Volume 9 — Johnson's New York Reports

THIS was an action on two policies of insurance on goods laden on board the ship Governor Gore, Waddle, master, on a voyage from Nerv-York to Tonningen; “ warranted American property, proof to be required here only; also, not to abandon, if captured, until six months after notice, unless previously condemned, nor if refused admittance or turned away, but may proceed to another near open port.” At the trial, the interest of the plaintiffs was admitted, and that the ship and…

THIS was an action on a policy of insurance on the ship Dean, dated the 22d July, 1809, from New-York to Bremen, with liberty to touch at Amsterdam, or Rotterdam,' or Tonningen, a market; if turned away, to have liberty to go to a near open • ^ ^ i port, where she may be admitted; valued at three thousand dollars, the sum insured, being one half the ship ; “ warranted American property; if captured or detained, the insured not to abandon, if the property is released m six…

THIS was an action on a policy of insurance on the freight of the same ship, valued at the sum insured, being 2,500 dollars, and for the same voyage, as stated in the last case; and a verdict was found for the plaintiff, subject to the opinion of the court, on a . . . c , 1 case containing the same tacts.

THIS was an action on a policy of insurance, dated the 27th of June, 1809, on goods, laden on board the same ship Dean, for the same voyage as m the last case, with liberty to touch at Tonningen, Amsterdam, or Rotterdam, for a market, if not blockaded, The insurance was declared to be against “ the dangers of the seas only; and in case of capture or detention, the risk to continue during and after such capture or detention.” The loss was dedared to be by the perils of the…

THIS was an action on a policy of insurance on the carpo of a . O the ship Concord, at and from Guadaloupe to New-York.

THIS was an action on a policy of insurance, on the schoonel Maria, from Charleston, S. C. to New- York, on account of the plaintiffs, and M. & A. Clark, the latter being also master of the vessel. The cause was tried at the New-York sittings, in June, 1811, before Mr. Justice Thompson; and a verdict taken for the plaintiffs, subject to the opinion of the court, on the following case.

<p>An agree~ ment, for the purchase o~ land,does not, of itself, aSnOunt to a license to the party agree~ ing to purchase, to enter on the land;aricl a1i.~ cense to enter does not imply a peJmis~ sion to cut and consume the timber. And where a person, after a perot agree~ ment for the purchase of hod, entered. and cut timber, and the agreement was after-wards rescinded by him; it was held that he was liable as a trespasser.</p>

THIS was an action for a libel, published in the Orange County Gazelle.

THIS was an action of covenant, on a bond conditioned for filó performance of an award. The cause was tried at the Orange circuit in September, 1811.

THIS was an action of ejectment The cause was tried at the Orange circuit, in September, 1811. At the trial of the cause the title of the lessor of the plaintiff was admitted.

THIS was an action for a libel. The declaration stated that the plaintiff was a good and faithful citizen of the United States, and of good fame, &c. and pursued the occupation and employment of editor of a certain newspaper printed and published in the city of New-York, called the “ New-York Evening Post,” by which he acquired great gains and emoluments, &c. Nevertheless, the defendant well knowing the premises, but contriving and maliciously intending to injure and…

THIS was an action of ejectment, to recover the possession of lot No. 75. in the township of Junius, in the county of Seneca. The cause was tried at the Seneca circuit, in June, 1811, before Ml’. Justice xates. The lot was conveyed, by letters patent, the 29th of January, 1791, to John Wilcox, who executed a deed for his military lot to Rufus Lathrop, one of the lessors, in 1794.

THIS cause came before the court, by a writ of error, from the mayor’s court of the city of New-York. Tompkins and Dunham, the defendants in error, brought an action of trespass quare clausum fregil, against Stuyvesant. The defendant pleaded not guilty.

THIS was an action of assumpsit, brought on a note or due bill, . in the following words: Due Henry Meghan, one hundred and seventy dollars, value received. • Albany, October 29, 1810. John Mills.” ' At the trial, the defendant gave in evidence a receipt, as fob-lows : c .

