the Warren circuit, June 20th, 1825, before Duer, C. Judge. aPPeare A motion was made by the plaintiff for a new trial on several grounds; and opposed on the ground, among others, that the defendant’s office of under sheriff expired with that of Mr. Farlin, the sheriff.

<p>Slander ; tried at the Rensselaer, circuit,, before Duer, Judge; when a verdict was found, for the,.plaintiff, of 1000 dollars, damages.. The material facts ar,e stated in the opinion of the court.</p> <p>The cause was argued, on a motion for a new trial, in behalf'of the defendant, by 1 J</p>

Assumpsit to recover damages for not delivering a quantity of cut nails to the plaintiffs, pursuant to the de fendant’s agreement. The cause was tried at the New York circuit, March 25th, 1826, before Duke, 0.

Replevin for wheat and rye: tried at the Seneca circuit, . J 1 3 in June, 1827, before Throop, 0.

CASE against the defendants as common carriers, tried at the Rensselaer circuit, November 19th, 1826, before Dues, Q_ Judge, ° At the trial, it appeared that about the 1st of June, 1824, pi^yffg pUt certain goods on board of the defendants’ sloop at the city of New-York, to be transported to Troy. _ /.

<p>Though a lease by parol term1" Wharfs y0j^’f3“d tk° term, within fraudg; yet the arUAt®r“tto fr°™ regulated76^ by^the^parol demise, except 38</p> <p>Such [lolds a term which should Tega^pro”</p> <p>he seeks toenBerthe stetute of forcible entry and detainer. (1 R. L. 96, 98, s. 6.) The same circumstance of violence or terror which will constitute a forcible entry, will amount to a forcible detainer.</p> <p>K g. Threats of bodily hurt to the former possessor, if he shall return, though he make no attempt to re-enter.</p> <p>The defendant having entered peaceably, said to the former possessor, “ It will not be well for you, if you ever come upon the premises again b)r day or night.” It was left to the jury, whether this was threat of personal violence, and so a forcible detainer within the statute. They found it was; and, on motion for a new trial, it was refused.</p> <p>The title of the defendant is not in question on the trial of an indictment for a forcible entry or detainer.</p> <p>Under an indictment for a forcible entry and detainer, the jury may find, the defendant guilty of a forcible detainer only.</p> <p>Where one leases to another for years, the former cannot impair the rights'of the latter by conveying the demised premises in fee without excepting the term.</p>

Oh demurrer to the rejoinder. The declaration was in assumpsit, on a promissory note, which fell due in June, , , , , . • „ _ , , . .„ 1819, payable by the defendant to the plaintiffs. Plea, after the general issue, non assumpsit infra sex annos.

On demurrer to the declaration. This was in debt an award. It began thus: “Elijah Stanley, as guardian and security for Amanda Stanley, Dyer Stanley, &c., heirs at law of Dyer Stanley, deceased, plaintiff in this suit, com- , . „ „ J J , .’ r L ’ . plains, &c. It then set forth, m the first count, mutual bonds of arbitration as between the plaintiff (not him guardian, &c.) and the defendants, binding the parties to abide an award concerning differences, &c., between parties.

Trover for cotton cloths: tried at the Washington cir-November 14th, 1826, before Walworth, 0. judge The case at the trial was briefly this: on the 16th of January, 1826, a person calling himself Samuel Stevens, to plaintiff’s factory in Easton, Washington county, and presented a forged paper, purporting to be signhy Isaac Bishop, mentioning Stevens as a person who wished to purchase cotton goods, as one who might safe-he trusted, and assuming to pay whatever amount the…

<p>A general bequest of a sum of money to a debtor, exceeding the debt due, the’ unliquidated”” account is a it appear either of the6 wm or by evidence aliunde, to be so intended.</p> <p>W^wás^h6 debted to the testatrix on bond and mortgage, $4,000; and the testatrix account'”1 le°s” than $2,400, an¿ g]qg dcclflred by her will, payta°°$i Too the bond and iXuMSbe discharged,which cordingiy, and conversations7 between w. and the testatrix, that she bequestíshouldto go to discharge toV.6 held, thatit operated as a payment.</p> <p>Parol evidence, to show the intent of the testatrix, was held not to he objectionable as going to vary or contradict the will; but to be consistent with it.</p>

Debt for $250, upon the 2d section of the habeas corpus act, (1 E. L. 354,) for refusing, on demand, to deliver a copy of the warrant of commitment, under which the plaintiff was held in the custody of the defendant.

Assumpsit for money had and received; tried at «y * Washington circuit, November 5th, 1826, before WalWORTH, 0. Judge. ' It was admitted at the trial, that in 1823, one Wilson brought trover, in this court, against the now plaintiff, then a deputy sheriff, for property taken by him under a fi. jfo., against one Waters, in favor of one Billings.

Ejectment for lots Nos. 21 and 23, in the village of Lit-tie Falls, town and county of Herkimer; tried at the circuit in that county, on the 13th of September, 1826, before Williams, CL Judge; when a verdict was taken for the plaintiff, subject to the opinion of this court upon a case. The cause was argued here by ° J

Covenant ; tried .at the Dutchess circuit, December 6th, 1826, before Betts, late O. Judge. ' ' , The declaration was, upon a lease under seal, dated AuSust ^^12, by which the defendant demised a farm to the plaintiff for the term of 10 years from the 1st of May, ^ „ rtA‘x, - - v 1813, at .a rent ox 20,dollars; and he covenanted to pay *^6 plaintiff, at the expiration of the term, for such buiídings as he might erect during the term for the accpmmodati011 an4 PPfsuit of his…

On error from the C. P. of Albany. Cassidy declared against Caldwell in the court below, as the maker of a promissory note for $70, payable to Cassidy, or order, 60 days after date, at the Franklin bank in the city of Mew York.

Ejectment for a farm in township Ho, 1, first range west of the Grenessee river, in Phelps & Gorham’s purchase in the town of Caledonia, county of Livingston; tried J at the circuit in that county, December, 7th, 1826, before Bjed a Jud 1 ° The lessors of the plaintiff are Hannah Martin, (formerly jjannah Chapman,) deceased, and her heirs at law. The only question on the trial, was upon her title under a deed from Oliver Phelps.

Ejectment, for a lot in the city of Hew York; tried at New York circuit, in February, 1826, when the following facts were admitted: One Charlton and his wife were seised, in fee, of two adjoining lots in the city, (one ^ which is the premises in question,) under a conveyance made to them jointly during coverture. They had no children.

<p>A town meet-op!ne™for bm siness at any sunrise and</p> <p>so opened, the meeting may be continued to the second day, and it may be adjourned, immediately on opening the first day, to the next day and to a different place, in the discretion of the meeting, provided they deem this necessary for their accommodation.</p> <p>Of this necessity, the meeting are the exclusive judges.</p>

Ejectment for a farm in Vernon, Oneida county'; tried at the circuit in that county, October 10th, 1826, before T v ' ’ yVILLIAMSj 0. Judge. The plaintiff claimed to recover upon a demise from the to the lessor of the plaintiff; the particulars of which, and the manner in which the defendant sought to meet the plaintiff’s claim, are stated in the opinion of the . , . ± court, with the other material facts in the case.

This was au action of ejectment, brought to enforce an alleged condition in a lease. The cause was tried at the Cayuga circuit, March 9th, 1826, before Thboop, 0. Judge; when the following facts were in evidence: The ancestor of the lessors of the plaintiff demised certain premises, in fee,, to William Smith, under whom the defendants hold.

On demurrer to the plea. The declaration was in debt on a recognizance in the penal sum of $150. acknowledged on the 5th of January, 1827, before one of the judges, of the common pleas of Seneca county.

Ow error from the C. P. of Uevv-York. The action be-*ow was assumPsit by Dilworth and Yoorhees, indorsees against Coster, payee and indorser of a promissory note *mac^e by Murgatroyd, for $240, dated October 22d, 1825.

<p>On error from the Monroe common pleas.</p> <p>The facts are stated in the opinion of the court, which was *■ 1 delivered by J</p>

Motion, in behalf of the defendant, to set aside the report of referees.. The question before the referees was upon ¿to. offer to set off a demand of the defendant, against the plaintiff, arising under the following circumstances; The father of the defendant died in 1817, leaving three sons, and a widow. The defendant was over 14, and the other two were under that age.

On demurrer to the replication. The declaration was two promissory notes, payee against maker, dated.

On error from the supreme court, on a judgment there, for damages and costs, in favor of Pendleton against Dyett. moved that the writ of error be quashed, on the ground that no bail in error having been put in, a fi. fa. was issued and levied; and the suit settled by certain negotiable promissory notes, given by the defendant below; the judgment to stand as,security. The notes were at three, six and nine months.

The final decree was, on the 5th of May, 1821, in favor of the appellant against the respondents, for certain damages, interest and costs; and confirmed on a re-hearing, on the 5th July in the s.ame year.

