Volume 8 — Wendell's New York Reports

Error from the supreme court. This was an action of ejectment for the recovery of a house and lot in the city of New-York, known as No. 11, Cherry street. The lessors of the plaintiff claimed to recover under a conveyance from Maria Osgood, to her daughter Martha Brandon Osgood, bearing date the 31st May, 1814, executed in consideration of natural love and affection.

Error from the supreme court. The trustees of the village of Brooklyn laid out a street, and appropriated to that object certain lands belonging to one Jacob Patchen. The proceedings of the trustees were consummated in the court of common pleas of the county of Kings, who rendered judgment in favor of Patchen for the amount at which his damages had been assessed by a jury.

Error from the supreme court. The corporation of the city of New-York, in the opening of two streets called Attorney and Ridge streets, took two parcels of land, the fee of which belonged to John R. Livingston, which the commissioners of estimate and assessment reported to be subject to the easement of a right of way over the same, in the parties entitled to lands and premises bounded by and fronting on the streets.

Error from the supreme court. Reab sued McAlister in the common pleas of Washington county in an action of assumpsit. The declaration contained counts for goods sold and delivered generally, for a cooking stove and stove pipe sold and delivered, and a special count for a cooking stove sold the defendant at the price of $45, to be paid for in six months after delivery, which the plaintiff warranted to draw and carry ' smoke well.

Error from the supreme court. Tubbs, as endorser, sued Caswell and Pettit as the makers of a promissory note. The defendants pleaded that the promise and undertaking in the declaration mentioned was made by them and one P. S. Sennott jointly, and not by them solely, and that after the making °f the promise, and before the commencement of the suit, to W^’ on’ hy an instrument under seal, released Sennott from the promise and undertaking, and from all demands whatsoever.

Error from the supreme court. Wrigley obtained a discharge from the recorder of New-York, as an insolvent debtor under the act to abolish imprisonment for debt in certain cases. At the time of presenting his petition, an affidavit was exhibited to the recorder that Wrigley was an inhabitant, actually residing within the city and county of New-York.

Error from the supreme court. Turner sued Burrows, to. recover one sixth of the amount of monies received by the latter, under a policy of insurance on a brig, in which the parties were jointly interested, the plaintiff owning one sixth, and the defendant five sixths of the vessel. The declaration contained the common money counts.

Ejrkoe from the supreme court. This was an action on a policy of insurance upon merchandize shipped at New-York for Batavia, and other ports in the island of Java, upon the goods out and upon the… Held: the return cargo thus procured was the proceeds of the cotton, within the meaning of the policy.

Error from the supreme court. On the 2d March, 1821, an agreement was entered into between Bolles on the one part, and Benson & Felthousen on the other, whereby Bolles demised to Benson & Felthousen, from the first day of May, then next, a store house and a building attached thereto, in the city of Schenectaday, at a rent of $100 per year; Benson & Felthousen to alter and repair the buildings to the amount of $50, as should be specified in a separate article, and to occupy…

Error from the supreme court. This was an action of ejectment brought by the attorney-general in the name of the people, to recover 21 acres ofland in the county of Warren. The proof of title on the part of the-plaintiffs was, that 30 years before the trial the premises were vacant and unoccupied lands; that 2 years afterwards, one Ruel went into possession of the land under a pretended contract and made a clearing to whose possession the defendant succeeded.

Error, from the supreme court. Warner was sued as the endorser of a promissory note, of which one Hildreth was maker, and Elmendorf the payee, which was transferred after due to the plaintiff.

Error from the supreme court. The plaintiff in error and two others were tried on an indictment, in which they were charged with neglect in not keeping a turnpike road in repair they being directors of an incorporated company to which the road belonged, and the act of incorporation declaring every such neglect a misdemeanor. Kane alone was convicted at the oyer and terminer in Oneida, and sentenced to pay a fine of #200.

Whittick, in 1821, filed a bill in chancery, charging that a deed executed by his grand-father, John Whittick, to Cornelius Yan Schelluyne, bearing date in J anuary, 1772, conveying three lots of… Held: that parol evidence is admissible to shew that a deed, absolute in terms, was intended by the parties as a mortgage or security for the payment of money, and from the testimony, was satisfied that the deed from Whittick to Schelluyne was intended as a mortgage.

On the eleventh day of September, ,1828, Furniss, one of the appellants, bought of the respondents, who are auctioneers in the city of New- York, goods at auction t0 t^e amount 0f $235,40, and on the sixteenth of the same month purchased another parcel, amounting to $242,06. The g°°ds were delivered to Furniss, with bills of sale accompanying the same; the second bill specifying that the goods were sold at a credit of six months.

