Volume 9 — Barbour's New York Supreme Court Reports

The plaintiffs in their complaint demanded, as relief, that the defendant, William Stevenson, should account with them for all sums of money received and collected on two bonds and mortgages, since their assignment by Daniel Stevenson, and which the plaintiffs alledged were assigned by said Daniel Stevenson for their benefit; and that the defendant should be directed to collect all sums remaining unpaid on such bonds and mortgages, and to account and pay over to the…

<p>A. payment in current bank bills, if accepted by the sheriff without objection, is a good payment for the purpose of redeeming real estate sold on execution.</p> <p>Although it is not made the duty of a sheriff, upon a party coming to redeem premises from a salempon execution, to compute the interest on the purchaser’s bid and to ascertain the precise amount to he paid by such party; yet if he, or ¡his duly authorized special agent, voluntarily undertakes to make the computation, and in so doing commits an error, and thereby misleads the party, who makes no computation himself, in consequence of which he makes a short payment, and the sheriff accepts the same as a payment in full, the redemption will be held valid and effectual; notwithstanding the sum paid by the redeeming party is less than the amount actually due,</p> <p>A court of equity has the power to accord relief to the owner of real estate coming to redeem his lands sold on execution, from the consequences of a mistake of fact, on the part of the sheriff or his special agent, by means of which mistake such party has been misled, and has thereby failed to comply with some one of the requirements of the redemption act.</p> <p>A deputy sheriff who sells real estate upon an execution, has the right to authorize another person to compute the amount necessary to be paid in order to redeem the land, and to direct the redemption money to be deposited with such person, as his agent.</p> <p>Where, after a party has made a valid redemption of real estate sold on execution," the sheriff executes a deed thereof to another person, although the redeeming party may have a remedy at law, yet he has a right to come into a court of equity to have the sheriff’s deed set aside and cancelled, as a cloud upon his title.</p> <p>If, for the purpose of redeeming land sold on execution, a party pays to the sheriff the sum computed by the latter to be the amount due, and necessary to be paid, in order to effect a redemption, but owing to a mistake or error on the part of the sheriff, in making the computation, the sum paid is 30 cents less than is actually due; It seems that the payment will be valid, and that it comes within the principle of da minimis non curat lex.</p> <p>Where a purchaser of real estate sold by a sheriff on execution, being the fourth part of an ore bed, of which such purchaser already owned three-fourths, with knowledge of an attempt having been made by the judgment debtors to redeem the premises, and that the latter considered the redemption valid, failed to give them notice of his objection to the redemption, in time to enable them to procure a redemption through a friendly creditor; and stood by for several years and suffered the judgment debtors to expend money on the premises, in the erection of vain able buildings, &c. under the belief that they were part owners of the- property with him, without making known to them his own claim to the debtors’ share of such property, Under his purchase at the sheriff’s safe, in the meantime recognizing them as co-tenants of the lot; Held,, that these circumstances ought to be regarded, in a court of equity, as a ratification of the redemption, and a waiver of any irregularity or defect therein ; and that principles of equity would not permit such purchaser afterwards to assert his title, as against the judgment debtors.</p> <p>Held also, that under these circumstances, the court ought to go further than merely to compel the purchaser at the sheriff’s sale, or his assignees, to pay the judgment debtors a compensation for their improvements; that it would hold the purchaser estopped, in equity, as against the judgment debtors, from exercising any legal right whatever over the latter’s share of the property.</p> <p>If a person maintains silence, when in conscience he ought to speak, equity will debar him from speaking, when conscience requires him to be silent.</p>

The complaint in this cause stated that William Caldwell, late of the city of Albany, departed this life on the 1st day of April, 1848, after having made and published his last will and testament, in writing, in due form of law to pass real and personal estate, bearing date the 29th day of March, 1841, and also a codicil thereto in like form, bearing date the 29th day of December, 1841; which will and codicil were in force at the time of the testator’s death.

This cause originated in a justice’s court, where Stone was plaintiff and recovered judgment. Allen carried the cause by certiorari to the Washington common pleas, where the judgment was affirmed, and the cause was removed into this court by writ of error. The return showed the following facts: a non-resident plaintiff; a resident defendant; a short summons issued; no affidavit made of the plaintiff’s non-residence, nor any security for costs given.