<p>Charles Augustus Dale having intermarried with Harriet Fulton surviving executrix of Robert Fulton, deceased, .who died after a judgment against herns .such ex ' " ’ * : i ' • ecutrix at the suit of Nicholas I. Roosevelt in .the supreme court, brought error; and had assigned errors as ad ministrat0r de bonis non of Fulton, without making a proferí of ¡the -letters of administration. The judgment was against the executrix, with an award .of execution against her of the goods and chattels of the testator, &c., in the hands of the executrix; and if she had not, &c., then the costs de bonis propiis ; in the usual form where there is no plea or proof of a want of assets.</p> <p>*Notice of the writ of error had been given to the attorney of Roosevelt on the 5th of June, 1826, by Mr. 0. Graham, as the attorney of Mrs. Fulton.</p> <p>The surrogate of the city and county Of New York, to whom the granting of administration belonged, certified that no letters were granted to Dale, at the time of bringing the writ of error.</p> <p>This being now verified by affidavit,</p> <p>moved that the plaintiff produce his letters .of administration, or that the writ of error be set aside; and he also insisted tfiat the writ should be quashed, .on the ground that .an administrator .de bonis non has no right to bring error; so that the production of the letters could make no difference.</p> <p>The .argument .being suspended,</p> <p>An order of the court of chancery was afterwards produced, made on appeal from the surrogate of New York, directing letter^ of afinfinistratiop. to issue to Dale on certain conditions. See opinion of Spencer, Senator, post.</p> <p>Roosevelt said the writ of error must conform to the record. That was of a judgment against Harriet Fulton, executrix, &c. Dale’s name nowhere occurs in the record. An administrator de bonis non cannot bring error. Grout v. Chamberlin, (4 Mass. Rep. 611,) is in point. At common law, be could not have a sci. fa., on a judgment in favor of the previous executor or administrator. (Com. Dig. Administration (Gr.) True, this right was given by the stattute, (1 R. L. 312, s. 9,) but there is no statute giving him error. It is a settled criterion, that there is no right to a writ of error by one not appearing in the record, if there is a want of privity between him and the party. (Tidd’s Pr. 1053.) This is not a case within the statute concerning the court for the trial of impeachments and the correction of errors. (1 R. L. 133, s. 7.) That statute is, that any party, or his representative, against whom any judgment shall be given in the supreme court, may bring *error to this court. The present plaintiff in error is neither the party, nor representative of the party. He represents Pulton, the testator. This is a judgment which binds the estate of the executrix, if there be no assets of the testator’s estate. Her representatives are responsible. Suppose the judgment to be reversed: the consequence is, that the verdict is set aside. A venire de novo should then issue in the court below. But there is no party there. Suppose the judgment below executed, and the money collected; to whom is restitution to be awarded ? Hot to Dale, certainly. It should be made to the executrix or her representative. Her representative should, then, be before the court. The statute giving a sci fa. on a judgment in favor of a testator or intestate, to his administrator de bonis non, has not changed the common law as to writs of error. The judgment binding the executrix in this case, her representatives have a right to bring a writ of error, let this suit terminate as it may. They may do this as to the costs at least. Should the judgment be affirmed, therefore, we may yet be driven over the whole ground again. Hence the rule that all parties interested must unite, that all questions may be settled, and finally and effectually settled. (Com. Dig. Pleader, (3 B. 9.) Laroche v. Wasbrough, 2 T. R. 737.) If they be omitted, the remedy is a motion to quash the writ of error. If one refuses to join, where several are interested, those refusing are bound by the process of summons and severance, which must be resorted to.</p> <p>But at any rate, the administrator de bonis non must show his authority. Where are the letters of administration? We challenge their production. The constant and settled practice in declaring is, to offer them by way of profert. An assignment of errors is in nature of a declaration. A profert is equally necessary. (1 Chit. Pl. 400.)</p> <p>Either Dale must bring error, or no one. Who or what shall be said to be aggrieved in this case within the statute ? It is the estate of Fulton. Who represents that estate ? Dale; and he only.</p> <p>"As to the objection that Dale is not administrator de lonis non, and, therefore, comes without authority, the defendant in error has no right to move. His only course is to plead the matter specially. (1 Archb. Pr. 2322 Dunl. 1154, 1156; Tidd’s Pr. 1120.) The rule must be the same in relation to a writ of error as in an original action, where it is well settled.</p> <p>The omission of a profert is justified by the precedents. The general assignment is the proper one. Shepard v. Merrill, 13 John. 475. Burtch v. Nickerson, 17 John, 218, per Woodworth, J.</p> <p>But if profert be necessary, the proper course was to demur: and, at all events, whether the question arise on demurrer or motion, this court will allow us to amend, the defect being merely formal. But Dale must be taken to be administrator till the contrary is shown in a proper way. Nothing yet appears to the contrary, beyond the mere suggestion of counsel.</p> <p>As to the right of an administrator de lords non to bring error: in this state there is no statute authority for executors or administrators eo nomine to bring error at all; yet it is the universal practice; and has been so ever since the passage of the statute, 1 E. L. 143. On what principle is this ? I answer, because the judgment is prejudicial to the estate which they represent. An administrator de lonis non is the representative of the estate. He is so in relation to the judgment below. , It must be satisfied, out of the estate he represents.</p> <p>How is the executrix affected ? Non constat that the costs remain unpaid. The general rule is, that error lies by any man grieved through any error in the foundation, proceeding, judgment or execution. (Co. Lit. 288, b; 2 Dunl. 1119.) The question is, who shall be said to be aggrieved ? Not the deceased executrix; but the administrator de bonis non ; or, in other words, the estate of Fulton, the children of Fulton. An executor or administrator may have error at the common law. (2 Dunl. Pr. 1122 ; Com. Dig. Plead. (3 B. 9.) So the heir on a '^judgment against the ancestor. (2 Dunl. Pr. 1122 ; 3 Bac. Abr. 457.) So a remainderman or reversioner. (1 R. L. 183.) This court have gone still further, and hold that the sureties of a sheriff may bring error upon a judgment against the principal. (Lyon v. Tallmadge, 14 John. 501.) Why does an administrator de bonis non form an exception? The statute (1 R. L. 133) cited on the other side, gives him the right. It is, that not only the party grieved, but his representatives, may sue out the writ of error. • Language cannot be plainer. Dale is the legal representative of the person whose estate is aggrieved.</p>

<p>Where it is intended to set aside an appeal, or part of an appeal, to the court of errors, on the ground that 'it was made after the time allowed by the statute of limitations, (e. g. where the appeal is from an interlocutory order of the court of chancery, after fifteen days from the time of *the order made,) this should properly be done on motion for the purpose. It is too late to object at the hearing. Per Sutherland, J., interrupting Anthon, arguendo.</p> <p>A guardian, though appointed by the surrogate, may be removed from his office, compelled to account, and another guardian be substituted by the court of chancery, on petition. A bill is not necessary.</p> <p>Though the chancellor may, in his discretion, order a bill to be filed. Per Sutherland, J.</p> <p>An appeal lies from that part of a decree which relates to the costs only.</p> <p>So it lies from an order made on petition.</p> <p>But not in all cases. It is rather a matter of discretion with the court of errors, whether they will take cognizance of such appeal. Per Sutherland, J.</p>

This cause, with its decision in the court below, is reported in 7 John. Oh. Bep. 90 to 136. The appeal was from that part of the ‘^chancellor’s decree which overruled the plea of the statute of limitations, interposed by the appellants, as a bar to the bill of the respondents for the dividends or profits on share No. 41, prior to the 1st of July, 1815. This part of the case below was discussed by chancellor Kent, in 7 John. Oh.

<p>Appeal from the court of chancery. The cause came v here upon facts, the substance of which will be found stated in the report of the cause in the court below, by Mr. Hopkins. (1 Hopk. Oh. Rep. 48.) The points and arguments of counsel, with the authorities, are also stated there, so far as it is deemed important to notice them. I report this case more from the conviction of the .great value which the opinions of Woodworth, J., and Colder, Senator, the only Judges who delivered opinions, must be to the profession, than as settling any point by adjudication, except perhaps as to the answer which a bona fide purchaser must put in, to protect himself in the possession of a title voidable in the hands of the one from whom he claims. It will be seen, that although their conclusions were the same in which the court concurred, yet their premises being different, and the affirmance being general, concurring with neither distinctly in their reasoning, the positions advanced in the opinions cannot claim to be authority, farther than as the dicta of learned judges, who have thoroughly and ably examined the subject upon which "••they speak, and who furnish the test of principle and authority for what they say.</p> <p>The case will also be found briefly stated in the opinion of Woodworth, J.</p> <p>Saheord, Chancellor, assigned the reasons for the decree appealed from, as in 1 Hopk. Oh. Rep. 54 to 59, S. C.</p> <p>. The cause was argued here by</p>

For the report of the case in the court below, see 1 Hopk. Oh. Eep. MS to M9. Sanford. Chancellor, assigned his reasons for the decision in chancery, as in 1 Hopk. Oh. Eep. 147 to 149; The cause was argued here by

Osr appeal from the court of chancery. On the 7th of July, 1819, the respondents filed their bill against the appellants, stating that in 1812, divers persons formed themselves into an incorporation, under the statute of March 22d, 1811, (sess. 34, ch. 67,) called The Cambridge Farmers’ Woolen Manufactory. That they ^commenced operations, and became indebted to the respondents. That in January, 1818, all the real and personal property of the company was sold on execution.

<p>To take interest in advance, upon discounting a ninety day note, made, to be discounted, the interest being calculated at one-fourth, of a year for the ninety days, is usurious; and the note, therefore, void.</p> <p>Whether the lieutenant governor has the same right to deliver his opinion, and vote in the court of errors, as a senator? Qmre.</p>

On error from the supreme court. The action in the court below was by James Jackson, on the demise of John *B. Yan Wyck, against the two Sewards, defendants, to recover two pieces of land ; the one a farm of about 230 acres with a small piece of adjoining land, (about two acres,) including a house and garden, formerly constituting part of, but sold and separated from the larger piece. Both were situate in the town of Eishkill, Dutchess county.