Pierce Teller and Elizabeth his wife filed their bill in chancery against Peter McCartee, for an account of monies received by him as the agent or receiver of Mrs. Teller, of the dower or thirds… Held: that the marriage settlement was not validf because in it there was no covenant which would enable the court to compel the heirs to make such provision as the statute relative to jointures requires.

On the 1st November, 1827, three several judgments were rendered in a justice’s court in favor of the respondents, on attachments issued against the property of one J ohn Green, one of which was for $33,73, the second for $19,97, and the third for $51,81.

The appellant filed a bill for a limited divorce and alimony, before the vice chancellor of the first circuit, in January, 1831. The bill was filed in her own name, and not by prochein ami, and alleged cruelty and inhuman treatment on the part of the husband, the respondent in this case.

This was an action of replevin for a sloop, tried at the Green circuit, in October, 1829, before the Hon, William A. Duee then one of the circuit judges.

<p>This was an action of trespass de bonis asportatis, tried at the Onondaga circuit, in September, 1828, before the Hon. Enos T. Throop, then one of the circuit judges..</p> <p>Property of the plaintiffs was sold by a constable, under executions against them, issued by Thompson, as a justice of the peace, in favor of Huntley. In justification, the defendants produced a certificate given by Thompson, certifying that in November, 1826, he, as a justice of the peace of Onondaga, rendered two judgments in favor of Huntley against the plaintiffs, and that on such judgments he issued the executions under which the sale was had; to which certificate was attached a certificate of the clerk of the county of Onondaga, under the seal of the county, certifying that at the date of the judgments Thompson, whose signature was affixed to the certificate, was a justice of the peace of that county. Thompson’s office as a justice expired on the last day of December, 1827, and his certificate produced on the trial bore date 2d February, 1828. The plaintiffs objected to its admission as evidence, on the grounds that a party could not thus furnish evidence for himself, and if that was allowable, that he could not make such certificate after the expiration of his office. The judge sustained the objection. The defendants then offered to prove by a witness present at the rendition of the judgments, that the judgments in question were rendered by Thompson; this evidence was objected to, for that it appeared that Thompson kept a docket of judgments rendered by him, and that secondary evidence was inadmissible, until the non-production of the docket was accounted for. This objection was also sustained. The jury, under the charge of the judge, found a. verdict for the plaintiffs-for SI95,45. The defendants moved for a new trial.</p>

This was an information, in the nature of a quo warranto, filed by the attorney-general, on the relation of A. Swan and three other persons, claiming to have been elected constables of the town of Verona, in the county of Oneida, on the .first Tuesday of March, 1830, for the year then ensuing.

Error from the superior court of the city of New-York. On the 23d February, 1804, a contract was entered into between the parties, by which Stagg agreed to level a tract of land belonging to the defendants, adjoining Broadway in the city of New-York, according to certain ordinances and regulations of the corporation of the city, by digging down certain parts thereof and filling up the residue; the work to be done within 18 months.

This was an action of debt, tried at Albany circuit in February, 1830, before the Hon. James Vanderpoel, one of the circuit judges. The suit was on a bond, conditioned for the faithful dis. charge by Van Slych of the duties of the office of collector oj tolls at Rochester ; i. e. to pay over all monies which might be received by him as collector, and well and truly in all things to execute the office of collector, &c. The others defendants were the sureties of Van Slyck.

<p>This was an action of assumpsit, tried at the Herkimer circuit in March, 1830, before the Hon. Nathan Williams, one of the circuit judges.</p> <p>The defendants were sought to be charged af the makers of a promissory note for $350, bearing date 13th July, 1827, payable to L. Rogers or bearer, twelve months after date, to which the partnership name of “ Sprague, Dann & McKenster ” was subscribed. The action was by the plaintiff as the bearer of the note. The plaintiff proved that in the spring of 1827, and at a short period previous to the date of the note, the defendants were partners in trade, doing business under the partnership name of Sprague, Dann McKenster, and that the parternship name subscribed to the note was in the handwriting of Sprague, one of the firm. The defendants objected to the sufficiency of the evidence, insisting that the plaintiff was bound to shew that the firm existed at the date ofthe note, but the judge considering the evidence prima facie sufficient, overruled the objection. The defendants then proved a dissolution of the firm on the 12th July, (the day preceding the date" of the note) but it appeared that notice of such dissolution was not published in a newspaper or in any other public manner; the defendants, however, proved that the note in question was transferred by the payee to the plaintiff under these circumstances : the payee was indebted to the plaintiff to the full amount of the note, which was delivered to the plaintiff under the agreement, that if he succeeded in obtaining judgment against the defendants, and in collecting the amount thereof, the whole should belong to him ; but if he failed in collecting the money, Rogers should pay him a part of the money which he owed him ; how much he was to pay did not appear. After adducing this evidence, the defendants offered to prove that Rogers, at the the time of the taking of the note, knew of the dissolution, which evidence -was objected to and rejected. The defendant, Dann, the only member of the firm who defended the suit, then desired the judge to instruct the jury that if he, Dann, was not liable to the paymenec of the note, they should find that he was not in fault in not publishing the dissolution in a newspaper or some other public manner, by reason of the note having been made so soon after the dissolution; the judge refused so to charge, and the jury, under his direction, found a verdict for the plaintiff, and the defendants moved a new trial.</p>