In Equity. This was an appeal to the chancellor from a decree of the vice chancellor of the fourth circuit, and came to this court in pursuance of the new constitution and the judiciary act of 1847.

Paige sued the Hydes before a justice, in assumpsit for grain, goods, &c. sold. The defendants pleaded the general issue. The suit was commenced in February, 1847. A judgment was rendered in favor of the plaintiff, which was removed to the county court of Washington county, and that court reversed the judgment of the justice on the ground that the plaintiff had taken the note of one Moulton, the defendants’ agent, in payment for the goods, and relied upon that alone.

Motion to set aside, report of a referee. The action was commenced in November, 1846, to recover from the defendant, for the benefit of the city of Schenectady, about $820 which had been expended by the city in pitching, levelling, paving and flagging State-street and the side walks thereof in the said city to the centre of the said street in front of the real estate of the defendant.

<p>Motion to set aside report of referee. This was an action against the defendants, as common carriers, for the non-delivery of goods. The plaintiff alledged, in his complaint, that on the 9th day of January, 1849, at Ballston Spa, in the county of Saratoga, the defendants promised and agreed to carry and deliver a quantity of dry goods, of the value of one hundred and three dollars and twenty-nine cents, the property of the plaintiff, from Ballston Spa to the city of Troy, in the county of Rensselaer; that the goods were received and entered in the freight book of the defendants at Ballston Spa, on the said day, but the defendants never carried and delivered the said goods as aforesaid, but retained them to their own use contrary to law,” <fcc. The defendants put in an answer denying that they promised to convey and deliver the goods in question from Ballston to Troy, or that the same were received and entered in the freight books of the company. They also averred that they did carry and deliver all the goods by them agreed to be carried and delivered, or deposited with them for that purpose, agreeably to their contract and directions received. And that if they were not so carried and delivered, the default occurred from the negligence of the plaintiff and not from any want of care or diligence on the part of the defendants. And they denied the conversion of the goods. The cause was referred to a referee, who reported in favor of the plaintiff, for $103,29, the amount claimed. The defendants, upon a case, moved to set aside the report.</p>

This was a writ of error to the court of oyer and terminer for the county of Saratoga. From the return to the writ, it appeared that the plaintiffs in error were indicted, at the Saratoga sessions in January, 1848, for a nuisance in not keeping their road in necessary repair.

This was an action of trover for a carriage. The pleadings were drawn up under the code of 1848.

Assumpsit on a policy of insurance against loss by fire. The cause was tried the second time, at the Fulton circuit in November, 1843, before Cushman, circuit judge.

This action was brought against the defendant on a subscription paper signed by the defendant and others, which was in the following words: “We the subscribers agree to pay the sums set opposite our respective names, for the purpose of building a Presbyterian Church at Glen’s Falls.

This was an appeal by the defendant from a judgment rendered at a special term, upon demurrer to the reply. The action was commenced by serving the complaint on the 27th of February, 1849.

This was an appeal by the defendants from a judgment entered at special term upon the report of a referee. The action was brought by Cobb against Dows, Guiteau, Church & Ball. The complaint alledged that Cobb, the plaintiff, on the 9th day of May, 1848, owned and held about 3500 bushels of wheat, then being in the public stores, known as the Atlantic dock store houses in Brooklyn.