<p>An execusued 'by "a justice of the thirty’days afraentTaJuhe same was levied on the goods of the and the conom-itj fortlieir forthcoming, nt a certain day; and, affore thíexpTty^dáyíf ^nd before the day fixed by the constable, a waf regularly issued and served on the justice, it was tórar¿atídoes as a superset (leas or stay of where the execution is levied before ofsuch°certzT mri.</p>

THIS was an action of trespass vi et armis, for taking the plaintiff's negro man slave out of the plaintiff's possession, and carrying him away. The declaration alleged, that the defendant, on the 31st of July, 1810, with force and arms, at a place called Rutland, to wit, at Albany, in the county of Albany, seized, took, and carried away, a certain negro man slave, called Harry, the property of the plaintiff, of the value of 300 dollars, &c. The defendant pleaded, 1.

THE defendant was indicted, at the general sessions of the peace, in the county of Cayuga, under the act (sess. 24. c. 58.) concerning crimes, &c. for aiding and assisting one Abigail Tompkins, then in custody on a charge of felony, to escape.

THIS was an action brought against the executors of Joseph Gasherie, one of the loan officers of Ulster county, for retaining and converting to his own use, divers sums of money, which he had received as loan officer, while in office.

THE defendant was brought up by an attachment issued against him, for not bringing in the body of David Richardson, at the suit of Rufus Backus, pursuant to a rule of the court for that purpose. I* appeared that the capias ad respondendum was returned by the defendant endorsed cepi corpus, at the August term, 1801, Three persons became special bail for the defendant in that suit, of which notice was given to the plaintiff’s attorney.

IN error, on certiorari, from a justice's court. The return in the first cause, stated that the parties voluntarily appeared before the justice, and Westbrook, the defendant in error, declared against Hornbeck, the plaintiff in error, in an action of trespass qvare clausumfregit; and for cutting wood, &c. the 1st of April, 1810, on a certain tract of land, which Jacob De Wilt and others, trustees of the town of Rochester, by virtue of the patent to them, by deed, on the 6th…

<p>Under the 4th section of the act (sess. 31. c. 204.) "for the recovery of debts to the value of 25 dollars,"a justice cannot issue a warrant against a freeholder or person having a family, on the oath of the plaintiff; but the proof of the defendant's being a~ bout to depart, or of the danger of losing the debt, must be by other and legat evi dence</p>

IN error, on certiorari, from the justice's court in the city of New-York.

<p>A MOTION was made, on the part of the plaintiff, to set aside the nonsuit granted at the trial of this cause, and for a new trial.</p> <p>The affidavit of Horton was read in support of the motion, that one of the lessors, and four others, of whom the defendant was one, purchased a lot of land of T. Golden, which was surveyed and subdivided into five lots. A deed was given by Golden to the lessor for the whole lot, who conveyed to the others the subdivided lots. The defendant took possession of his lot, and moved his fence, so as to encroach on the lot of the lessor. At the trial, the defendant denied the title of Colden, and the plaintiff, not being prepared to prove it, was nonsuited. It was further stated, that the lessor not having any idea of any other question to be made, at the trial, than the right of the defendant to move the fence, was surprised by the defence which was set up.</p>

A MOTION was made, on the part of the defendant, to vacate the judgment entered in this cause, at the last August term. The judgment was given on the return to a certiorari, from a justice's court, which stated, that the plaintiff below claimed of the defendant 250 pounds of butter.

A MOTION was made, by the defendant, to set aside a judgment on a scire facias, and all subsequent proceedings, for irregularity. , . The original judgment was docketed the 31st of December, .1805, and the defendant’s attorney could find no evidence of the proceedings on scire facias to revive the judgment, except the docket of the judgment on scire facias on the 31st of August, 1811.

I. H. TIFFANY, in behalf of a creditor, movedlo set aside ^ iu¿¡n.ment which had been entered up in this cause, by war-u o *■ * rant of attorney, on the ground of fraud. It appeared that the plaintiff, who ivas the son of the defendant, was an infant when the bond and warrant of attorney were given to him, and had always ]ive¿ on the farm with his father; and that an execution had been issued on the judgment, and the farm advertised for sale.