<p>On error from, the supreme court. The action in the court below was covenant, by John M. Bradford, (defend ant here,) against the now plaintiffs m error, for the recov* cry of a portion of his (B’s) salary of $2000 per annum, as a minister of the gospel of the plaintiffs in error, from the 2d of December, 1820, to the 26th of June, 1821.</p> <p>The cause was tried at the Albany Circuit on the 2d Tuesday of April, 1822, before Spencer, (then) Oh. J. of the supreme court.</p> <p>On the trial, the plaintiff below gave in evidence the call of the defendants below, under their corporate seal, dated June 12th, 1805, directed to the plaintiff in error ': which call was as follows:</p> <p>“To the reverend John Melancton Bradford, &o. Whereas, the Reformed Protestant Dutch Church in the city of Albany is at present destitute of the stated preaching *of the word, and the regular administration of the ordinances, and is desirous of obtaining the means of grace which God hath appointed for the salvation of sinners, through Jesus Christ his son; and whereas, the said church is well satisfied of the piety, gifts and qualifications of you, John. Melancton Bradford, and hath good hope that your labor in the gospel will be attended with a blessing; therefore, we, the minister, elders and deacons of the said church, have resolved to call, and we hereby solemnly, and in the fear of the Lord, do call you, the said John Melancton Bradford, to be our pastor and teacher, to preach the word in truth and faithfulness; to administer the wholly sacraments agreeably to the institutions of Christ; to maintain Christian discipline; to edify the congregation, and especially the youth, by catechetical instructions, and as a faithful servant of Jesus Christ, to, fulfill the whole work of the gospel ministrv, agreeably to the word of God. and the excellent rules f , J. , . ....... and constitution of our Reiormed Dutch Church,, established in the last national synod, held at Dordrecht,, and ratified and explained by the ecclesiastical judicatory,, under which we stand, and,to. which you,, upon accepting this call, must, with us, remain subordinate.</p> <p>In fulfilling the. ordinary duties of your ministry, it. is expressly stipulated, that besides preaching upon such texts of scripture as you may judge proper to. select for our instruction,, you. also explain a portion of the Heidi ebergh catechism on the Lord’s days, agreeably to the established order of the said church; and that you farther conform in rendering all that, public service, which is usual and has been in constant practice in our congregation;</p> <p>To encourage, you, in the discharge of the duties, in your important office,, we promise, in the name of this church, all proper attention,, love, and obedience in the Lord ; and to free you from worldly cares and avocations,, whilst you are- dispensing spiritual1 blessings to us, we, the minister, elders1 and deacons of the said church, do promise and oblige ourselves, and our successors, to pay to you the sum of one thousand five hundred dollars, of the money of account, of the. United States,, yearly, and every year; in ^quarterly payments, as long as yon continue our minister in the said church, and remain unmarried1; and, from and after the; time- of your marriage, we further promise and oblige ourselves, and our successors, to- pay you the additional' sunn of two hundred and fifty dollars, of like money as aforesaid; yearly,, and, every year,, in quarterly payments, during the-continuance ofyour ministry in the. said church.”</p> <p>The defendant in error also gave in evidence a resolution, dated “ In Gonsistory, 7th Dec. 1813,” under the corporate. seal of the plaintiffs in error, fixing his permanent salary at $2000, per annum,-, payable, quarterly.</p> <p>It was then admitted by the1 parties,, that this salary had been paid up to the 2d of December, 1820but not after.</p> <p>It was thereupon admitted, that: the elders and deacons of the Reformed Protestant-Dutch Church, in the city of -^^an7> to w^t: Stephen Van Bensselaer, Conradt Ganso voort, John E. Bleecker and Jacob Ten Eyck, elders: and Turns Shngerland, John A. Goeway, Charles D. Townsend, an(^ Eíartin Van Alsyne; deacons, at a consistorial meeting, held on the 5th day of September,- 1820, unanimously agreed upon a representation in writing, to be made to the elassis of Albany, as follows, to wit:</p> <p>“To the reverend elassis of Albany, the elders and deacons of the consistory of the Beformed Protestant Dutch Church in the city of Albany, respectfully represent: That reports have existed for a considerable time past, which impute to their minister, the Eev. Doctor John M. Bradford, repeated instances of inebriety; that, feeling unwilling to credit such reports, and desirous to preserve the character and usefulness of their minister, whose talents they hold in the highest estimation, the elders have both formally and informally communicated the prevalence of said reports to him, and admonished him, in a friendly manner, of their ruinous tendency, and the necessity of greater circumspection on his part, to silence them. That, hoping that such communications and admonitions would produce a circumspect and exemplary course of conduct on the part of their minister, and aware oí the injurious consequences which might result from a public investigation, the elders and deacons have hitherto forborne to request such investigation. That the continuation, and extensive prevalence of the said reports, with references to recent instances of the inebriety of their minister, as well as a deep sense of their Christian obligations, the rules of the church now constrain the elders and deacons to the painful duty of soliciting the investigation as early as may be practicable. That the standing and usefulness of their minister in the congregation is already materially impaired, and the elders and deacons entertain strong apprehensions, that unless the said reports shall be speedily silenced by the judicial determination of the reverend elassis, and the reproach cast upon the character of their said minister completely removed, it will be wholly impracticable to re-establish his usefulness amongst his pre* sent flock. Wherefore, the elders and deacons earnestly entreat the reverend classis, to take such measures . , . , . , „ mg the premises, as the excellent constitution and rules or the Reformed Protestant Dutch Church prescribe, and the nature of the case imperiously requires.</p> <p>S. V. Rensselaer, President P. 71”</p> <p>That the said representation was, by the direction of the said elders and deacons, in the said consistorial meeting, signed by the said Stephen Van Rensselaer, as their president pro tempore, and, on the 7th day of September in the year last mentioned, delivered to the president of the said classis of Albany, and that a copy thereof was, previous to such delivery to the said president, duly served on the plaintiff below. That a meeting of the said classis was regularly convened and held, in pursuance of a call for that purpose by the president thereof, to investigate the truth of, and decide upon the matters set forth in the said representation, at the city of Albany, on the 13th and 14th days of September, in the year lastenentioned. That the plaintiff below appeared before the said classis of Albany, at the said meeting thereof and the said representation was openly and distinctly read in the said classis, to the plaintiff below, who then and there alleged and objected, * that the said classis was not constitutionally convened, which objection and allegation, and the reasons then and there urged on the part of the said plaintiff below, in support thereof, having been duly considered by the said classis, were then and there overruled. That the classis then proceeded to investigate, whether the reports set forth in the aforesaid representation, to be in circulation against the said plaintiff below, of repeated instances of inebriety, were of such continuance and extent as to constitute what is called common fame; and that the said plaintiff below attended such in vestigation, and had leave to cross-examine the witnesses. That after several witnesses had been duly sworn and examined before the said classis, relative to the continuance and extent of said reports, and the evidences of the said witnesses had been duly considered, the said classis then and there adiudged and determined, that the continuance and eX< , ° . ’ of the said reports against the plaintiff below, ch’argT. - V .' „ Í , ’ ° mg him with inebriety, were of such- á nature' as to con* statute what, in the constitution of the aforesaid church,, is termed “ common fame.” That the said elassis thereupon required the said consistory of the Reformed Protestant Dutch Church, in the city of Albany, by their special delegates appointed to attend the said elassis at the time last mentioned, to furnish the said elassis- with specific instances- or charges of inebriety against the satidplamtiff below, and the names- of witnesses to prove- the same. That such specific instance's or charges, and the names of divers witnesses to prove the- same; were thereupon furnished to the said' elassis, at the last" mentioned! meeting, by the said special delegates, in behalf of the said consistory, which were then and there- openly read1 in= -the said elassis to the plaintiff below. , That the plaintiff below, on being called upon by the said! el'assis- to- answer to- the said charges, then and there denied, the truth- of the', said charges, and thereupon requested' time of the saidclassis to prepare- for his defence, which- was granted! to' him By the said elassis until the 23d day of October then next3 ensuing; and that *the said elassis- then and there also gave leave to the said consistory, by their special delegates, to add a designation of other instances of the inebriety of the plaintiff below, with the names of witnesses to prove the same, upon condition that & copy ©f such additional designations and names' of witnesses, should' be served upon the plaintiff below 14 days previous to the next meeting of the said elassis-; and that the said- elassis thereupon adjourned, to meet again on-the. said'2'3'd' day’ of 'October; in the year-last mentioned, in the said city of Albany, to enter upon the- aforesaid" investigation-. That the sai'd elassis met, pursuant, to adjournment, on- the day" and:year; and at the place1 last mentioned,-and the said' consistory, by their said special delegates, then and there-exhibited- to the said elassis, divers' additional specifications of' instances- of" the inebriety of the plaintiff belo-w,- with' the names of witnesses to prove the'same,- of which" a copy had been duly served on the plaintiff below. 14 days previous to the last, mentioned meeting of the said classis, at which last meeting, the said additional specifications were also read to the plaintiff below, in the said classis, who, on being required by the said classis to answer thereto, then and there denied the truth thereof. That the said classis then and there proceeded, from day to day, to investigate the truth of the said instances of inebriety of the plaintiff below, specified and furnished to them as aforesaid by the said consistory, by the said special delegates, and to hear the proofs and allegations in support thereof, until the 3d day of November, in the last mentioned year. That on the day and year last mentioned, the said classis, at the special instance of the plaintiff below, adjourned, to meet again in the said city of Albany, on the 27th day of November, in the same year. That on the day and year last mentioned, the said classis met, pursuant to their said adjournment, in the said city of Albany, and then and there proceeded to hear, as well the proofs and allegations of the said plaintiff below, in his defence, as the further proofs and allegations of the said consistory, by their said special delegates, touching the said instances of the inebriety of the plaintiff below, '“and continued such hearing from day to day, until the 2d of December, in the year last mentioned, when, after duly considering all the said proofs and allegations, the said classis pronounced the following decisions and sentence thereon, to wit:</p> <p>“ Besohed, That the Reverend Doctor John M. Bradford be, and he hereby is pronounced guilty of repeated instances of inebriety and intoxication.</p> <p>Whereas, sobriety in ministers is essentially connected with the honor of religion and success of the gospel: And whereas, the Reverend Doctor John M. Bradford has been found guilty of repeated instances of inebriety or intoxication": therefore,</p> <p>Besohed, That the said Doctor John M. Bradford be, and hereby is, suspended from the office of the ministry, until he shall give the classis evidence of repentance and reformation.”</p> <p>That after the decision and sentence of the said classis were made and pronounced as aforesaid, in and by the said classis, on the day and year last mentioned, the plaintiff below, in his own proper person, then and there gave notice to the said classis, that he appealed from their said decision to the particular synod of Albany, which notice of appeal was then and there duly entered by the said classis on the minutes of its proceedings. That afterwards, to wit, at a regular meeting of the said particular synod of Albany, held in the city of Albany, on the 16th day of May, 1821, the said appeal of the plaintiff below was brought to a hearing by the plaintiff below, before the said particular synod of Albany, and after hearing, as well the allegations of the said plaintiff below, in support of his said appeal, as the reasons assigned by the said classis in favor of their said decisions and sentence against the said plaintiff below, and after duly examining and considering the whole evidence before the said classis, relative to the subject of the said appeal, the said particular synod of Albany then and there made the following decision on the said appeal, to wit:</p> <p>*“ Besolved, That the appeal of Doctor Bradford, from the decision of the classis of Albany, declaring him guilty of repeated acts of inebriety, and suspending him from the gospel ministry until he give satisfactory evidence of repentance and reformation, be not sustained.”</p> <p>That the plaintiff below, at the time and place last mentioned, appealed from the said decision of the particular synod of Albany against him upon his said appeal, to the general synod, which appeal was then and there duly entered on the minutes of the said particular synod of Albany.</p> <p>That afterwards, to wit, at a regular meeting of the said general synod, held in the city of Albany, on Wednesday, the 6th day of June, 1821, and continued by adjournment from day to day, until the 14th of June, in the year last mentioned, the plaintiff below brought his said last mentioned appeal to a hearing before the said general synod, and that after hearing, as well the allegations and reasons of the plaintiff below, in support of his said last mentioned appeal from the decision of the particular synod of Albany, affirming the aforesaid decision and sentence of the said classis of Albany, against the plaintiff, as the reasons of the said particular synod in support of their said decision of affirmance; and, after duly examining and considering all the. evidence before the said particular synod, to the matters of the last mentioned appeal, the said general synod, on a motion to sustain the said appeal, decided the said motion in the negative, and thereby affirmed the said decision of the said particular synod of Albany, so as aforesaid appealed from by the plaintiff.</p> <p>That the said general synod, at its said meeting and immediately after making its aforesaid decision, agreed to and passed the following resolution, to wit:</p> <p>“ Resolved, That the classis of Albany be, and they are hereby advised, to proceed to dissolve the pastoral connection between the congregation of the the Reformed Protestant Dutch Church in the city of Albany, and the Reverend Doctor Bradford.”</p> <p>*That at a meeting of the said classis of Albany, regularly convened and held at the said city of Albany, on the 26th day of June, 1821, to take into consideration the last mentioned resolution, the plaintiff appeared, and was requested by the said classis to show cause, if any he had, why the said resolution should not be carried into effect by the said classis, and that the said classis of Albany then and there made the following decision thereon, to wit:</p> <p>“ Resolved, That the pastoral connection which has subsisted between the said Reverend John M. Bradford and the congregation of the Reformed Protestant Dutch Church in the city of Albany, be, and the same is hereby dissolved.”</p> <p>The counsel for the plaintiff below thereupon offered in evidence, and the counsel for the defendants below admitted, that the classis of Albany, on the 22d day of February, 1821, passed the following resolutions, to wit:</p> <p>“ Whereas, the elders and deacons of the church of Albanv have, in a certain memorial presented to this classis, r A , ’ ■ . . . ' Praye<a a dissolution of the pastora] connection existing between Doctor John M. Bradford and the said church of 4-lbany: And whereas, the said John If. Bradford has been regularly tried by the classis, and found guilty of repeated instances of inebriety: Therefore,</p> <p>Besolved, That the petition of said elders and deacons be granted,, and that the pastoral connection existing between the said. John M. Bradford and the church of Albany, be, and the same is hereby dissolved.”</p> <p>That the plaintiff below afterwards duly appealed from the foregoing resolution of the classis, dissolving the said pastoral connection, to the particular synod of Albany, which appeal was not sustained, and the same resolution was confirmed according to the resolution of the 21st of May, 1821, before set forth. That the plaintiff below duly appealed therefrom to the general synod, which, on the 14th of June, 1821, sustained the said appeal, as to the dissolution of the pastoral connection, and adopted the following resolution:</p> <p>Besolved, That the second appeal of the Rev. Doctor Bradford, from the decision of the particular synod of Albany, confirming the decision of the classis of Albany, dissolving the pastoral connection between him and the church of Albany, be, and the same is hereby sustained.” That the. said synod,, on the same day last aforesaid, passed the following resolution;</p> <p>“ Besolved, That the classis of Albany be, and, they hereby are advised to proceed to dissolve the pastoral connection between th.e congregation of the Protestant Dutch Church, in the city of Albany, and the Reverend John M. Bradford.”</p> <p>That in pursuance of the said recommendatory resolution, the said classis afterwards, on the 26th day of June, 1821, after reciting the same, passed the following resolution :</p> <p>“ Besolved, That the pastoral connection, which has subsisted between the said Reverend John M. Bradford, and the congregation of the Reformed Protestant Dutch Church in the city of Albany, be, and the same is hereby dissolved.”</p> <p>The rules of church government, established in the national synod, held at Dordrecht, in 1618 and ’19, and the articles explanatory of the government and discipline of the Reformed Dutch Church iti the United States of America, were then given in evidence by consent. These consisted of 159 articles, in the whole, (among other things,) creating and fixing the jurisdiction of the various judicatories, who acted concerning the plaintiff below. If is necessary to give only such parts at length, as were referred to in the arguments of counsel, or the opinions of the judges:</p> <p>ARTICLES OF THE NATIONAL SYNOD OF DORDRECHT.</p> <p>ART. X.</p> <p>A minister, being lawfully called, may not forsake the church or congregation where he is regularly settled, in order to accept a call elsewhere, without obtaining the previous ^consent of the Consistory and deacons, and of those who have formerly borne those offices, together with the approbation of the classis. And in like manner, shall no church be permitted to receive him, before he has produced sufficient credentials of his regular dismission from the church and classis where he last officiated.</p> <p>ART. XL</p> <p>In like manner, the consistory, as representing the congregation, shall bé bound to provide their ministers with a decent support, and shall not forsake them, without the knowledge and decision of the classis; who shall determine, on complaint made of a deficiency of support, whether such minister shall be removed or not.</p> <p>ART. XII.</p> <p>A minister of the word, being once lawfully called, in manner before mentioned, is bound to the service of the sanctuary as long as he liveth. Therefore, he shall not be at liberty to devote himself to a secular vocation, except for great and important reasons, concerning which the classis shall inquire and determine.</p> <p>ART. XIII.</p> <p>If a minister become incapable of performing the duties of his office, either through age, sickness, or otherwise, such minister shall, notwithstanding, retain the honor and style of his office, and be provided with an honorable support by the churches to which he hath' ministered. Provision is, in like manner, to be made for the widows and orphans of ministers in general.</p> <p>ART. XIV.</p> <p>Whenever it shall become necessary that ministers, for the reasons before mentioned, or for any other cause, should desist for a time from the exercise of their office, (of which the consistory is to judge,) they shall, notwithstanding, continually be subject to the call of their congregations.</p> <p>*ART. XLI.