This was an action of ejectment, tried at the Schenectady circuit in September, 1827, before the Hon. William A. Duer, then one of the circuit judges. On the trial the following documentary testimony was exhibited : 1. Letters patent of the Schenectady patent, granted 17th November, 1684, unto Byert Schermerhorn, and four others, in behalf of the inhabitants of the town of Schenectady» their associates, heirs, sucessors and assigns ; 2.

This was an action of assumpsit, tried at the Seneca circuit in J une, 1830, before the Hon, Daniel Moseley, one of the circuit judges. The action was for the breach of a contract, in not delivering 100,000 shingles at a landing place on the Seneca Lake, called Bailey-town, on the 1st June, 1828, for which the plaintiff had engaged to pay $125, or $1,25 per thousand.

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

This was an action of ejectment, tried at the Cortland circuit in January, 1830, before the Hon. Samuel Nelson, then one of the circuit judges. The suit was brought for the recovery of the possession of the survey fifty acres in lot No. 21, Virgil. Letters patent for the entire lot to J. Gee, one of the lessors of the plaintiff, were produced, bearing date 8th July, 1790.

This was an action of trover, tried at the Monroe circuit, in the March, 1830, before the Hon. Addison Gardiner, one of the circuit judges. The plaintiff claimed to recover the value of the moiety of 451 bushels of wheat reaped by the defendant in the harvest of 1825, on certain lots of land, a moiety of which where conveyed to the plaintiff in September, 1824, after the wheat was sown.

This was an action of trover, tried, at the Monroe circuit in March, 1830, before the Hon. Addison Gardiner, one of the circuit judges. The plaintiff claimed to recover the value of a quantity of brick alleged to have been levied upon by him as a constable, by virtue of two justices’ executions, one against V. H. Freeman, and the other against Freeman and W. B. Guernsey.

Error from the New York common pleas. Juhel brought replevin against Bloomer for the taking of certain goods and chattels. Bloomer avowed the taking as a distress for a quarter of a year’s rent due on the 1st February, 1829, on certain premises in the city of New-York, demised by him to one H. S. Spendlove, on the 1st August, 1828, from that day until the 1st May 1829, at a rent of $375, payable quarterly, on the first days of November, February and May.

This was an action of debt tried at the Otsego circuit in September, 1829, before the Hon. Samuel Nelson, then one of the circuit judges.

This was an action of ejectment, tried at the Orange circuit in September, 1830, before the Hon. James Emott, then one of the circuit judges. The action was brought for the recovery of lands assigned to the plaintiff as dower, by admeasures.