<p>Where a bail bond in a court of common pleas and the bail reside out of the county, an action, may be maintained by the assignee of such bond m this court, who will grant relief to the bail on the same terms as if the bond had been taken in this court. The bail is bound to pay common pleas costs only. Bail to the sheriff as well as special bail, will always be relieved on the return of the Writ against them, upon the usual terms.</p>

<p>Where no vwnue is laid in the body of the deelaration, the venue in the margin issuf.~ f1eicnt~</p>

IN error, from the court of common pleas of Washington cornil ty, The plaintiff brought an action of debt against the defendant, in the court below, for tjie escape of one D. Powers, who was taken in execution, at the spit of the plaintiff.

E. WILLIAMS, for the plaintiff, moved for a rule to authorize the lessor of the plaintiff to make a survey of the farms of the defendants, comprising land included in a lease from the ancestors of the lessors, to the ancestor of the defendants.

THIS was an action of debt. The declaration contained two counts; one general, for the escape of one Edward Brockway, a prisoner in execution at the suit of the plaintiffs, from the custody of the defendant, sheriff of the county of Cayuga; and the other speeial, stating the execution, &c. and the giving bail for the liberties of the gaol, and the escape from thence.

The material facts in the THIS was an action of ejectment. The material facts in the case are as folows.

THIS was an action of assumpsit. Besides the usual money counts, the declaration contained two special counts; 1.

THIS was all action of ejectment for lands in Plattsburgh. A patent dated 26th October, 1784, was granted by the people to Z. Plait, for 31,360 acres of land, in which there was a reservation of 960 acres; 400 acres for the use of the gospel, and 460 acres for the use of schools.

THIS was an action of ejectment for land, in Scaghticoke, being part of lot No. 40. in the Hosick patent. The cause was tried at the Rensselaer circuit, in September, 1809, before Mr. Justice Van Ness. The following are the material facts in the case. Bleecker's map of partition, and field book of the survey of the Hosick patent, made in 1754, were produced at the trial. The plaintiff proved title to lot No. 40. in that patent.

THIS was an action of ejectment, brought to recover the one eighth part of a farm in Canaan, in the county of Columbia. The cause was tried, in December, 1811, before Mr. Justice Yates. A verdict was taken for the plaintiff subject to the opinion of the court, on the following case.

THIS was an action of covenant. The declaration stated, that by a deed made between the defendant and the plaintiff, dated 25th April, 1807, the defendant bargained, sold, assigned, transferred and set over to the plaintiff, his executors, &c. all the, parcels of land and premises contained and described in a certain lease or articles of agreement, made between Robert Livingston, of the one part, and J. Killmore, of the other part, dated the 1st May, 1790; to have and to…

THIS was an action of trespass quart clausum fregit, for breaking and entering the plaintiff’s close, cutting down, taking and carrying away, a quantity of wheat and rye in the sheaf, the property of the plaintiff The defendants pleaded the general jggue with notice, that they would give in evidence that the close mentioned m the declaration, at the time of the supposed trespass, was the proper close of Daniel L. Van Antwerp, and also, that the wheat and rye thereon growing,…

THIS was an action of assumpsit by the plaintiff, as sheriff, to recover his fees for serving writs of cap. ad. resp. issued by T. P, Grosvenor, attorney for the defendant. The plaintiff served several writs, in which the present defendant was plaintiff and Grosvenor the attorney.

THIS was an action of debt on an arbitration bond. The defendant, after craving oyer of the bond and condition, pleaded, 1. That the arbitrators, or any two of them, did not make an award between the parties, according to the form and effect of the condition of the bond. 2. That no award in writing was made, on or before the 1st day of July, 1809, after the date of the bond, being the day limited for making the award, by the condition.

THIS was an action of trespass and false imprisonment. The defendant pleaded, 1. Not guilty. 2. That on the 11th May, 1809, the parties submitted all differences to arbitrators, (see ante, 1 p6 li50) so that the award should be made on or before the 1st July, 1809. The time was enlarged to the 1st August, and, before that time, an award was made, to wit, on the 15th July.