</p> <p>The classical assemblies shall be composed of neighboring churches ; each of which shall send one minister and one elder, with proper credentials, to the place, and at the time agreed upon at the rising of the preceding classis; provided always, that the intervals between the classical meetings shall not exceed three months. In those assemblies, the ministers shall preside in rotation, or otherwise a praeses shall be appointed by the members, so that the same person, however, be not chosen twice successively. The praeses shall, moreover, inquire of the members respectively, whether they observe their consistorial meetings; whether church discipline be.exercised; whetherthe poor, and the schools are properly taken care of; and whether they stand in need of the advice and assistance of the classis, in any thing respecting the regulation of their churches. The minister, who was appointed by the last preceding classis, shall, at the opening of the session, deliver a sermon, of which the other members are to judge, and to point out its defects, if any there be. Lastly, the classis shall, at their meeting next preceding that of the particular synod, appoint delegates to attend the said synod.</p> <p>ART. LXIX.</p> <p>If ministers of the word, elders or deacons, have committed any public gross sin, which is scandalous to the church, or punishable by civil magistrates, the elders or deacons shall immediately be removed from their office, by the previous determination of the consistory of their own, and next adjacent church'. But the minister shall be suspended; and it shall be left to the decision of the classis, whether they shall be wholly deposed or not.</p> <p>ART. LXXX.</p> <p>The following are to be considered as the principal offenses that deserve the punishment of suspension, or removal from office, viz. false doctrine or heresy, public schisms, open blasphemy, simony, faithless desertion of ^office, or intruding upon that of another, perjury, adultery, fornication, theft, acts of violence, brawlings, habitual drunkenness, and scandalous traffic; in short all such sins and gross offenses, which render the perpetrators infamous before the world, and which, in a private member of the church, would be considered as deserving excommunication.</p> <p>ARTICLES EXPLANATORY, &o., IN THE U. S. OE AMERICA.</p> <p>ART. XVI.</p> <p>Every minister must consider himself as wholly devoted to the Lord Jesus Ohrist, in the service of the church; and shall faithfully fulfill the obligations of his call, in preach* ing, catechising, and "visiting his flock; and be instant in season and out of season; and by word and example always Promote the spiritual welfare of his people.</p> <p>ART. XVI.</p> <p>Ministers who, by reason of old age, or habitual sickness and infirmities, either of mind or body, are not capable of fulfilling the duties of the ministry, may, upon application, and sufficient proof-of such incapacity being made to the classis, be declared emeriti, and be excused from all further service in the church during such infirmity; reserving, however, to them, the title, rank and character which, before such declaration, they enjoyed. In al! süch cases, the classis, shall make it a condition, previous to any minister’s becoming emeritus, that the congregation enter- into stipulations, obliging them to a reasonable and annual support to their pastor, who has grown old, or become sick and infirm in their service.</p> <p>art. xxxv.</p> <p>A neighboring minister, (if there is none belonging to the consistory,) must be invited to superintend the proceedings, whenever a consistory is desirous of making a call. The instrument is to be signed by all the members of the consistory, or by the president, in the name of the -consistory ; and if the church is incorporated, it is proper to affix the seal of the corporation. When the call is completed, it must he laid by the consistory before the classis, and he approved by the same, before it can be presented to the person called. And if the call be accepted, the approbation of the people must be formally obtained by the consistory, (agreeably to Art. iv. of the Church Orders,) before the minister may be ordained.</p> <p>ART. xxxvi.</p> <p>The forms of calls have hitherto varied. In many, it has been customary to enumerate all the particular duties to be performed by the minister: but as those duties are _ .■r. , : % ,ii sufficiently ascertained, it is judged unnecessary to burthen the instrument with a repetition ot what the very office ol a minister implies. For the sake of propriety, therefore, as well as uniformity, it is recommended to the churches, for the future, to adopt the following form of a call, viz.</p> <p>{Then follows a form, with which the call in this case substantially ayrees.)</p> <p>Glassis are invested with the power of approving or disapproving calls, and of ordaining or deposing ministers, or dismissing them when called elsewhere. They have cognizance of whatever respects the welfare of their particular churches, for the management of which the consistories may be incompetent. To. the classis also appertain the receiving and determining all appeals from consistorial adjudications, as well as all cases respecting either ministers or people which may arise within their jurisdiction, and are regularly brought before them; the forming new congregations, and determining the boundaries, when contested between congregations already formed; the continuing combinations, or the dissolution or change of the same, as may be requested by the people or be judged necessary among the respective congregations.</p> <p>ART. LXI.</p> <p>Great attention shall always be paid, by all ministers of the gospel, to the instruction of youth and others in "their respective congregations, in order to prepare them to make a confession of their faith, and from proper principles and right views, as members in full communion, to approach the Lord’s table. If any minister shall habitually neglect to catechise the children and youth of his congregation, it shall be the duty of the elders to urge him to it; and if he shall, without a sufficient reason, notwithstanding the remonstrance of his elders, continue to neglect the same for one whole year, he shall be reported by his elders to the classis> that measures may be taken to oblige him to fulfill w^at *'*ie ®ef°rmed Dutch Church has always considered a very important and necessary part of the ministerial duty,</p> <p>ART. LXIH.</p> <p>In article 23 of the church orders, it is mentioned as a duty incumbent upon ministers and elders, to visit the members in full communion of their respective congregations, previous to the administration of the Lord’s supper. These visitations, when performed with prudence and proper solemnity, have been found to be productive of many rood and happy consequences. It is therefore expected that every minister, accompanied with an elder, will, (unless it be judged impracticable by the consistory,) at least once in every year, visit all the members of his church, and endeavor to remove all animosities that may have arisen, and excite them to peace and proper exercises of faith and holiness. Ministers and elders who shall habitually neglect this duty, shall be called to account in their respective classis, and be prompted to attend to the same. And all classis are enjoined to make particular inquiry, whether this duty is punctually fulfilled in the respective congregations within their district.</p> <p>ART. LXXI.</p> <p>Ministers of the gospel must be an example to believers, and much of their success will usually depend upon their good character, and their holy walk and conversation. Their conduct must, therefore, be watched over with great attention, and their crimes punished with impartiality and ^severity. In admitting accusations against a minister, the rule prescribed by the apostle, (1 Tim. v. 19,) shall always be observed; and accusers must come forward openly to support the charge, unless where common fame has rendered a scandal so notorious, that the honor of religion shall require an investigation.</p> <p>ART. LXXII.</p> <p>When it is said (Art. 79 of Church Orders) that minis- . . , . ' , . ters. guilty of atrocious crimes, shall be suspended from the exercise of their office by the consistory, until they are tried by the classis, it is only intended, that in certain public and notorious offences, which would render the appearance of a minister in the pulpit, in such a situation, highly offensive, it shall be the duty of the consistory, in order to prevent scandal, to shut the door against such criminal, and refer him to be tried by the classis as soon as possible. The proceedings of the consistory in such cases, is at their peril, and is not to be considered as a trial, but only a prudent interference, and binding over the person accused, to the judgment of his peers.</p> <p>The defendants below insisted on these matters as a bar to the plaintiff’s action. The judge decided they were not so; and the. defendants below excepted. The cause was afterwards heard at bar, and judgment rendered by the supreme court for the plaintiff below; and it came here on error founded upon the bill of exceptions.</p> <p>The reasons for the judgment of the court below were now assigned by</p> <p>Sutherland, J., substantially as they were rendered on giving judgment there; on which occasion he remarked as follows:</p> <p>Sutherland, J. “This is an action of covenant, brought by the-plaintiff, to recover from the defendants a portion of the salary which he alleges remains due to him, at the "rate of two thousand dollars per annum, from the 2d of December, 1820, to the 26th of June, 1821.</p> <p>It is admitted by the defendants, that the plaintiff’s salary during that period has not been paid; and they contend *that having been suspended from his office of the ministry on the 2d day of December, 1820, and having performed none of his pastoral duties subsequent to that period, his right to his salary ceased from that day, although the pastoral connection existing between him and the church, was not formally dissolved until the 26th of T rnnt 1 U 1 June, 1821; and the ease resolves itself into the inquiry, whether, according to the contract between the parties, the performance of his clerical duties was a condition precedent to the plaintiff’s right to his salary; or whether, as he contends, he is entitled to it as long as he remained the minister of this church, although, in consequence of his suspension, he may not have performed the duties of their pastor.</p> <p>The agreement of the defendants, upon which this suit is founded, is contained in the call which they gave the plaintiff to become their minister, on the 12th June, 1805; and the material part of it is as follows:</p> <p>“ To free yon from wordly cares and avocations, whilst “ you are dispensing spiritual blessings to us, we, the min- “ ister, elders and deacons of the said church, do promise “ and oblige ourselves and our successors, to pay you the “sum of-— dollars, yearly and every year, in quarterly “payments, as long as you continue our minister in the “ said church.</p> <p>Both parties admit, that they are hound by tire constitution and rules of the Reformed Dutch Church; and that the different church tribunals who have passed upon this case had competent authority, under the constitution and rules of the church, to institute the proceedings, and pronounce the decisions disclosed in the case. It is very clear, that the suspension of the plaintiff by the classis of Albany, in December, 1820, was considered by that tribunal, as well as the parties, as disciplinary merely, and not as dissolving the connection between the pastor and his congregation* He was suspended until he should give, the classis evidence of repentance, and reformation. It was intended to admonish him of the impropriety of his ^conduct; and it was hoped' that it would produce such an effect upon his habits abd manners, as to render any further proceedings unnécessary. Having failed to produce this effect, the classis,' in February, 1821, dissolved the connection. Upon appeal to the general synod, this order was reversed, probably for some informality, as they at the same time recoup? mended to the.cjassis to take the necessary measures to dissolve the connection, which was accordingly done on the 26th of June, 1821. All the authorities of the church, therefore, considered the relation of pastor and congregation as subsisting between the parties until that time; and in the view of the constitution and laws of the church, the plaintiff was undoubtedly their minister up to that period. The church was not vacant. They could not have called another minister.</p> <p>Upon a consideration of the nature of the connection, as well as the terms of the contract between the parties, I think it is apparent, that it was not their intention to make the performance of all his duties as pastor, a condition precedent to the plaintiff’s right to his salary. The general duties of a minister of the gospel are enumerated in the call; and the expectation of the defendants, that the plaintiff will perform those duties, agreeably to the constitution and rules of the church, is expressed. But the covenant of the defendants is to pay him- his salary, not as long as he, shall perform his duties, but as long as he shall remain their minister. It was not the intention of the parties that the plaintiff should be put to the proof of the unremitted performance of all the various duties belonging to his station before he could compel the payment of his salary. If the performance of those duties was a. condition precedent, it would be incumbent on the plaintiff to aver and prove it; and a failure in any would be fatal to his right to recover.</p> <p>Both parties, by the terms of the call, acknowledged themselves to be subject to the ecclesiastical judicatories of the Dutch Church; and the defendants well knew that they had an ample and prompt remedy for the neglect or misconduct of the plaintiff, in -the power of those judicatories, to dissolve the connection between them.</p> <p>If the cause of complaint was of a nature which required pnly the disciplinary interference of the authorities of the church, such as admonition or suspension, it was proper in itself, and evidently so considered by the church, that the pastor should not be deprived of the means of subsistence during the period of his probation. Ministers, like other men’ are Su^jec* to temptation and to error; and the spirit of Christianity and the laws of every well regulated church . , J • . . , , _ " • „ ,6 , , require, that opportunities should be afforded them for repentance and reformation, without their enduring the pains and penalties of starvation.</p> <p>The call in question was conceived in this spirit: it binds the defendants to pay the plaintiff his salary as long as he shall continue their minister in the said church. In the event of any difficulties between the parties, which shall require the interposition of the authorities of the church, and occasion- a suspension of the clerical duties of the pastor, the church assumes the burthen of his support while these difficulties are in the progress of trial and adjustment.</p> <p>This appears to me to be the fair construction of the contract between the parties.</p> <p>I am accordingly of opinion that the plaintiff is entitled to judgment for the damage assessed.”</p> <p>Savage, Oh. J.¡■(dissenting.) “ The plaintiff’s right to recover, depends on the construction to be given to the call by the defendants, which contains the contract between the parties. Although the call is signed by the defendants only, yet it contains stipulations on the part of the plaintiff, which constitutes the consideration for the agreement by the defendants for the payment of the plaintiff’s salary. The plaintiff, by accepting the call, became (if he was not previously) subordinate to the constitution of the Reformed Dutch Church, besides undertaking generally to fulfill the whole work of the gospel ministry. He expressly stipulates, that besides preaching5 on the Lord’s *day, and explaining part of the catechism, he will conform in rendering all that public service which is usual, and has been in constant practice in the congregation. By explanatory article 14, every minister must consider himself as wholly devoted to the Lord Jesus Christ in the service of the church; and shall faithfully fulfill the obligations of his call, in preaching, catechising and visiting his flock; and be instant in season and out of season; and, by word and example ; always promote the spiritual welfare of his people.</p> <p>The defendants "engage to pay the plaintiff fifteen hunw w . , dred dollars yearly, and every year, in quarterly payments, as long as you continue our minister in the said church, while unmarried, and after his marriage two hundred and fifty dollars in addition, during the continuance of your ministry in the said church. The salary was afterwards raised to two thousand dollars.</p> <p>Here are mutual covenants. Though the instrument is not signed by the plaintiff, yet, by accepting the call, he obligated himself to perform the stipulations on his part; and though, in terms, it is not said that the defendants agree to pay, in consideration of the services to be rendered by the plaintiff, yet that is understood by the good sense of the instrument. The plaintiff was not to receive the salary for becoming the minister of that church, but for performing the duties of that office ; and could it ever have been the intention of either of the parties that the salary should be paid, though no services were ever rendered ? The plaintiff continued to be the minister of the church till June, 1821, though he rendered no service after the 2d December, 1820, and was in fact incapacitated, by his own acts, from rendering any services. The case of Martyn v. Bind, (Oowp. 437,) was an actioa by a curate against a rector, for a salary. The agreement was contained in a certificate to the bishop, in which the defendant said, “ I, Eichard Hind, rector of St. Anns, do hereby nominate and appoint the Eev. Thomas Martyn to perform the office of curate in my church of St. Anns aforesaid; and do promise to allow him a yearly sum of fifty guineas for his ■^maintenance in the same, and to continue him to officiate in my said church, until he shall be otherwise provided of some ecclesiastical preferment, unless, by any fault of him committed, he shall be lawfully removed from the same.” One objection to the plaintiff’s recovery was, that he had not been licensed by the bishop, which Lord Mansfield thought the defendant had waived: but in commenting upon it, remarks, “ If, after reasonable notice, he does "not procure every qualification necessary to enable him to do the duty, the defendant would be excused from paying him the salary; for the plaintiff’s service, a? curate is not on^ consideration, hut the condition of the salary.” This ease was cited as good law hy this court, in The firsi Religious Society of Whitestown v. Stone, (7 John. 115.) In that case, the contract of the defendant was to pay annually five dollars, so. long as the Rev,. Mr.; Snowden administered the gospel in said society, and. the defendant resided within four miles of the meeting-house. This court said, the consideration was the preaching of the gospel by the Rev. Mr. Snowdenand as long as he. continued to administer the gospel, and the defendant, to reside within the specific distance, SO: long was the defendant bound by his contract. It could not be dissolved but by mutual consent, nor cease to be obligatory, until the minister ceased to render the, service,</p> <p>Every contract must be construed according to the true intent and meaning of the parties. Unless, therefore, we can suppose that the defendants intended to pay the salary, in consideration of the plaintiff’s being nominally the minister*, whether any services were performed, or not, the plaintiff ought not to recover. It is said, that the suspension of the plaintiff was disciplinary merely, and did not dissolve the connection; that is undoubtedly true, but does not, in my .opinion, affect the question. Suppose the ecclesiastical judieatori.es had thought proper to suspend the plaintiff for one year or five years, and refused to dissolve the connection between him and the defendants, they must in that ease he destitute of the ministry *and gospel ordinances, or they must employ some other person, and of course must pay such person for his services. The defendants in that ease would be punished for the misconduct of the plaintiff. Could such a relation between the. plaintiff and defendants he construed a continuance in the. ministry of the church, within the plain meaning and intent of the contract ? I think not,</p> <p>' In. the case, of Dieffendorf v. The Reformed Calvinistic Church, (20 John. 12,) the proceedings-of the classis were held; irregular- and. void; and, the court take notice of the fact, that Mr. -Wack uniformly continued to exercise his ministerial office and character. Hot so in this case; no services have been rendered by the plaintiff since the 2d of December, 1820. Having been suspended for conduct unbecoming the ministerial character, he stands in no better situation than if he had, without cause, refused to render the services stipulated by this contract. Considering those services not only as the consideration, but the condition on which his right to the salary depends, and he having failed in performance of that condition, he has no right to the salary. The defendants are entitled to judgment.”</p> <p>Judgment for the plaintiff.</p> <p>stated that he should insist on the judgment below being "reversed upon the following grounds:</p> <p>1. Because, according to the sound construction of the covenant declared upon, the performance by the plaintiff in the court below, of the pastoral duties specified and referred to in the covenant, is a condition precedent, in consideration whereof, the defendants in the court below bound themselves and their successors, to pay him the stipulated salary.