<p>Delaware common pleas. Tompkins sued Sands in a justice’s court for refusing to accept an appeal bond in a suit in which Elliot had obtained a judgment against Tompkins, before Sands as a justice of the peace. The plain- tiff declared in writing, in a special action on the case, setting forth the commencement of the suit by Elliot against Tomp- kins, before Sands as a justice of the peace, and the rendering of a judgment therein against Tompkins for $50 and costs ; that within ten days thereafter, Tompkins tendered to Sands a bond, duly executed with sufficient surety, which Sands re- fused to received ; that one Solomon Tuttel signed and sealed the bond as surety, offered to swear before Sands that he was worth double the penalty mentioned in the bond, and offered himself as surety for Tompkins on the appeal; but that Sands refused to receive the bond, and to take Tuttel as surety and thereby prevented Tompkins from appealing the cause and reversing the judgment. The declaration also charged generally that Sands, acting as a justice of the peace, had unjustly and oppressively prevented Tompkins from ALBANY, Jan. 1832. appealing and reversing a certain judgment, unjustly obtained before and rendered by him, which judgment could on appeal have been reversed or greatly reduced. Sands pleaded the general issue and justified. Tompkins obtained a verdict for $ 50, on which judgment was rendered with costs. Sands appealed to the Delaware common pleas. On the trial in that court, Sands admitted the judgment rendered by him in favor of Elliot against Tompkins, and the following facts were adduced in evidence: An appeal bond, in due form, was executed by Tompkins, and by Tuttel as his surety, and on the last day for appealing, the bond, together with the costs and noticé of appeal, were tendered to Sands, who refused to receive the same. Tuttel offered to swear that he was a freeholder, and worth double the amount of the penalty of the bond, to which offer Sands replied that he would not take his oath. When the papers were tendered to Sands, he and Elliot whispered together; Sands said that Elliot told him Tuttel was not good (as surety) and he, Sands, did not think him good. When Tuttle offered to justify as surety, Sands was angry and said he would not take him nor his oath; Tuttle told him his conduct was oppressive, to which he answered that he would take the responsibility on his own shoulders. When Sands refused to accept Tuttel as surety, another witness asked him whom he would take for bail; Sands named a Mr. Leet and four other persons. The witness told him he had named those whom he knew Tompkins could not get; there was not time. Sands said if they would come next day or Monday, he would take them. .This witness testified that Tompkin’s circumstances were such that it was difficult for him to get bail; that at his request he spoke to Leet on the subject, and when Sands was informed of his having done so, he appeared to be angry with the witness, and told him he had taken an active part for Tompkins. On the trial in the common pleas, Tuttel testified that when the bond was tendered, he was a freeholder and worth more than double the penalty of the bond. The defendant moved for a nonsuit, insisting that the refusing bail on appeal'was a judicial and not a ministerial act; and the court decided that the defendant was not liable to an action for refusing bail on appeal, even though he acted maliciously and directed a nonsuit, upon which judgment was accordingly entered for the defendant. The plaintiff sued out a writ of error.</p> <p>The acceptance of the appeal bond is a ministerial and not a judicial act; it is as much a ministerial act as is the issuing of process, 7 Cowen, 314, 6 Wendell, 597, and a. justice who refuses such bond when tender ed to him, is equally liable with a sheriff who refuses a bail bond. 2 Saund. 59. 1 Dunlap. 155. 15 East, 320. 2 Mod. 31. 7 Johns. R. 138. The allowance of a habeas corpus in vacation is a ministerial act, and the officer refusing its allowance is liable to an action. Yates v. Lansing,5 Johns.R. 282. But if the acceptance of the appeal bond be considered a judicial act, the defendant is responsible, if he acted maliciously in refusing to accept, 2 Esp. R. 245; 2 Ld. Raym. 948 ; 1 East, 563; the plaintiff had given evidence shewing malice, and the question should have been submitted to the jury.</p> <p>The justice, before whom the suit of Tompkins against Sands was prosecuted,, had no jurisdiction of the subject matter of that suit. In Main v. Prosser, 1 Johns. Cas. 130, which was an action for a malicious prosecution prosecuted in a justice’s court, the court decided, that though justices of the peace had jurisdiction of all actions of trespass on the case, an exception should be implied of the action of malicious prosecution from the nature and reason of the thing ; they observe, that “ the principles of the action for a malicious prosecution involve delicate and important questions, affecting the administration of public justice, as well as the rights of individuals; the action must frequently relate to proceedings in another court, and would require the justice incidently to review the conduct of superior tribunals. The exercise of such a power would be inconvenient,” &c. See , also 12 Johns. R. 466. So, too, in Wells v. Newkirk, 1 Johns. Cas. 228, it was held that an exception must be implied as to actions by and against executors, &c. which decision was confirmed in 1 Caines, 191, and 3 id. 129 and in Crawford v. Reid, 1 Caines, 594, the court decided that the act in relation to joint debtors, where all were not taken on the process, did not apply to justices’ courts. The appeal having come in the place of a certiorari, the common pleas ought for this cause to have reversed the judgment of the justice; and although they may have erred in nonsuiting the plaintiff for the reasons assigned, their judgment must be affirmed.*</p> <p>The defendant was liable only in case he acted corruptly) and corruption or malice is not alleged in the declaration. 11 Johns. R. 114. 1 East, 563, a. But he acted judicially, and therefore is irresponsible ; the approval of the surety is a judicial act, although the endorsement of the approval may be ministerial. Jacobs’ Law Dict. tit. Justices of the Peace. 8 Johns. 50. 12 id. 356. 8 Co wen, 178.</p> <p>The act of the justice was ministerial ; after judgment, he has no judicial duty to perform; all acts remaining to be performed by him are ministerial. He is bound to make a return on receiving notice of an appeal; this also is a ministerial act, and if he makes a false return, who would doubt his liability ? what objection can there be to holding him responsible in a justice’s court ? For the mere misfeasance or nonfeasance of a ministerial act, the cause may as well be tried in a justice’s court as in any other. As to the objection to the declaration, the proceedings in justice’s courts, as far as respects regularity and form, are reviewed with great liberality; technical nicety or legal precision in the pleadings is not required. The justice is charged with having unjustly and oppressively prevented the plaintiff from appealing ; these words are equivalent to a charge of corruption and malice.</p>