<p>By a submission to arbitration, executed by and between A. & G. the parties agreed to submit to arbitrators the question as to the amount of damages which A. might sustain in leaving his residence in the town of E. and in seeking another field of labor, upon the following terms, viz.: that G. should put into the hands of the arbitrators his note for $500, and that A. should put into their hands a receipt in full for G.; that the parties should then introduce all the testimony which they might have, touching the amount of damages A. should sustain in moving from E.; that the arbitrators should then decide, according to the testimony, upon the amount of loss to A., and should reduce the $500 note until it should correspond with the amount of loss determined by them; and that they should then deliver such note to A. and the receipt to G. In an action by A. upon an alledged award made by the arbitrators, under such submission, the declaration alledged that on the hearing before the arbitrators, A., the plaintiff, introduced testimony touching the amount of damages which he should sustain in moving from the town of E.; that the arbitrators then decided the amount of loss which A. would, sustain in moving from E., and that they made an award directing that G. should pay to A. $500 “ in full payment, discharge and satisfaction of and for all damages and loss which the plaintiff has or may sustain in closing up his labors, and in having the premises which he has fitted up for himself, and for other inconvenience.” Held, on demurrer, that the declaration was bad in substance, in not showing that the arbitrators had any power to make the award declared on; and that the award was void, for want of such power.</p> <p>Held also, that if the parties had neglected to deliver the note and receipt, according to the submission, it was a mutual abandonment of the agreement, and neither party had any right to complain of the neglect of the other; and that the arbitrators had, in that case, acted without authority. Held, further, that the submission ought not to he understood as authorizing the arbitrators to make an award before any damages had in fact been sustained by A.; and that the award set out in the declaration, being, not for damages which the plaintiff had sustained before it was made, but for damages which the arbitrators supposed he would sustain if he did remove from the town of E., such award was void, for being prematurely made.</p>

Motion to set off a judgment. On the 4th of October, 1845, the defendant Briggs recovered a judgment against the plaintiff Smith, before a justice of the peace, for $65 damages, besides costs of suit, on a note given by Smith, as security for the payment of a note held by Briggs against Anna Smith. Briggs also recovered a judgment upon the note against Anna Smith.

In Eq.uity.] This was a creditor’s bill, filed to enforce the collection of a judgment in the supreme court, obtained the 27th day of October, 1846, in favor of the complainants against the defendant Dighton Z. Mosher, for $390,69, on a demand due prior to September, 1846.

Appeal, by the plaintiff, from a judgment of nonsuit entered upon a report of referees. The action was brought against the defendants as superintendents of the poor of the county of Jefferson, to recover the amount of an account for supplies furnished by the plaintiff for the county poor-house in the year 1848, before the defendants became superintendents of the poor.

This was an appeal, by the defendant, from a judgment entered against him at the circuit, upon the verdict of a jury. The action was brought against the defendant to recover damages for Ms neglect and refusal to collect or secure a note made on the 8th of March, 1831, by Lyman Sherwood and three others, and to pay over to the plaintiff the money due upon said note, according to a covenant made by the defendant on the 21st of April, 1831.

This was an action of ejectment. The defendants appeared by different attorneys. The lands and premises in controversy were situated in the town of Little Falls, in the county of Herkimer. The complaint contained a single count. The seisin of the plaintiff was stated to have been on January 2, 1849, and the entry and eviction On the part of the defendants to have been on January 8,1849.

This was an action of ejectment, tried before the Hon. Charles Mason, one of the justices of this court, at the Herkimer circuit, in October, 1849.

<p>A mortgage is a chose in action. The statute prohibiting attorneys, &c. from buying choses in action with the intent or for the purpose of bringing suits thereon, extends to suits in equity.</p> <p>But a proceeding to foreclose a mortgage by advertisement, is not a suit in any court, within the meaning of that statute.</p> <p>The mere purchase of a chose in action, by an attorney, is not of itself sufficient evidence of the intent mentioned in the statute. The illegal intent and purpose must be proved.</p> <p>As a general rule, bare intention, without an illegal act, is not punishable. Per Hand, J.</p> <p>A demurrer admits the facts that are relevant and well pleaded, but not conclusions of law.</p>