</p> <p>2. Because, agreeably to the terms and true intent of the covenant, the plaintiff in the court below, by accepting the call which it contains, assumed to perform faithfully all the duties therein specified and referred to, and, inter alia, to maintain a holy walk and conversation, so as to be an example to believers.</p> <p>*3. Because, by a regular sentence of the ecclesiastical judicatories of the Reformed Dutch Church, to whose jurisdiction the plaintiff in the court "below became subject on accepting the call, he was suspended from the office of the ministry during the whole time for which he demands salary, -for the sin of repeated inebriety.</p> <p>4. Because, in consequence of such suspension, the plaintiff in the court below, by reason of his own wilful misconduct, was disqualified, during the whole time, to perform any of the duties of a gospel minister, expressed in and con^emP^a*:ed- by the call contained in the covenant; in consideration of the performance whereof, the defendants . , , , . ,. , - . , , m the court below obligated themselves by the covenant to Pa7 him the specified salary.</p> <p>> 5. Because, the covenant being executed only by the defendants in the court below, and the duties to be performed by the plaintiff in the court below being altogether of a spiritual nature, no action at law can be sustained for their non-performance by the defendants, against the plaintiff; nor can the defendants defend themselves in an action at law upon the covenant for salary, although the plaintiff has, by reason of his own wilful misconduct, been regularly disqualified to render any of the stipulated services, as a gospel minister, which would have entitled him to the salary, unless performance on his part is a condition precedent.</p> <p>6. Because the suspension of the plaintiff in the court below, from the office of the ministry, suspended his legal right to salary by virtue of the covenant, during his suspension from office; for the salary was a compensation covenanted to be paid to the plaintiff for pastoral services, and not for his support as a suspended minister, in the event of his suspension by reason of his own misconduct.</p> <p>7. Because, though the object of every ecclesiastical sentence against a minister of the gospel, or any other member of a church, is disciplinary; yet, in case of a gross offence, and especially by a minister, the honor of religion requires that he should be suspended from his sacred office, until, by sincere repentance and reformation, he shall *merit restoration.- In such a case, suspension from office necessarily suspends the claim which, in virtue of his office, he had acquired by a pastoral call from a congregation, to salary for pastoral services. This results from an obvious principle of justice, that no man shall recover a compensation for services, which he has, by reason of his own wilful misconduct, been incapacitated to perform.</p> <p>8. Because it subjects the plaintiff below to no peculiar inconvenience, if performance on his part is considered a condition precedent; inasmuch as a court of law will intend he has performed regularly, while he continues actually to officiate in his pastoral office, until the competent ecclesiastical tribunals have decided otherwise; but when he has been ecclesiastically suspended, as in this case, and the fact of non-performance by reason thereof, is rendered indisputable, it would seem repugnant to common sense, as well as to justice, that he should be allowed to recover salary for pastoral services, which he, by his own misconduct, was incapacitated to perform.</p> <p>The counsel then stated the facts, adverting particularly to the various proceedings of the ecclesiastical judicatories, to which he said the defendant in error was amenable by the express terms of his call, and the articles of the national synod of Dordrecht, (art. 79, 80,) and then spoke as follows in relation to the first point:</p> <p>In discussing this point, the nature and intent of the call is to be considered.</p> <p>It is an instrument executed by the plaintiffs in error, under their common seal, setting forth, that their church was destitute of the stated preaching of the word, and the regular administration of the ordinances; that they were desirous to obtain both; and that being satisfied of Mr.</p> <p>Bradford’s piety and gifts, and cherishing a good hope that his pastoral labors would be attended with a blessing, they invited and called him to become their pastors and teacher, to preach the word in truth and, faithfulness, to administer the holy sacraments, and, a sa faithful servant of the Lord Jesus Christ, to fulfill the whole work of the gospel ministry, agreeably to the word of God and the rules and ^constitution of the Dutch Church, under which the plaintiffs in error were placed, and to which he, upon accepting the call, should become subordinate. (See Bxpl. Art. 14.)</p> <p>It then details some particular official duties which are prescribed by the Dutch Church, and concludes thus:</p> <p>“To encourage you in the discharge of the duties of your important office, &c.” (The concluding paragraph of the call, ante, 458, 459.)</p> <p>Hence it appears manifest, that the faithful performance of Mr. Bradford’s pastoral -duties,- which are comprehended ^ ca^ wag the declared inducement to make it, and the consideration and condition of the salary. The rule is we-H settled, that in construing contracts, the intent of the contracting parties must govern, so far as it is consistent with law; and the application of this rule to the present, case, supports decisively our -construction of the instrument in question. Nor are indisputable authorities wanting to maintain' it. In Martyn v. Hind, (Cowp. 437,) which was the case of a curate employed by the rector of St. Ann’s, to assist him in the performance of official duties, the court said, that the plaintiff’s service as curate, was not only the consideration, but the condition of the salary, which the defendant had contracted to pay. In The first Religious Society of Whitestown v. Stone, (7 Johns. Rep. 115,) which was a suit against a subscriber to the salary of the Bev. Mr. Snowden, the court referred, in terms of unequivocal approbation, to the doctrine laid down in Martyn v. Sind, and said, that the defendant’s obligation to pay continued so long as Mr. Snowden’s service continued, and would cease when his service ceased. And in Dieffendorf v. The Reformed Calvinistio Church of Canajoharie, (20 John. Rep. 12,) which came up by certiorari from a justice’s court, who had rendered judgment against Dieffendorf, as a subscriber to the salary of the Bev. Mr. Wack, the court reiterated the same doctrine; and placed the continued liability of Dieffendorf to pay the subscription, upon the ground of Mr. Wack’s continued '-^pastoral service, agreeably to the decision of an ecclesiastical judicatory of competent jurisdiction.</p> <p>These authorities clearly establish the point, that the performance of Mr. Bradford’s pastoral duties, was not only the consideration, but the condition of the salary; and therefore a condition precedent.</p> <p>I will now proceed to show, by direct authorities, what constitutes a condition precedent. In Thorp v. Thorp, (12 Mod. 455,) Lord -Holt said, where one promise is made in consideration of another, that which forms the consideration must be first performed, and is a condition precedent. In Jones v. Barkley, (Doug. 684,) Lord Mansfield said, that the dependence or independence of covenants, is to be , , . . -. L, . lected from the sense and meaning ot the parties; and their precedence must depend upon the order of time in which the transaction requires their performance. And in Barruso v. Madan, (2 Johns. Rep. 148,) Mr. Justice Spencer said, “ Ño technical words are necessary to render a stipulation a condition precedent; but it rests in the good sense and understanding of the parties, and. the acts to be performed by them respectively.”</p> <p>If this be sound law, and that it is, will, I apprehend, not be disputed, the conclusion would seem to follow irresistible, that Mr. Bradford’s faithful performance of the pastoral service prescribed by the call, was a condition precedent, inasmuch as it was not only the declared inducement to the call, but the consideration of the salary ; and in order of time, according to the express terms of the instrument, the service was to precede the quarterly payments ; and this conclusion is fortified by the very language of the plaintiff’s stipulation. What is it ? “ To free you from worldly cares and avocations, whilst you are dispensing spirit* ual blessings to us, we promise and oblige ourselves and our successors to pay you the sum of $- yearly, in quarterly payments.” How were those spiritual blessings tobe dispensed ? By Mr. Bradford’s faithful performance of his assumed pastoral duties. For the stipulation to pay, refers to the actual performance of those duties, as the means of dispensing them; and if it does, -such performance must be a condition precedent to his right to demand the stipulated salary.</p> <p>As to the other points. By reason of Mr. Bradford’s suspension from the office of the ministry, he not only did not perform, but was wholly incapacitated, in consequence of misbehavior, to perform any pastoral duties during the whole time for which he seeks to recover the salary. Can such a recovery be allowed by a court of law, without outraging justice, and the good sense and honest meaning of the contract in question ?</p> <p>But the doctrine for which I contend, seems to be partioularly adapted to the present case. For it will be seen, by inspecting the call, that the plamtms m error alone have executed it. Hence there can be no other ground of legal resistance to a suit for salary, after Mr. Bradford’s capacity to render the stipulated service ceased, in consequence of his suspension from office. Is the court prepared to say to the plaintiffs in error, “ Your defence is unjust ?” or is it prepared to say the defence is not warranted by the good sense of the contract, or supported by established law ? I trust not.</p> <p>Again; it is obvious, from the nature of this contract, that the plaintiffs in error cannot recover damages of Mr. Bradford for the breach on his part. Why? Because the law furnishes no rule of damages for the spiritual injury which the congregation may have sustained by means of his default. Hence the court will perceive, that if the defence set up by the plaintiffs in error is overruled, they must only pay to Mr. Bradford the reward of faithful service in the sacred office of a minister of the gospel, after he was suspended from it for misbehavior; but they are without any legal remedy for the wilful violation of his part of the contract. And if the law is so, it is high time that every religious society should fully understand it, in order that it may provide against the application of its appropriated means for the support of the gospel, to the support of a man who has forfeited the. right to preach, and been suspended from the sacred office of a gospel minister.</p> <p>The whole controversy between these parties, depends on the construction of the covenant in question; that is to say, whether the services of the defendant in error were a strict condition precedent to the payment of the salary. We contend that when this covenant is viewed in connection with the constitution and rules of the Reformed Dutch Church, those services will appear not to have been a condition precedent; that the covenant, according to its true construction, was, to pay the salary so long as the defendant in error continued the minister or pastor of the plaintiffs in érror. Such is the true con* struction in the reason and nature of things. If not so, we aver that no minister of the Reformed Dutch Church could ever enforce the payment of his salary, if his church should think proper to contest the payment. A perfection and an extent of duty is required, which it is beyond human nature to perform. A strict and entire fulfillment is required by the argument for the plaintiffs in error, in all parts of the minister’s duty. This may be prevented in many ways; some by his own fault, and many over which he has no control.</p> <p>It cannot be deniéd that both these parties are expressly bound by the rules and constitution of the Reformed Dutch Church. But we contend that the sentence of the classis of Albany, of the 2nd of December, 1820, suspending the defendant in error from the office of the ministry, until he should give the classis evidence of repentance and reformation, was disciplinary merely, and did not dissolve the pastoral connection between the defendant in error and the Reformed Protestant Dutch Church in the city of Albany; and, therefore, did not affect the right of the defendant in error to his salary.</p> <p>By the constitution of the Reformed Dutch Church, every thing in relation to the conduct and continuance of the minister in service, is exclusively of ecclesiastical cognizance. The language of the call itself, which was adopted according to, and agrees in form with the 35th and 36th explanatory articles, is: “We, the minister, elders, &c., of the said church, do promise and oblige ourselves and *our successors, to pay you the sum, &c., as long as you con~ iinue our minister in the said church, and remain unmarried; and from and after the time of your marriage, we further promise and oblige ourselves and our successors, to pay you the additional sum of, &c., during the continuance of your ministry in the said charch. All persons concerned, placed the same construction upon the proceedings of suspension; that they were merely disciplinary, or probationary, f this was not so, why the subsequent application to dissolve the pastoral connection ?</p> <p>The resolution of the classis of Albany, of February, 1821, dissolving the pastoral connection, having been fes versed by the general synbd on the 14th of June, in the . „ i , v , ’ same year, the defendant Continued to be the minister of ^*6 Church, till the dissolution of the connection by the classis of Albany, on the 26th of Juné; 1821, These proceedings wefe conclusive bn both parties; on all concerned. They directly repognised the subsisting relation of minister and people up to the period of final dissolution. If not SO, Such a céremóñy would have been utterly idle and tin meaning. Nothing is better settled, than that the decree, ex direcio., of aü édclesiatieal, as well as á civil court, possessing competent jurisdiction, is conclusive evidence upon the Matters in question, whenever they are drawn into controversy collaterally before another court. (2 Esp. N. P. (Gould’s Ed.) 457. Bull. N. P. 244. 1 Day, 170. Swift’s Ev. 9. Meadows and others v. The Dutchess of Kingston, Ambl. 756.)</p> <p>Wé return, then, CbnfideUtly to the ground, that the performance of the pastoral duties Specified in the call, is not a condition precedent to entitle the defendant in error to his salary. We have already adverted to the express terms of the covenant. By this, We repeat, the salary Was, in so many Words, to be paid, as long as the defendant fti error continued minister in the Church. We say, again, that an Opposite construction would defeat the spirit and intention of the covenant, by requiring from á minister a purity of life above human nature; and subjecting him to a loss of Salary for any and every áot Of omission, *and for any and every departure from doctrine, morals or duty. lit the exercise bf CbmMon Sense, what is the inevitable literal meaning of this Covenant ? It is, that the salary is limited to, and Coextensive with the continuance of the pastoral relation. Sad this salary been expressed to be in consideration of the faithful performance of the duties of that relation, thed. We cbncede that performance Would have been a condition precedent, and the argument on the Other side Wbuld apply.' But here such a Construction is nbt only at war with the terms of the covenant, but With the Spirit Of the constitution, of the Reformed Dutch Church, to Which both parties have referred themselves. It is the . . „ „ , , „ , — . right of all churches, of whatever denomination, to pass such rules as they please for .their own government, if they be not inconsistent with the law of the land. If the church has done so in this instance, the common law rules of construction do not apply to the contract directly; but only through the regulations of the church. There cannot be a doubt that it was the intention of the national synod to rettain the whole power over this subject. They never meant that the right of salary should be drawn into question in a court of civil law, except so far as it depended upon the decisions of their own ecclesiastical judicatories. Follow out, for a moment, the doctrine of precedent performance on the other side, and look at its consequences. Suppose Mr. Bradford had doubted the doctrine of the Trinity; my friend on the other side would have deemed it a higher offence than getting tipsey now and then. Suppose he had denied the doctrine of the saint’s perseverance, or of infant baptism; would either have been a fit subject of temporal discussion, in an action for the salary ? Yet these are important fallings off in regard to faith. So in practice. Suppose he had withheld the baptism of infants; and suppose that he had been suspended for that omission the sentence of the proper church judicatory; in an action for the salary, we might be met with the objection now raised. You cannot thus refine away your minister’s salary by objecting, now want of faith, and now want of practice; nor any temporary suspension *for such cause. The whole duty and power to act must be first cut off. The connection must be entirely dissolved. Here is but a partial suspension. If it is to operate as a bar, shall it be a total one ? or, if partial, how is a jury to discriminate and proportion the compensation ? Is there any standard for this ? Would not the same difficulty arise in all matters of faith and practice ? If services be the consideration, then we ask, how is the minister to recover in case of sickness, voluntary or providential? If a servant be disabled to work for you, even by the act of God, you are not liable, at common law, to pay him for his time, during which, for that reason, he could not serve > s J i</p> <p>The rights and powers of churches to regulate their own concerns, has been recognized by an express decision of the supreme court. Jarvis v. Hatheway, (3 John. Rep. 180,) was an action of slander, for words uttered in the course of church discipline ; and held not to lie, for that reason. Spencer, J, in delivering the opinion of the court, said, “ Every sect of Christians are at liberty to adopt such proceedings for their regulations as they see fit, not inconsistent with law, or injurious to the rights of others.” We cite these remarks to show that the national synod had a right to withdraw and exempt all questions, properly ecclesiastical, from temporal cognizance. Take the case mentioned in the 16th explanatory article, of ministers permanently disabled, by mental or bodily infirmity, from performing their functions. The article provides, that they may, on application, &e., to the classis, be declared emeriti, the classis obliging the congregation first to stipulate for a reasonable annual support to their minister. This article evidently supposes that without such proceeding, the regular salary must continue. Is there a doubt that it would do so, unless the classis should interpose and dissolve the pastoral connection on the condition mentioned ? The 61st explanatory article provides fora case of neglect, as to the duty of catechetical exercises by the minister. If, after being urged by the elders, he ^neglects this branch of his ministerial functions for one whole year, he is to be reported to the classis. Is his salary to be suspended during this year of neglect ? So as to annual visitation. A neglect in this particular is made criminal by the 63d explanatory article. The 12th article of the synod of Dordrecht shows how strictly he is bound, and must be devoted to the service of his congregation. He is bound during life; and cannot devote himself to any secular calling, without the approbation of the classis on important reasons. The church thus restrains him from work. Do they also mean that he shall be without bread?</p> <p>I agree that we are bound by the meaning and good sense of covenants. In ordinary cases, the service is to be actually rendered before the price can be asked; but it will not be pretended but that the parties may make their contracts in other terms. This is what we contend for. We do this upon the authority of Cunningham v. Morrell, (10 John. 203,) and Thorp v. Thorp, (12 Mod. 455,) the latter, the very case relied on by the other side. We say the sense and spirit of the contract are opposed to condition precedent. In Thorp v. Thorp, lord Holt observed, that if, in that case, there had been “ a positive promise that one should release his equity of redemption, and on the other side, that the other should pay seven pounds, then the one might bring his action without any averment of performance.” Indeed, this case is in point for the defendant in error. Here is no promise in consideration of services; it is in consideration of Mr. Bradford’s continuing in the office of minister.</p> <p>But we are told that the minister does not covenant on his part; that there is a want of reciprocity between the parties ; and hence it is said, that without the construction contended for by the plaintiffs in error, they are without remedy in any shape. Admitting this view to be correct, that alone is strong evidence that the church intend to proceed in these cases, on the ecclesiastical side exclusively; that they do not mean to submit the conduct of their ministers to the temporal tribunals. The plaintiffs *in error had a prompt and summary remedy before the ecclesiastical judicatory.