This was an action of trespass, tried at the Herkimer circuit in March, 1830, to recover damages sustained by the plaintiff in consequence of the defendant running a boat which he was navigating on the Erie canal against the boat of the plaintiff, by means of which the side of the plaintiff’s boat was broken in and merchandise on board was wet and injured.

This was an action of trespass, tried at the Essex circuit, in June, 1830, before the Hon. Esek Cowen, one of the circuit judges. The action was for the taking of two piles of plank, from Cedar-point, on Lake Champlain. One Clapp, being indebted to the defendant, gave him an order for 3000 plank which he had at Cedar-point.

Error from the Washington common pleas. Austin sued Morse in an action of trespass quare clausum fregit, stating the close to be situate in the town of Easton, without naming the close, or specifying abuttals. The defendant pleaded liberum tenementum, and the plaintiff replied, taking issue upon the plea. The cause was brought to trial, and the principal question between the parties was the ascertainment of a boundary line.

i This was an action of assumpsit, tried at the Albany circuit in February, 1830, before the Hon. James Vanderpoel, one of the circuit judges.

This was an action of assumpsit, tried at the Niagara circuit in April, 1830, before the Hon. Addison Gardner, one of the circuit judges. The declaration contained the common mopey counts, and the plea was the general issue.

Motion in arrest. The plaintiff obtained a verdict in an action of slander.

Error from Yates common pleas. The action in the court below was on a promissory note, payable to one W. Roy or bearer, transferred to the plaintiff. The making and transfer of the note were duly proved. The defendant offered to prove admissions made by Roy whilst the holder of the note, and previous to the transfer, shewing that the defendant was not liable to the payment of the note.

Error from Monroe common pleas. Carver sued Guernsey in a justice’s court, and declared against him on a book account, consisting of 7 items of merchandise, delivered between the 20th July and the 27th August, 1828, amounting^ together, to the sum of $2,35.

This was an action of assumpsit, tried at the Monroe circuit, in September, 1830, before the Hon. Addison Gardiner, one of the circuit judges. In the spring or summer of 1826, a mercantile firm transacting business at Watertown, in the county of Jefferson, under the name oí Fry & Murdock, failed, and assigned the property of the firm to Henry R. Pynchon, of New-Haven, in Connecticut, who stood bound as their endorser, in the sum of $15,-000.

Demurrer to replication. The declaration is of February term, 1828, and contains counts on two promissory notes made by the intestate, and also the money counts.

This was an action of trespass quare clausum fregit, tried at the Herkimer circuit, before the Hon. Nathan Williams, one of the circuit judges. The suit was originally commenced before a justice, the defendant pleaded title, the plaintiff declared in the common pleas, and the cause was removed into this court by certiorari.

This was an action of trover, tried at the Washington circuit, in June, 1831, before the Hon. Esek Cowen, one of the circuit judges. The action was brought to recover damages for the conversion of a quantity of saw logs. The parties in this case were the joint owners of the three lots of land covered with timber, of which they may made a division between themselves, assigning one lot to the plaintiff, and two to the defendants, who were partners in the lumber business.

Demurrer to return to alternative mandamus. A judgment was obtained by the relator in a justic’s court against one J. Start, who sued out a certiorari to remove the judgment into the Onondaga common pleas. The judgment was rendered in the justice’s court on 15th March, 1830.

Case of guaranty. One Nathan Stickney was the holder of a contract executed by the agent of a landholder for the sale of a small tract of land, which he surrendered to the agent and took a new contract from him, by which the agent agreed to convey the same lands, about 80 or 90 acres, to James Johnson, the defendant in this cause.