<p>By a perpetual lease in fee, executed in 1794, reserving an annual rent, the lessee covenanted to pay the rent on the 1st day of January of every year, and it was provided that if such rent remained unpaid for the space of 28 days, the lessor might prosecute to recover the same, or might collect it by distress and sale; and that if no sufficient distress could be found on the premises, to satisfy such rent due and in arrear, or if either of the covenants therein before contained, fyc. should not be performed, fulfilled and kept, or should be broken, then it should be lawful for the lessor to re-enter, &c. Held that the lease did not make a proceeding by distress a condition precedent to the right of re-entry, and that there was neither an implied nor an express agreement between the parties that the landlord should not re-enter if a sufficient distress could be found upon the demised premises.</p> <p>Held also, that under the stipulation in the lease, allowing the landlord to reenter if any covenant was broken, he had a right at common law to proceed, without regard to the question of a sufficiency of distress. And that under that provision it was competent for the legislature to alter the common law proceeding, or to prescribe an additional mode of re-entry.</p> <p>Held further, that there was nothing in the third section of the act of May 13, 1846, to abolish distress for rent, &c. changing in any respect the contract contained in the lease. That the effect of that section was, instead of changing the proceeding at common law, to give a new remedy, as a compensation for the abolishing of distress for rent by the first section of the act.</p> <p>The provisions of the revised statutes on the subject of ejectment for nonpayment of rent, are not repealed by the act of May 13,1846. A landlord may still re-enter, when there is not enough personal property on the demised premises to satisfy the rent.</p> <p>He may also, it seems, still re-enter at common law, or he mav proceed under the third section of the act of May, 1846.</p> <p>The repeal of a statute, by implication, is not favored; but courts are bound to uphold the prior law, if the two acts may well subsist together.</p> <p>The rule of construction is that the earliest act remains in force, unless the two acts are inconsistent with, and repugnant to, each other.</p> <p>The service upon the tenant, of the notice required by the act of May 13, 1846, is the only pre-requisite to the right of re-entry under the statute. Such notice was not intended to be in addition to the formalities of the common law proceeding.</p>

This was an action for trespass on the case for taking out of the possession of the plaintiff three boys, viz.: William H. Pillow, jun., Edward B. Pillow, and John D. Pillow, whom the plaintiff claimed under indentures of apprenticeship. The cause was tried at the Columbia circuit, in December, 1848, before Justice Harris.

This was a writ of error to the Rensselaer county court. Like sued Thompson in trover before a justice of the peace, to recover the value of a watch. The defendant pleaded the general issue. It appeared on the trial that Like and one Ambler had made a bet or wager of watches on the result of an election. The watches were deposited with Thompson as stakeholder. About a fortnight after the election Like gave notice to Thompson not to give up the watch to Ambler.

Case, brought against the defendants as common carriers, for the loss of a case of goods. The plea was the general issue. The cause was tried before Justice Parker, at the Albany circuit, in December, 1848, and by consent of parties a verdict for. $112 was taken for the plaintiffs, subject to the opinion of the court. It appeared on the trial that, at Boston, in September or October, 1846, three cases of goods marked A. B. Case, Chicago,” were delivered to the plaintiffs.

In Equity. The bill in this cause was filed for the construction of a will. John B. Yates died in July, 1836, leaving real afid personal property.

This was an action on the case, brought by John and William B. Harris against Thompson and eighteen others, for tearing away a part of the Fort Miller dam in September, 1846, by which act the mills of the plaintiffs thereon were stopped for want of water. The cause was tried in June, 1848, at the Sara-toga circuit before Justice Hand.

This was an action of ejectment, to recover the possession of the premises described in the complaint. On the 20th day of November, 1845, the plaintiff was married to Caroline A. Hurd. On the 20th day of December, 1849, Samuel A. Campbell and wife being seised in fee of the premises in question, conveyed the same by deed to the said Caroline A. the wife of the plaintiff.

This was an action brought by the plaintiffs to recover for services performed for the testator of the defendants by the plaintiff’s wife, before coverture. The plaintiff’s account, duly verified, was presented to the defendants on the 14th of November, 1848, and was by them rejected as “ unjust and not due.*’ The suit was commenced on the 13th of December, 1848.

On the 7th day of June, 1850, the plaintiff made an affidavit as follows : “Washington county, ss.

The motion to set aside the report of the referee, in this ca.se, having been denied, as reported, ante, page 377, the plaintiffs, upon affidavits and the pleadings and other papers, applied to the court at special term, for costs against the defendants, to he paid out of the estate of the testator, under 2 E. S. 90, § 51; and also for an extra allowance under section 308 of the code of procedure.