</p> <p>The fallacy of the argument, that there can be no inconvenience, in this instance, from considering the actual services a condition precedent, inasmuch as the want of performance arose from the fault of the minister, which resulted in his actual suspension, is, that it selects a particular instance of misconduct and suspension. It shuts out the broad ground of misconduct generally as a bar. Misconduct and suspension either bar the salary for the time, or they do not. You cannot distinguish one species of omission or commission, as doing so, more than another. The argument, therefore, is directly within the objections ^ i*ave urged. A jury is as well qualified to assess damages for a breach of contract by the minister, as any , , . . , , “ ’ , f body; but it was never intended that they or any body e^se sh°nld do SO in a Court of common law.</p> <p>If the construction contended for by the plaintiffs in error, be the correct one, performance must not only be proved, but it must, be averred by the pleadings. In Martin y. Hind, (Gowp. 437,) cited on the other side, one question at the trial was, whether the curate had a license; and a distinction was taken by Lord -Mansfield, that if the plaintiff had no license, he was removable at the pleasure of the defendant; otherwise, if he had a license. In the latter case, he was only removable' sub modo, as by the consent of the bishop, of where the rector does the duty himself. On the trial, he held that the defendant could not show irregularity of conduct; but that he ought, in that case, to have complained to the bishop, and obtained his sentence or judgment, or direction, in a formal, or at least in a summary way. In other words, the connection between the parties should have been dissolved by the proper ecclesias* tical tribunal, according to what we contend here. The First Religious Society of Whitestown v. Stone, (7 John. Rep, 112,) does not apply to the present case. The engagement there, was to pay so long as the said Rev. Mr. Snowden shall' administer the' gospel in said society, &c. This language, standing alone, and *not having reference to the rules or constitution of the church, giving a construction different from its natural import, was very properly treated by the court, as the ordinary common law contract for services, which are a condition precedent.' Neither the language itseli, nor the rules of the church, bring it up to the case before the .court,' In Dieffendorf v. The Trustees of the Reformed Calvinistio Church of Canajoharie, (20 John. 12,) there was ah offer in the court below to prove drunkenness, profanity, and other vices degrading to the character of a minister, as a defence to an action for the salary. This was overruled; and, oh error, the decision was sustained on the express ground, that the salary continued to accrue until the pasto -al connection should be formally dissolved by the ecclesiastical judicatories. This was a question which arose under the rules and constitution of the Be- „ . _ . . _ . . .. , . formed Butch Uhurch. in that case, the minister had once been deposed by the classis,. and various proceedings had taken place in the church judicatories. The sentence of deposition was finally reversed; and the court sustained an action for the salary, in terms ; on the broad ground, that the relation of minister and congregation was not dissolved.</p> <p>If we are correct in saying that suspension is not dissolution, that case is in point for the defendant in error.</p> <p>In concluding the discussion of this cause, I propose to examine as well the reasons of the supreme court, as the argument of my learned friend, who is opposed to me.</p> <p>The supreme court say, that according to the nature and terms of the contract in question, the plaintiffs in error were bound to pay the stipulated salary, until the connection between the parties was dissolved by ecclesiastical authority; which was neither done or intended to be done by the sentence of suspension pronounced against Mr. Bradford ; and the -same position has been reiterated by the learned counsel.</p> <p>But the correctness of this position rests upon a gratuitous assumption of facts, which the plaintiffs in error wholly *Jeny. -For they contend, that the faithful service of Mr. Bradford as pastor, was the consideration and condition ■of their-stipulation to pay him, and .that when the consideration failed by means of his own gross behavior, the condition was broken; and Ms right to payment ceased agreeably to the letter, spirit, and true intent of the contract. He was called as an efficient minister, capable of performing all the various duties appertaining to the important office of a gospel minister; and by accepting the call, he assumed to perform them. What was his situation when suspended from the ministry ? He was rendered incapable of performing any of those duties. Thus circumstanced, in what condition were the plaintiffs in error, during his suspension ? They were again destitute of the state<^ Pining of the word, and the regular administra* tion of the ordinances, their call of Mr. Bradford, and his • . , ’ . _ , . . ’ acceptance, notwithstanding. Was this occasioned by any default on their part ? Ho; it was produced by his wilful violation of his double obligations as a minister of the gospel, and their pastor. What is the just and legal consequence ? That, by wilfully breaking the condition of the call, he forfeited all right to the salary which it stipulated should be paid to him.</p> <p>Admit, for argument’s sake, that the sentence of suspension was not a formal dissolution of the contracted relation of pastorand people between the parties; I ask, did it not suspend the exercise of all pastoral functions by Mr. Bradford ? And if it did, could he, during their suspension, lawfully demand the stipulated compensation for pastoral service ? Surely not. For how could he demand it as a continuing gospel minister, after being suspended from the ministry ? It would be strange indeed, if suspension from an office did not suspend the right to demand the salary, which was promised for performing the duties of the office. I therefore contend, that Mr. Bradford’s Suspension from the ministry produced, by operation of law, a simultaneous suspension of his right to salary. This is conformable to the dictates of justice, and the manifest intent of his call; and if so, the judgment of the supreme *court must be reversed on that ground. But I go one step farther, and insist, in judgment of law, his suspension from office, and consequent disability to perform the stipulated service, was a virtual dissolution of the contract between him and the plaintiffs in error, at their election; because the contract, on his part, though personal, was at the same time wholly official, and ceased, of course, the moment he was divested of his official standing. He then ceased to be what he was when called. Instead of confiding in his piety and usefulness, the plaintiffs in error were constrained to regard him as a man who had brought reproach upon religion, by dishonoring the sacred office of a gospel minister. After such a change in his situation and standing, he general interests of religion, as well as the welfare of the conereeration with which he had been connected, ie- . , 7 , , , , ’ . quired that they should have an election as to the continnance of that connection: for the constitution and rules of their church declare that a pastor and teacher must be an example to believers; inasmuch as his usefulness depends much upon his holy walk and conversation. (Expl. Art. 71.)</p> <p>Again; when a minister of the Dutch Church is suspended from office for misconduct, by the classis, he may appeal to the particular synod, and thence to the general synod; and if he prevails on appeal, he is exonerated from guilt, and considered in good standing. What follows ? He is entitled to salary during his suspension. Why? Because he is acquitted of the offence for which he was suspended. But when his suspension is confirmed, on appeal, what is his condition ? His guilt is finally established, and his suspension justified. What follows? Unless established, guilt and confirmed suspension from office produce the same result in relation to his salary as an honorable acquittal; it would seem that his suspension from office necessarily suspended his right to salary during its continuance.</p> <p>It is true, that the ecclesiastical judicatory, who pronounced the sentence of suspension against Mr. Bradford, *did nothing more in the first instance; but it does not follow thence, that the sentence was not conclusive in law upon his right to salary, at least during his suspension. That question the ecclesiastical judicatory left open to be decided by a court of law, where it properly belongs, and is now presented to this court upon the pecuniary part of the contract between the parties, the enforcement of which did not fall within the range of ecclesiastical jurisdiction. This Mr. Bradford has conceded by resorting for redress to a court of law, where contracts are to be expounded agreeably to established legal rules; so as to give them a rational effect, according to their true intent.</p> <p>But it has been said that the plaintiffs in error, subsequent to the suspension of Mr. Bradford, applied to the classis for a dissolution of their pastoral connection with him, and that it was, thereupon, dissolved; but the disso lution was afterwards reversed by the general synod; and hence it is inferred that the plaintiffs in error, as well as the ecclesiastical judicatories, have recognized the connection .as subsisting after his suspension. In the first place, I deny that the application was made subsequent to his suspension; but admitting, for argument’s sake, all the facts to be as stated, yet I dispute the conclusion drawn from them. And first I ask, how could the relation of pastor and people subsist, when the pastor was suspended from office ? It surely was not such a relation as was contemplated and formed by the call to Mr. Bradford, and his acceptance of it; for what spiritual blessings could he dispense to the congregation as pastor and teacher, after ■ he was suspended from his pastoral office ? Hone. Then is it not preposterous to talk of a subsisting pastoral relation for the purposes of the call, when the pastor was suspended from his pastoral office ? And if it did not subsist for those purposes, to what purpose could it subsist in judgment of law ? To entitle a faithless minister to an unmerited salary ? The only object of the application alluded to, was to remove every pretence of difficulty in the way of the plaintiffs in error, of calling another minister; *and with the same view, the ecclesiastical judicatories considered it expedient to give the application their reiterated sanction. ¡</p> <p>But what was the basis of the application ? and why was it complied with.? Expressly because Mr. Bradford stood convicted of repeated intoxication; and was suspended from the office of the ministry. Is it asked, why ¡then did the general synod reverse the first dissolution by the ciaseis? Because they judged the power of the .classis over the subject, was suspended pending Mr. Bradford’s appeal from his conviction, and the sentence of suspension which had been pronounced against him. This -is manifest frpm the fact, that the synod accompanied their sentence of affirmance of both, by a resolution recommending to. the classís the immediate -renewal -of the dissolution. Hence it -also -appears, that the general synod considered it a' matter of right in the plaintiffs in error, to be formally absolved from the connection which had subsisted between them and Mr, Bradford, by reason of his conviction and suspension.</p> <p>_ _ Again; it has been urged that the doctrine and practice of a minister are subjects of ecclesiastical cognizance; but, if the performance of pastoral duties is a condition precedent, to entitle Mm to recover his salary, such performance must be proved ; and then all matters of doctrine and practice would be examinable at law, before a court and jury.</p> <p>The answer to this argument is at once simple and decisive. While a minister continues to perform the duties of his call, courts of law will not scrutinize his official conduct in a suit for salary; but consider him to be in good standing, until an ecclesiastical judicatory of competent authority determines otherwise: and in this way all manner of jurisdictional collision with the ecclesiastical government, is avoided by the courts of law, without yielding their own legitimate jurisdiction. But when, as in this case, the ecclesiastical power has been duly exercised, to the conviction of a minister of a gross sin, and pronouncing a sentence of suspension from office against him, and he then sues for salary, what question of doctrine or ^practice can arise to be examined at law ? The ecclesiastical sentence of suspension is conclusive upon the point of non-performance, and nothing remains to be done at law, but to pronounce the judgment of law upon the suitor’s case. And this accords fully with the doctrine contained in the case of Dieffendorf v. The Reformed Calvinistic Church of Canajoharie. But, for the purpose of testing the soundness of my learned friend’s argument, by an analogous case, let me suppose a counsellor of the supreme court to have contracted with a client to do all bis law business for five years at a stipulated' yearly salary, and that within six months after the contract, the counsellor was suspended for mal-practice, and continued suspended for a year; would a court of law entertain a suit brought by him to recover the stipulated salary during his suspension ? I apprehend not; and if go I ask what sound distinction can be made between such a case and the present r</p> <p>, . , . . . . , Again; let me suppose a minister of violent temper, convicted of an aggravated breach of the peace, and sentenced to imprisonment for it, to commence a suit for salary during his imprisonment: would a court of law find any difficulty in such a .case, of sustaining a defence set up against him, founded upon such conviction and imprisonment, when verified by the record ? Surely not. Why ? Because the record would be conclusive upon the fact of non-performance, without any ecclesiastical adjudication.</p> <p>But it has been insisted, that the sentence of suspension against Mr. Bradford was disciplinary merely; and it would therefore be unreasonable, as well as unchristian, that he should be exposed to starvation while under the operation of church discipline. Admit the sentence was disciplinary; I ask, did it not operate also as an ecclesiastical punishment for guilt ? And are not all punishments, not capital, strictly disciplinary ? By what law are the plaintiffs in error punishable for the guilt of their minister, or compellable to support him, when duly interdicted to exercise the office of a minister, by reason of his own misbehavior ? Do the terms of their call impose such an obligation *upon them? Surely not. Suppose a hired servant, with a numerous family, should be convicted of felony, and sent to the state prison ; would it be pretended that his employer was bound to pay the wages promised for his service, to save his family from starvation, while he was undergoing the discipline of the law? Would a compulsory provision for that purpose conduce to quicken the reformation of offenders, which is the great object of such discipline ; I apprehend not; for if the word of Gtod, the duty of self-respect and the obligations of husband and father, are insufficient to restrain a man from yielding to evil propensities, there is great reason to fear that a provision of that kind would not strengthen their influence over him; At all events, the result of such an experiment is too problematical, to have it introduced by a court of justice, and at the expense of an already deeply injured congregation, against their will, and against the letter, spirit, and true intent of their contract. »</p> <p>_ , , , , . It has also been suggested, that the provision in the constitution and rules of the Dutch Church, in favor of ministers who, by reason of old age, ill health, or any kind of bodily infirmities, are rendered incapable of performing pastoral duties, (Expl. Art. 16,) shows that the performance of those duties is not indispensable, in the view of the church, to entitle a minister to his promised salary. What is the provision alluded to ? That when a minister becomes unable, from any of the above mentioned causes, to fulfill the active duties of his office, the proper judicatory of the church may declare him emeritus, and exonerate him from those duties. What more ? That he shall, notwithstanding, retain his rank and standing, and be suitably provided for by the congregation in whose service he became disabled. Is such a case analogous to the present? Is there no distinction between a minister who is worn out, or become disabled in the faithful service of his master, and one who, by reason of gross and sinful habits, is suspended from the sacred office of the ministry ? Does not the above provision distinguish plainly and correctly between the two caaes? May, more, does not the limitation *in the provision prove conclusively, that the church did not mean to dishonor religion, by providing for a man who, by violating the obligations, forfeits the rights and privileges of a gospel minister?</p> <p>Again ; we have been told that ministers may not engage in secular employments for support, and that they are subject to the infirmities of corrupt human nature in common with other men, and therefore ought not to lose their support, when they fall into temptation. Let me consider, for a moment, the cogency of this reasoning. The constitution and rules of the church require, that ministers shall be examples to believers; and declare that their usefulness depends much upon their holy walk and conversation, (Expl. Art. 71,) and therefore their crimes must be punished with impartiality and severity. But the supreme court and my learned friend say, inasmuch as ministers are but fra¡i men, they must not be left to suffer the pen alty of ecclesiastical discipline for their guilt, without the comfort of a liberal support from their abused congregations, This seems to me to savor more of exuberant char ity than of sound legal deduction. The former may challenge our admiration of the sympathetic feeling which it displays; but the latter only will insure confidence in judicial decisions; because it guides to the impartial administration of justice. Besides ; genuine charity flows- spontaneously from a benevolent heart, and the enforcement of it by legal coercion, for that reason, is an anomaly in the law. When I have the honor to address this honorable court, as the highest legal tribunal in this state, I am bound to regard it as the highest legal dispenser of justice. The question which my clients present for its decision is not a question of charity, but a pure question of law; and they therefore feel the utmost confidence, that here justice will soar above the deceptive influence of an effervescent charity.</p> <p>The only remaining argument of my learned friend, which demands my notice, is, that the plaintiffs in error might have had adequate relief in the ecclesiastical judicatories. *1 ask how? It is said the classis might have formally dissolved their connection with Mr. Bradford. But I answer, they did not do it in the first instance. How, then, could the plaintiffs in error be relieved from paying the salary promised to Mr. Bradford for the stated preaching of the word, and the regular administration of the ordinances, after he was suspended from office, if his suspension is no bar ta its recovery at law ? Did it afford them any relief, that the classis did not do all they might have done? Were they not deprived of the stipulated consideration for the promised salary, by reason of Mr. Bradford's own default ? And they shall be told by a court of justice, that although the consideration of their promise has failed, they remain bound by it, until an ecclesiastical judicatory absolves them ? Is that necessary to maintain the jurisdiction of the ecclesiastical judicatories, over the doctrine and practice of ministers ? And is not the question of their continued liability purely of legal cognizance, when payment is attempted to be enforced in a cóurt Of Mw, by a Suspended minister?</p> <p>It is true, that the classis might have accompanied their sentence of suspension with a formal sentence of dissolution, though, for reasons not disclosed, they delayed the latter until after an appeal to á higher judicatory; and this, the general synod considered, superseded the power of the classis during its pendency, and for that reason aloné reversed the sentence of dissolution ; but simultaneously recognized its justice and propriety, by recommending to the classis its prompt renewal. Pending these proceedings several months elapsed; Mr. Bradford continued suspended from the gospel ministry, and consequently incapable of performing any pastoral duties. Does not this plain statement of facts exemplify, in a notable manner, the adequacy of the ecclesiastical remedy to the plaintiffs, in error? How was the loss of spiritual blessings, which Mr. Bradford has assumed to dispense to their congregation as a gospel minister, supplied ? And if not supplied, I beg leave to repeat the interrogatory, is it reasonable, or is it hohest, that he should recover in this ^action ? Or does the omission of the classis to sever formally his pastoral connection with the church, when he was suspended from the pastoral office, divest this court of its power to protect the just rights of my clients, and to give effect tó the pecuniary part of their contract, according to its true sense and meaning, and the established principles of law?</p>