Error from the Ulster common pleas. Thorne and two others were trustees of school district No. 5, in Kingston, and brought an action against Dubois to recover $12,62, imposed upon him as his proportion of a tax laid upon the taxable inhabitants of the district, for the purpose of raising money to build a school house. The suit was commenced in a justice’s court, and brought into the common pleas by appeal.

This whs an action of debt on recognizance, tried at the , Washington circuit in November, 1829, before the Hon. Esek Cowen, one of the circuit judges.

<p>Error from Orange common pleas. The defendant in error, M. Evans, as administratrix of T. G. Evans, deceased, sued Fry in a justice’s court, and demanded in her declaration $25, the amount of an execution in favor of the intestate, against one Lusk,received by Fry since the death of the intestate, and also $9,62, the price of a cistern purchased by Fry also since the decease of the intestate. Fry pleaded the general issue, and gave notice of set-off, goods, &c. sold to the intestate in his life-time. The cause was tried and testimony adduced on both sides; the administratix proved the receipt of the $25 by Fry, but whether received by him before or after the death of the intestate was somewhat left in doubt; the sale of the cistern was clearly proved. Fry offered to prove his set-off, but the justice refused to received the evidence. The jury found a verdict for the administratrix for only $9,82, the price of the •cistern and probably the interest thereof, on which verdict the justice rendered judgment; the administratrix sued out a certiorari to the Orange common pleas, where the judgment of the justice was reversed; whereupon Fry, the defendant below, .■sued out a writ of error to .this court.</p>

This was an action of assumpsit, tried at the Rensselaer circuit in June, 1830, before the Hon. James Vanderpoel, one of the circuit judges.' The facts upon which the questions of law presented in this case arise are as follows: On the 17th September, 1828, the defendants purchased of the plaintiffs four promissory notes which they held against a mercantile firm transacting business under the name of Sprague & Dann ; these notes all bore date on the 17th March, 1828, and…

Error from the superior court of the city of Yew-York. Griffin recovered a judgment in a justice’s court in the city of New-York, against Mortimer, for $30 damages, and $8T2/g-costs.

This was an action of assumpsit for work done under a special contract, tried at the Oswego circuit in June, 1830, before the Hon. Nathan Williams, one of the circuit judges. It was proved that Henry Ward, one of the defendants, had died since the commencement of the suit. Lindsley Ward, a son of Henry Ward, was sworn and examined as a witness on the part of the surviving defendant, although objected to by the plaintiff as incompetent on the ground of interest.

Action against a husband for necessaries furnished his wife. The cause was submitted to referees, who made a report against the defendant, which he moved to set aside.

Demurrer to plea. This is to an action of debt for the escape of one E. M. Blunt, arrested on an attachment from chancery for the non-payment of a bill of costs.

<p>Error, from the Greene common pleas. Hallenbake sued Fish in a justice’s court, and declared in trover for detaining a bridle and saddle left in the possession of Fish as an inn-keeper. Fish pleaded the general issue. The plaintiff recovered before the justice, and the defendant appealed to the Greene common pleas. On the trial in that court, the plaintiff proved that he stopped at the inn of the defendant, and delivered his horse to the ostler of the defendant to be fed ; that the ostler took the saddle and bridle off the horse and deposited them in a barn ; and that when the plaintiff called for his horse, the saddle and bridle could not be found. The plaintiff demanded them of the defendant; what had become of them, or that at the time of the demand they were in the possession of the defendant was not shewn. The common pleas ruled that the action of trover would not lie, and nonsuited the plaintiff, who brought error to this court.</p>

The defendant was tried on an indictment for grand larceny, at the Herkimer circuit, in September, 1831, the indictment having been removed from the oyer and terminer, into this court by certiorari. The defendant was acquitted, and a new trial was moved for, on the ground of the alleged misdirection of the jury by the presiding judge.

This was an action of debt on bond, tried at the New-York circuit in December, 1829, before the Hon. Ogden Edwards, one of the circuit judges. The suit was on a joint and several bond executed by the defendant, by David B. Dunham and two others, bearing date 12th May, 1826, conditioned for the payment of $6,700, with lawful interest, on the 13th October ensuing the date of the bond.

Error from the Jefferson common pleas. Kelsey sued Estes in a justice’s court in trespass, for throwing down and removing 25 rods of fence.

This was an action of assumpsit, tried at the Rensselaer circuit in June, 1830, before the Hon. James Vanderpoel., one of the circuit judges. The declaration contained the common money counts.