This was an action of assumpsit, and the declaration was on the common counts, with, a copy of the note on which the plaintiff, as holder, sought to recover against the defendant as payee and first indorser. The plea was non-assumpsit, accompanied with an affidavit of the defendant, alledging that no notice of nonpayment of said note had been received by him. The cause was tried before Justice Harris, at the St. Lawrence circuit, in June, 1849.

<p>In an action upon a note or contract for the payment of a specified sum, in wagons, the defense was that the wagons had been delivered by the defendants, according to the contract. It was proved that the plaintiffs immediately on seeing the wagons, wrote a letter to their attorneys, at the place where the defendants resided, declining to accept the wagons on the contract, pointing ont their defects, and suggesting a course for the defendants to adopt; and directing the attorneys to communicate it to the defendants, which they accordingly did. Held, that such letter was admissible in evidence, as being the notice by the plaintiffs of their non-acceptance of the wagons, and of their specific objections to them.</p> <p>Held also, that such letter being obviously intended to be shown to the defendants, and having been in fact read to them, it was not material that it was not addressed to them.</p> <p>What acts amount to an acceptance of articles attempted to be delivered in fulfillment of a written contract.</p> <p>Under a contract for the delivery of specific articles at a particular place, other than the residence of the promisee, it is the duty of the promiser, after making the delivery at that place, to notify the promisee thereof, without delay.</p> <p>Until such delivery and notice, the promisee is not in a condition to object to the quality of the articles; nor can the title pass.</p>

This was an action of ejectment brought to recover seventy-six acres of land, being lot number one in Abeel’s three thousand acres patent; and was brought to trial on the first Monday of February, 1849, before the Hon. John Willard, one of the justices of the supreme court, in the county of Warren.

Trover, for a quantity of barrels, tried at the Essex county circuit in January, 1848, before Justice Paige. On the trial; George H. Blinn was called as a witness on the part of the plaintiffs, and testified that he lived at Port Henry and knew the plaintiffs, who lived in Bridport, Vt., and were merchants; the defendant lived in Port Henry; that he knew Bartholomew Foley, who lived at Port Henry.

This was an action of trespass, brought by the plaintiff against the defendants for breaking and entering two certain closes, belonging to him, in Whitehall, and which were described by metes and bounds, and treading down the grass, digging great quantities of earth and stone, and building embankments, &c. The declaration contained seven counts, in which the injury was variously stated, ifo question was raised as to the sufficiency of the declaration as a pleading.

Indictment for perjury, tried at the Livingston oyer and terminer, in May, 1850. The defendant was indicted for perjury, in testifying before the grand jury, by which testimony he procured one Isaac Divine to be indicted for forgery, in uttering counterfeit money.

Motion to set aside report of referee. The declaration was upon the common money counts, with a count upon an insimul computassent. On the trial before the referee, the following facts appeared. On the 23d day of September, 1847, the defendant, at Lockport, shipped on board the canal boat “ William Graves,” Capt. Arndt, 590 barrels of flour, and took a shipping bill in the words and figures following: “ Lockport, Sept. 23d, 1847.

In Equity. The bill was filed by the plaintiffs, as subsequent mortgagees, to redeem a portion of certain premises covered by their mortgage, from a sale under a prior mortgage, and to foreclose their mortgage. The first mortgage was executed upon the whole premises, Sept. 27,1837, and was foreclosed by advertisement published in a newspaper twelve weeks, and bid in by the assignee of the mortgage, on the 5th of April, 1843.

Motion to set aside report of a referee. William DuyoII, on the 11th of March, 1846, made his will, by which, among other provisions, he devised to the plaintiffs, his grandchildren, a certain piece of land containing about sixty acres, in fee, subject to an interest which by the same devise was vested in the son of the testator and father of the plaintiffs, during his life.

Suggestion for mesne profits. The suggestion claimed mesne profits from 12th of July, 1837, until 15th of April, 1845.

These causes came before the court upon demurrers to the returns to writs of mandamus, commanding the defendants to appraise certain canal damages, claimed by the relators to have been sustained by them, by reason of the diversion of the waters of the Genesee river, to feed the Erie and Genesee Valley canals, or show cause, The appraisers decided that by reason of the expiration of more than one year between the time when the appropriations were made, and the time of the…

Declaration in debt on a judgment in the late court of common pleas of Monroe county, in a suit commenced on the 13th of December, 1842, and judgment recovered 14th March, 1843, for $273,84, in an action on promises. Plea, discharge in bankruptcy.