THIS was an appeal, by Thomas Washburn, from an order 5>f two justices, made under and by virtue of the act, entitled “ An act for the relief of cities and towns from the maintenance of bastard children,” passed 6th March, 1801.

THIS was an action of assumpsit. The declaration contained several counts. The first was on a-promissory note, under statute> dated the 17th May, 1810, by which the defendant, ^°r va'ue received, promised to pay the plaintiff or bearer, forty-four dollars, by the first day of October next, with use, to be paid York state bills or specie. The other counts were for goods sold and delivered, money paid, money lent, &c. The defendant demurred to the declaration.

THIS was an action of assumpsit, on a promissory note, dated file 25th August, 1803, made by one J. B. for 56 dollars, payable to the defendant or his order, in one year after date, with interest, The declaration stated that the defendant, before the payment the money mentioned in the note, or any part thereof, and after the time appointed by the note, for the payment thereof had elapsed, to wit, on the 17th May, 1808, for value received, endorsed the note, and thereby…

THIS was an action of covenant. The plaintiff declared on an instrument alleged to have been executed by the defendant’s testator, dated 1st September, 1787, and by which the testator agreed to give the intestate, her heirs and assigns, the sum of 150 pounds, in lands, on or before the 1st January then next, if the same should be demanded; the plaintiff averred that the instrument was lost by accident. The defendant pleaded, 1. Non est factum; 2.

IN error, from the court of common pleas of Jefferson county. The plaintiff below, Cheevers, declared in assumpsit, for money paid, &c. money lent, &c. and money had and received, &c„ The defendant below pleaded non assumpsi. . .

THIS was an action of covenant, for the recovery of seven years’ rent, brought upon a durable lease, executed by the plaintiff to the defendant, on the first day of March, 1793, for a f land in Lansingburgh, in which lease the yearly rent of four pounds was reserved to be paid yearly and every year, tor ever thereafter ; and which rent the defendant, his executors, administrators and assigns, expressly covenanted by the lease, to pay to the plaintiff, his heirs and assigns,…

THIS was an action of ejectment. The cause was tried at the Greene circuit, in 1811, before .Mr. Justice Spencer. The plaintiff proved that Alary Limerick, one of the lessors, was the widow, and the other lessor, the infant daughter of Isaac Limerick, deceased, who owned the premises in question, at the time of his decease, and that the defendant took possession after his death.

PARKER, in behalf of the plaintiff moved to strike out of the defendant’s plea, in this cause, which was an action for a libel, all suc^ parts of the plea as were a recital of the declarations in the cause 0f Spencer v. Gould, and in Spencer v. Ward, in this court. r 7 x

IN error, on certiorari, from a justice’s court. M‘Vickar sued out an attachment before the justice, against Field, of Cocksackie, in the county of Greene, as a debtor concealed within the county, with intent to defraud his creditors, and to avoid process, &c. The attachment was regularly issued.

IN error, on certiorari, from a justice’s court. Qriffin sued Simpson before the justice, and declared for money had and received to his use, and for money lent. The defendant pleaded non assumpsit. The plaintiff proved, that he had been sued as endorser of a note drawn by the defendant, and had been obliged to pay, besides the amount of the note, 19 dolIars, costs of suit. The taxed bill was produced to the justice, who gave judgment for the plaintiff, for the amount.

IN error, on certiorari, from a justice’s court. Ball sued Bliss before the justice, in trespass quare clausum fregit, for breaking his close and taking away and converting to his own use a brindled cow. The defendant pleaded not guilty, and also that, under a writ of fieri facias issued out of the court of common pleas of Lewis county, at the suit of Nash against Morton, he, as deputy sheriff, took and sold the cow, as the property of Morion.