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

Error from the Monroe common pleas. Filer sued Tenny in trespass de bonis asportatis before a justice, and recovered judgment The defendant appealed to the Monroe common pleas, and on the trial in that court the plaintiff, in support of his right to recover, proved a justice’s judgment against one Brooks, an execution issued thereon, and a purchase of some wheat in the ground, for the taking of which the action was brought.

Error from the Oneida common pleas. Borden sued Mitchell in slander, for charging him with having sworn false on the trial of a cause in which one Wynkoop was plaintiff and Mitchell defendant.

This was an action of slander, tried at the Clinton circuit in January, 1830, before the Hon. Esek Cowen, one of the circuit judges. A witness for the plaintiff testified that in December, 1828, the defendant accused the plaintiff with having sworn falsely in regard to some of their business, and said something about complaining to the grand jury ox attending to the grand jury.

Error from Greene common pleas. King sued Lane in a justice’s court for cutting and carrying away rye growing upon a certain farm, and recovered judgment. Lane appealed to the common pleas of Greene, and on the trial in that court the following facts appeared: in December, 1827, one Lampman executed a mortgage of a farm to King, to secure the payment of #1300, of which #250 was to be paid within one year, and the residue in four annual instalments.

7 This was an action of trespass for mesne profits and ck ho* nis asportatis, tried at the Cayuga circuit in January, 1830, before the Hon, Daniel Moseley, one of the circuit judges, In July, 1821, the plaintiff commenced three ejectment suits for the recovery of part of a lot of land, on which there was a steam mill for the grinding of grain.

Error from the Oneida oyer and terminer. The prisoner was indicted for a felony, on the complaint of Eve Bellinger, his daughter, who, on the trial of the indictment, testified as a witness against him.

This was an action of assumpsit,tried at the New-York circuit in June, 1829, before the Hon. Ogden Edwards, one of the circuit judges. The suit was on a promissory note for $550, dated 27th October, 1818, payable to the order of Thomas Scott, 60 days after date. The plaintiff declared as endorsee under an endorsement alleged (as usual) to have been made on the day of the date of the note.

In slander it is no defence, nor can it be given in evidence in mitigation of damages, that the defendant at the time of the speaking of the words gave his author, and was, in fact, told by another what he uttered against the plaintiff. Nor can general reports of the truth of the charges be given in evidence in mitigation of damages, unless they be such as to have affected the general character of the plaintiff.

This was an action of trespass de bonis asportatis, tried at the Tompkins circuit in January, 1830, before the Hon. Samuel Nelson, then one of the circuit judges.

Demurrer to pleas. The plaintiffs declared in covenant on an article of agreement, bearing date 11th March, 1828, whereby the defendant agreed by the first Monday of May, 1828, to pay two certain notes made by the plaintiffs, to H. Baldwin, bearing date 18th July, 1827; the one payable in 3, and the other in 6 months after date; and also, to pay tQ ^ p]a¡ntifTs, in four months from the date of the agreement, $233, deducting thereout such costs as should, previous to the…

<p>A deed of the survey fifty act es in a military lot from the surveyor-general to a purchaser, is not within the purview of the acts of 1794, relative to military bounty lands, requiring deeds and conveyances concerning such lands to be filed and deposited.</p> <p>Nor is it necessary that a deed from such purchaser to his vendee should have been filed or deposited to give it validity; nor that it should be recorded where such deed was executed pretieras to the recording acts.</p> <p>Proof that one of two subscribing witnesses to a deed removed from the state 30 years before the trial, and that the other has not been heard from for 37 years, is accounting sufficiently for the absence of such witnesses; and on proof of the hand writing of one of the witnesses and of the grantor, the deed was read in evidence.</p> <p>A purchaser of lands, at a sheriff’s sale, under a judgment and execution, since the statutes requiring deeds to be recorded, will hold the same, although the defendant in the execution had, previous to the judgment, sold and conveyed the lands by deed, provided that the deed from the sheriff is recorded pre vious to the record of the deed from the debtor in the execution to his grantee, unless the purchaser at the sheriff’s sale, at the time of his purchase. had notice of the previous deed. The case of Jackson v.Post, 9 Cowen, 120; commented on and explained.</p>

This was an action of debt under the eight section of the act to prevent and punish champerty and maintenance, tried at the Herkimer circuit in March, 1830, before the Hon. Nathan Willians, one of the circuit judges.

Case from the Niagara oyer and terminer for advice. Campbell was indicted for perjury.