Error from the late court of common pleas of Steuben county. The defendant in error, who was the plaintiff in the court below, declared against the defendants in that court, in trespass, for taking and carrying away twelve tons of hay of the plaintiff, &c. The defendants pleaded not guilty, and gave notice of special matter. At the trial in the court below, in May, 1846, the plaintiff gave the following evidence of the trespass.

<p>An indorsee of a promissory note, who has paid a part of the amount of a judgment obtained by the holder against the maker and indorsers, may recover the same of the maker, in an action for money paid, laid out and expended.</p> <p>The maker of a promissoiy note is prima facie liable to all the subsequent parties. If there are any circumstances discharging his liability as such prior party, they should be clearly shown.</p> <p>The taking of a joint judgment, by several indorsers of a promissory note, from the makers, to secure the former as indorsers of the judgment debtors, will not have the effect to create an implied agreement that the parties will he jointly and equally liable upon any note then existing or that may be after-wards given.</p> <p>A promise, by an indorser of a promissory note, to pay one half of a judgment recovered by the holder against the maker and indorsers, upon the note, is void, as between the jndorger and maker, for want of consideration.</p>

Brewer sued Salisbury and others in a justice’s court, to recover the value of ten sides of leather. The jury gave a verdict for the plaintiff for $18,12 damages, on which the justice rendered judgment, with costs. The county court of Cortland county reversed the judgment, on the ground that the property did not pass to the plaintiff—that there was no delivery—and that the contract between the plaintiff and Webster was executory only. The plaintiff appealed.

This waa a suit in equity, commenced before the code. Deferred by stipulation, dated November 30,1848, to Thomas B. Mitchell, Esq. to take the testimony and state the account between the parties under the pleadings, and report to the court. The referee reported that there was due the plaintiff $200, and that the plaintiff was entitled to one-fifth of a certain farm, which the referee valued at $6325. At the special term in Otsego, in July, 1850,

This was an action brought by a mother, for the seduction of her daughter Eliza George, and was tried at the Tompkins court, in September, 1849. The daughter was over-thirty years of age at the time of the illicit connection which resulted in the birth of a child, in May, 1849. At the time of the illicit intercourse her father was alive, but he died a few months after, and before the birth of the child.

This was an action brought upon a draft, dated Aug. 1,1848, drawn by the defendant Hinde as agent, on the defendant L. T. Beardsley, in favor of the plaintiff Hicks, for $120,82. Hinde signed the draft John Hinde, agent.” The draft was accepted by Beardsley, but was not paid by him when it became due. It was protested for non-payment, and notice was given to Hinde. Hinde, at date of the draft, had charge of a factory in Waterford, for Beardsley, as his agent.

In Eciuity. The hill in this cause was filed in 1845. Dwight Gilbert married Laura Gilbert, the plaintiff, in 1815. On the 24th of September, 1886, Dwight was seised in. fee of lot No. 31, Dean’s patent, containing 200 acres. At that time he made his will, and gave a few legacies; to his brother James, all his wearing apparel; and said lot No 31 and his household furniture, &c. and all his other personal property, including certain notes, cash, <fcc. to the plaintiff.

This was a writ of certiorari, issued to the respondents, to bring up the proceedings taken by them for the grading of Flushing avenue in the city of Brooklyn, from Hampden-street to Clermont avenue,■ and also the proceedings for opening Flushing avenue from Nassau-street to the Wallabout road, and all maps and statements showing how said portion of Flushing avenue was laid out by the commissioners appointed by the legislature to lay out streets &c. in said city.

This action was brought by the plaintiff, as trustee of Mary M. Jennings, to recover the sum of $600, surplus moneys arising from the sale of mortgaged premises. The plaintiff claimed by virtue of a deed of marriage settlement made on the 21st of 'July, 1845, by and between William M. Jennings of the first part, Mary M. Jennings his wife of the second part, and Robert S. Gordon jun. of the third part.