<p>IN error, on certiorari, from a justice’s court»</p> <p>Lockwood brought an action against Powers, before the justice, for that the dog of Powers had killed a calf belonging to the plaintiff. Issue was joined, and the cause was then adjourned, en the motion of the defendant, from the 2d to the 9th December, and a jury was summoned at the request of the plaintiff. After the parties had appeared on the return of the venire, the defendant’s attorney moved for an adjournment, on the ground of the absence of Jonathan Howard and another material witness, and offered to make the requisite oath and give the security. This application iras made after some dispute about the right of the plaintiff to appear by attorney, and after the defendant had said that he wanted one Parker, as a witness, who soon after appeared. The motion was denied by the justice. Evidence was then given, on the part of the plaintiff. The jury found a verdict for the plaintiff, on which the justice gave judgment.</p>

IN error, on certiorari, from a justice’s court. Tanner brought an action of trover against MAnstry for a chest of tools. The cause was tried by a jury. In the autumn of J J J 1807, the chest of tools, winch were the property ot one Andross, were sold at public auction, under an execution, and purchased by one Bartholomew, who, soon afterwards, sold them to Tanner for nine dollars, which was less than their value.

IN error, on certiorari, from a justice’s court. » Carleton brought an action against Willoughby, for work and la-hour in putting up a fence, being the division fence between their lands, and the proportion belonging to Willoughby, which he had neglected to mend, for more than a month after request. Plea, the ° , * general issue, and set-off.

IN error, on certiorari, from the justices’ court of the city of New-York. Ames brought an action of assumpsit in the court below, against Ward, as master of the ship Margaret, to recover his wages as a seaman on board of the said ship, on a voyage from New-York to Cadis, and back to New-York. The defendant pleaded non assumpsit, and that the plaintiff had forfeited his wages by desertion.

<p>IN error, on certiorari, from a justice’s court,</p> <p>Shed brought an action against James and Adolphus Sprague, a promissory note, for 10 dollars, dated the 28th September, 1810. The suit was by warrant, which was returned, “ cepi corpus, and the plaintiff notified.” The justice stated that he understood by this return of the constable, that he had the defendants in custody. The plaintiff did not appear, nor any person in Jjjg behalf. The note was delivered to the justice by some person whose name was not mentioned. On the note was endorsed a request by the defendants to enter judgment against them, of the defendants, Adolphus, appeared and objected to having judgment entered, and demanded a trial; but the justice refused, considenng him precluded by the endorsement on the note, and gave judgment against both the defendants, being, its he said, satisfied by comparing the hand-writing in the note, and the endorsement, that they were the same.</p>

IN error, on certiorari, from a justice’s court. Toll brought an action on the case, against Wailing, for medicine and attendance, as a physician. The defendant denied the account, and pleaded the general issue.

<p>In an action brought before a justice of the peace, to recover a a''suit Tifthe mon'p?eas,°the only; elenco ment, was that of the opposite said^that the plaintiff acted no ott/mn(»Trfnn th<fdefendant, Th^was'held not to be sufficient evidence of the plain-been employed by the defendant.</p> <p>Though it may not be requisiteioprove employmeutof an attorney, jet some recognition of party, in the progress of the suit, is necessary to be shown, to make him for the costs.</p>

IN error, on certiorari, from a justice’s court. Jarvis brought an action of trespass against Carter, for cutting and carrying away wheat sown by him upon the land of Carter, upon shares. The declaration alleged, that the plaintiff by Halmj Rodgers, his assignee, complained, &c. and it concluded to the damage of the said Halsey, assignee as aforesaid, of 25 dollars. At the trial, in September, 1809, Halsey appeared for Jarvis, and was objected to by the defendant.

IN error, on Certiorari, from a justice’s court. Lane brought an action of debt against Wells, before the just for two penalties of 12 dollars and 50 cents each, under the concerning slaves, for harbouring the slave of the plaintiff, named Betty, on the 8th and 9th days of November. The plaintiff, who was a free black, proved that he purchased Betty and ^er mother, about 24 years ago, and that he married the mother when Betty was about a year old.