Error from the superior court of the city of New-York. Cunningham sued R. Gilchrist and J. T. Gilchrist in án action of assumpsit for money had and received. On the 9th August, 1857, the defendants being commission merchants, made an advance to the plaintiff of $1500, by their note for that sum at 90 days, which, when due, they paid.

<p>U nder the act of 1825, L“ to prevent fraudulent bankruptcies by incorporated companies,” an action prosecuted by receivers in the name of a corporation, may be maintained against a bank director for the penalty incurred by paying out a portion of the capital stock of the company to a stockholder, although it be admitted by the pleadings that the bank had been insolvent for one whole year, had during that time neglected to redeem'its notes, and had suspended its ordinary business. In the declaration, however, it must be averred that the suit is prosecuted by the direption of the receivers.</p> <p>Such suit may be brought in the name of the corporation although the act declares that any company violating its provisions shall be deemed and adjudged to hove surrendered its rights, &c. and shall be deemed to be dissolved; the surrender and dissolution spoken of in the act is but a quasi and not an absolute and consummated surrender or dissolution; the company remains in esse until it is formally adjudged to be dissolved.</p> <p>Since the revised statutes, the receiver in such cases is authorized to bring actions in his own name.</p>

<p>This was an action of ejectment, tried at the Otsego circuit before the Hon. Robert Monell, one of the circuit judges.</p> <p>The plaintiff claimed to recover the premises in question under a loan-office sale. On 1st .May, .1810, one Horace Coleman executed a mortgage to the commissioners of loans of the county of Otsego, of an undivided half of a certain lot containing 229 acres, to secure the payment of $77, with the interest thereof annually, containing the usual clause inserted in loan office mortgages, that on failure of payment at the days specified, and for 22 days thereafter, the mortgagor should be absolutely barred of and from all equity of redemption. One year’s interest due in May, 1819, not being paid, the commissioners advertised the premises for sale on the 21st September, 1819. A copy of the advertisement was entered on the book of minutes of the commissioners, on the 1st June, 1819, and was directed by the commissioners to be published in a newspaper printed at Cooperstown, in the county of Otsego, for three weeks. It was accordingly published on the 7th June, 1819, and was continued for the two succeeding weeks, when it was discontinued. On the 2d August, 1819, the advertisement was again published by the direction of the commissioners, and was continued until the 21st September, on which day the mortgaged premises were sold to the plaintiff and two other persons, and a deed executed to them. The premises were sold for the sum of $200 ; the amount of the mortgage monies, principal, interest and the costs were retained by the commissioners, and the balance, viz. $107, paid to the mortgagor. In January, 1831, the plaintiff commenced his suit against the defendant who was in possession, claiming title under J. B. Lawrence and J. D. Keese, to whom Coleman executed two mortgages of the whole lot, half of which was mortgaged to the loan officers; one mortgage bearing date in 1811, to secure the payment of $1600, and the other bearing date in 1816, to secure the payment of $1900, which mortgages were duly registered, and in 1820, foreclosed under the statute; the mortgagees, Lawrence & Keese, became the purchasers, and the defendant entered into possession under them, and has continued in possession ever since the foreclosure. The jury found a special verdict, setting forth the above facts. The plaintiff claimed to recover one sixth of the 229 acres. The defendant relied upon the irregularity of the sale by the commissioners of loans in respect to the notice, to defeat the plaintiff’s recovery. Knowledge of the irregularity was not brought home to the plaintiff.</p>

This was an action brought to recover dower in certain lands claimed to belong to Elizabeth, the wife of Sayre, as the widow of her late husband, William Wisner, tried at the Orange circuit in 1830, before the Hon. James Emott, then one of the circuit judges.

Error from the New-York common pleas. This was an action of assumpsit, brought by Warner and Post against Gris-wold, to recover the amount of a bill of costs in a suit prosecuted by them for Griswold.

This was an action of debt, against the sheriff, to recover the penalty given by the statute to prevent abuses in the action of replevin, for making deliverance of property without trying the right on a claim being interposed, tried at the Oneida circuit in April, 1830, before the Hon. Nathan Williams, one of the circuit judges.

Error from the Oneida common pleas. Ross and Shaw, as overseers of the poor of the town of New-Berlin, sued Thomas to recover the penalty given by the statute, for bringing a pauper into a town, where such pauper had nota legal settlement.

This was an action on the case, tried at the Albany circuit in September, 1830, before the Hon. James Vanderpoel., one of the circuit judges. Held: ever had title to the land; not even a possessory title was shewn, either in Saddle ■ mire, Vrooman or the plaintiff.