On error from the supreme court. The action hi th§ court below was ejectment by Jackson, on the demise of Field, against'Sinclair, for lot 320 of the lands called the' . Held: as may be seen by a variety of cases, cited in Sugd. on Powers, 583, ed. before cited, id. 485, 6, and 594, and this especially; where there was no lease in esse at the time of executing the power. Again ; take both leases together, and they .exceed the term for which the powers authorized a lease.

Ok error from the supreme court. The action below was ejectment for lot No. 72, in Dean’s patent, Chazy, Cliptpn county; tried at the circuit in that county, June 24th, 1822, before Yates, (late) justice of the supreme court; when a special verdict was found; stating, that on the 11th of July, 1769, letters patent were granted to Dean, Boyd and others, for 4,618 acres, including the premises in question ; that in 1798, a field book and map of thp patent were made; and, on…

On error from the supreme court. The cause was originally commenced in the court of common pleas of the county of Columbia, by the present plaintiffs in error, on a bond of indemnity against the maintenance of a bastard. *It was tried in the common pleas, where a verdict and judgment were rendered for the plaintiffs. Thence the cause went to the supreme court on writ of error, upon a bill of exceptions taken at the trial, where the judgment of the common pleas was reversed.

On error from the supreme court. The action below was assumpsit by the plaintiffs, J. and T. Povíell, as second indorsees, against the defendant, as first indorser of a promissory note. Held: that as it came here on special verdict, that must be looked to, and compared with the record as a guide;' and the foundation of the action being thus seen to fail, the judgment could not be supported. In the principal case, usury was the very point on the trial.