Ejectment, tried at the Steuben circuit in August, 1848, before Marvin, justice. The plaintiffs claimed to be the trustees and legal owners of the lands known as the Pulteney estate; of which the premises in question, situated in the town of Pittsburgh in the county of Steuben, are a part. On the trial, to prove their title to the land in question, the plaintiffs introduced the following documentary evidence: 1.

The indictment was for burglary and larceny, and was tried at a term of the court of oyer and terminer for Ontario county, held in December, 1849.

<p>Where, in an action brought before a justice, against a sheriff, for an escape, it becomes material to inquire at the trial, at what time the summons by which the suit was commenced, was issued; and there is evidence tending to show that the summons was illegal and void, by reason of its not having been issued by the justice in person, but by his clerk, in pursuance of his directions; the defendant has a right to have submitted to the jury the questions, what were the instructions given by the justice to his clerk, and whether they were complete, so as to enable the clerk to issue the summons without the exercise of any discretion on his part, or directions from any other person.</p> <p>If the court takes those questions from the jury, and decides that the summons was lawfully issued, the judgment will be reversed, and a new trial granted.</p> <p>A justice of the peace can not delegate any part of his official power or authority to another.</p> <p>Yet it seems that he may depute another to do a specific act, without vesting in him any discretion.</p> <p>Error to the late court of common pleas of Wayne county. The case originated in a justice’s court.</p> <p>The defendants in error recovered judgment against the plain-</p>

Assumpsit for use and occupation. Plea, non-assumpsit and bankrupt discharge. On the 4th of May, 1839, the plaintiff, by writing under seal, leased to Marcus M. Wheelock the premises in question, being a tavern stand and about twelve acres of land in Campbell Town, Steuben county, for five years from May 1, 1839, at a rent of §80 a year, payable semi-annually in advance.

This was an action of assumpsit, commenced in November, 1847, and tried at the Steuben circuit in August, 1848. The declaration contained the common money counts, with a notice that a note would be given in evidence under those counts, in the words and figures following : “f 120. One year after date I promise to pay B. Beach or bearer, the sum of one hundred and twenty dollars, for value received.

Dunning sued Stearns before a justice of the peace of Monroe county, in an action of assumpsit, and recovered a judgment; from which Stearns appealed to the county court of Monroe county.

Trover for a quantity of lumber, tried at the Steuben circuit in September, 1848.

<p>Contracts for the sale of land are, in their nature, executory; and generally, the acceptance of a deed, in pursuance of a contract, is prima facie an execution thereof, and the rights and remedies of the parties are to be determined by the deed, and the agreement thenceforth becomes void, and of no further effect. But parties may enter into covenants collateral to the deed; and cases may arise in which the deed would be regarded as only a part execution of the contract, Avhere the provisions of the two instruments clearly manifest such to have been the intention of the parties.</p> <p>It frequently becomes a nice and difficult question to determine whether covenants contained in an agreement for the sale of land, are collateral to those providing for the execution of the deed, or are so connected with it as to be at an end, and become merged or satisfied in the execution of the deed. Per Welles, P. J.</p> <p>The true criterion upon that question is, that the covenant, in order to be deemed collateral and independent, so as not to be destroyed by the execution of the deed, must not look to, nor be connected with the title, possession, quantity, or emblements of the land Avhich is the subject of the contract. If it does so, the execution .of the deed, in pursuance of the contract, Avill operate as an extinguishment of it.</p> <p>An agreement.was made between the plaintiff and defendant, by which the latter, upon certain payments being made by the plaintiff, Avas to convey to him a certain quantity of land therein described. And the defendant further covenanted and agreed, that he would redeem that part of the land (amounting to about 17 acres) which had been sold for taxes; and that if it should be redeemed by the plaintiff, the amount paid by him should apply as so much paid on the contract; and that if the land could not he redeemed, a deduction should he made from the contract. Held, that this covenant was inserted for the benefit of the vendee, for the purpose of removing an incumbrance then resting upon a portion of the premises, and that it looked solely to the title which the purchaser was to receive. That the defendant was legally bound to make the redemption; and the title to the 17 acres having been lost, by his neglect to redeem, held also, that the plaintiff was not bound to pay for that part of the land, nor to take a deed including it.</p> <p>Held further, that the vendee having voluntarily paid the purchase money for the 17 acres as well as for the rest of the land, and demanded and received a deed for the whole, he could not maintain an action upon the contract, to recover the value of the 17 acres sold for taxes; his only remedy being upon the covenants in his deed.</p>