On error from the supreme court. The plaintiffs in error brought an action in the supreme court against the defendant in error, as the indorser of a promissory note for $800, dated June 26,1818, made by. James M’bTamee, payable to F. Stranahan, or .order, sixty days after date, at the office of the Utica Insurance' Company, and indorsed by Stranahan to the defendant, who indorsed the same to the plaintiffs.

On error from the supreme court. The cause came here on a bill of exceptions, containing the same facts stated in' the report of .the same case in the court below. (Pendleton y. Dyett, 4 Cowen, 581.) The main facts will also be found stated in the opinions of Grary, Golden and Allen, Senators. The reasons of the supreme court were now assigned, substantially as in that report, p. 583 to 587. The causé was argued here by

On error from the supreme court, Clapp brought error to this court, from a judgment in partition.

This cause was tried on the 14th of July, 1823, before Walworth, (then) 0. Judge; and a verdict rendered for the plaintiff below, subject to the opinion of the supreme court, on a dase to be made, with liberty to either party to change it into a special verdict or bill of exceptions. The case was heard at bar, and judgment rendered for the plain* tiff.

<p>This cause was now moved again, upon the question stated and partially discussed, {ante, 707, S. 0.) whether the plaintiffs in error should have leave to withdraw their assignment of errors, with a view to bring up the question upon the competency of Smith, the witness, by a bill of exceptions, the court having refused to decide it upon the special verdict.</p>