<p>Hunt, being the owner of a promissory note for $1000, made by Hayes and Churchill, applied to Cornell to pay him the money on it. Cornell agreed to give Hunt $900 for the note, if the latter would himself indorse it, and also get L. & K., the defendants, to indorse it. L. & IC. indorsed it by request of Hunt, and for his accommodation, he having first indorsed it himself. The note was then delivered to Cornell, who paid to Hunt $900 therefor. Subsequently, and before the note became duo, Hayes & Churchill became insolvent. Hunt then applied to Cornell, to be permitted to substitute two notes in lieu of the $1000 note. Cornell consented to accept two notes, to be signed by Hunt and indorsed by L. & K. Such notes were accordingly made, and delivered to Cornell, who, in consideration thereof, delivered up to Hunt the $1000 note. In an action brought upon the substituted notes; Held, that the transaction in respect to the original note was a sale and not a loan, and did not amount to usury; that the giving of the new notes was a new contract; and that the plaintiff was entitled to recover the amount thereof.</p> <p>It is settled that an indorsee, who buys a note at less than its face, can recover against the indorser no more than the sum for which he bought the note, with interest; though he may recover the full amount of the note against the maker.</p> <p>This rule applies only as between the parties to the sale; and rests upon the principle of recovering back the consideration paid. It does not apply to third persons who indorse for the accommodation of the payee, and who are not parties to the transfer.</p>

This was an action for an assault and battery, tried before Justice Wright, at the Ulster circuit in June, 1849. It appeared that the plaintiff had sent his servant, with a team and wagon, across the farm of the defendant, upon which he entered by taking down the bars, to the house of one Roosa, after the defendant had forbidden the plaintiff’s crossing his lands.

<p>In an action brought since the adoption of the code, to recover the possession of land, founded on a legal title in the plaintiff, an equitable right in the defendant to a conveyance is not a defense, any more than it was previously.</p> <p>It was not the object and effect of the 69th section of the code, in introducing a form of proceeding adapted to the enforcement of both legal afid equitable rights, to abolish all distinction between legal and equitable remedies.</p> <p>By that section one form of proceeding is made common to both legal and equitable actions. One mode is prescribed for the prosecution of rights and remedies, whether legal or equitable ; but the pre-existing distinction between those rights and remedies which the common law enforced, and those which equity alone could protect and administer, remains untouched.</p>

<p>An indictment for forgery lies for making and issuing a false instrument in the name of another, requesting persons to whom goods have been sent hy the owner, to deliver them to the defendant; the latter having induced the owner so to send the goods, hy falsely representing that he was directed hy those to whom the goods were sent, to huy the same for them.</p> <p>And it is sufficient to alledge in the indictment, that the forgery was with intent to defraud the persons to whom the goods were sent, and to whom the order was directed.</p>

This cause came up on a writ of error to the New-York general sessions. The defendant Dord, and the other defendants, were indicted for obtaining by false pretenses the signature of James S. Holman to a written instrument. They demurred to the indictment and judgment was given for the people, in the court below. The indictment contained six counts, the two last of which were abandoned by the district attorney, on the argument.

This was an action commenced in October, 1848, before a justice of the peace of Wayne county. The plaintiff claimed to recover for the taking by the defendant, of necessary beds and bedding, one table and six chairs, being property exempt from execution by the revised Statutes, the plaintiff being a householder.

This action was commenced in a justice’s court in Monroe county, against the defendant, for property belonging to the plaintiff, taken and sold by virtue of a school warrant, issued by the defendants for the collection of taxes, under the free school law of 1849. The defendants justified, being trustees of the district. The jury found a verdict for the defendants.