' IN error, on certiorari, from a justice’s court. Taylor brought an action of debt against Van Slyck, a constable, for the escape of Josias Minkler, jun. in his custody, under an execution at the suit of Taylor, issued by á justice. The . execution against Minkler was not produced, nor any reason given why it was not. Parol proof was given, that the defendant jje]ow jja(j sucjj an execution, on which he held Minkler in his custody. The amount of the execution was not stated.

AN indictment for a forcible entry and detainer was found the 19th June, 1810, against the defendant and John Runkel and John Bicker, since deceased, under the 3d section of the “ Act to prevent forcible entries and detainers.” (Sess. 11. c. 6. See 8 Johns. Rep. 464—466.) The indictment was tried at the Newv-York sittings, in December, 1811, before Mr. Justice Van Ness.

IN error, on certiorari, from a justice’s court. The error assigned in this cause was, that Bliss, the defendant below, was an infant, under the age of 21 years, and appeared in person, and not by guardian. The defendant in error pleaded in nullo est erratum.

THE defendant was charged in execution, at the suit of the plaintiff, for 635 dollars and 97 cents, damages and costs, recovered in an action for a libel. He afterwards obtained a discharge under the insolvent act, and he was now brought up on a habeas corpus, in order to be discharged from his imprisonment in this Suit also.

THIS was an action of ejectment, brought to recover part of lot No. 72., in the township of Aurelius, in the county of Cayuga. The cause was tried at the Cayuga circuit, before Mr. Justice Yates, the 11th of June, 1811.

THIS was an action of ejectment, and was tried at the last cireuit, in Schoharie county, before Mr. Justice Spencer. The plaintiff claimed the north part of lot No. 29. in a patent granted the 11th October, 1765, to Frederick Young and 19 others, for 20,000 acres of land, in the town of Sharon. At the trial, the lessors gave in evidence, 1. An exemplification of the patent; 2.

THIS was an action of assumpsit. The cause was tried before the Chief Justice, at the New-York sittings, in December, 1810. e The plaintiff read in evidence the following writing: jSíewYork, 10th December, 1807, Anthony Dey having drawn in favour of George W. Murray, four bills of exchange, as the attorney for Richard S. Hacklew, at one hundred and twenty days alter sight, tor one hundred and twelve pounds ten shillings sterling, on Thomas Mullet 8c Co. of London.

THIS was an action of ejectment, to recover a house and lot of ground, in the 5th ward of the city of Nerv-York. (See S. C. vol. 6. p. 197.) e The cause was tried before the Chief Justice, at the Nerv-York sittings, in December, 1810.

THIS was an action for money bad and received to the use plaintiffs.

<p>THIS was an action on a policy of insurance on the schooner Maria, “ at and from Port Plata, St. Domingo, to New-York.” The plaintiffs claimed for a total loss, which was averred, i,¡ the first count of the plaintiffs’ declaration, to have happened as follows: “ While the said vessel was at Port Plata aforesaid, to . ’ wit, at Isabella, within the district of Port Plata, she was, by and through the violence of the winds, &c. forced and cast upon rocks, an bars there, and was, then and there, broken, shattered, bilged and totally lost..” In the second count, the plaintiffs averred, that while the vessel was at Port Plata, she was, by the force of winds, &c- totally lost.</p> <p>The cause was tried at the New-York sittings, before Mr. Justice Thompson, the 15th June, 1811.</p> <p>Thirty days previous to the commencement or the suit, the agent of the defendant, and the other underwriters on the same received from the plaintiffs the protest of the captain of the vessel, stating the loss; but the register of the vessel was not then produced, nor until it was given in evidence at the trial, by which it appeared that she belonged to Vos, one of the plaintiffs. When the protest was shown to the underwriters, they made no objection to the sufficiency of the preliminary proof; but refused to pay for a total loss, on the ground of a deviation.</p> <p>The vessel sailed from Port Plata, on the. 30th November, 1809, to go to Susua, to procure mahogany there. Her papers were left at the marine office at Port Plata, and a per-was granted her to go to Susua, for her cargo, and it was necessary for her to return to Port Plata, in order to obtain a clearance for New-York. After leaving Port Plata, the vessel was carried, by adverse winds and currents, 12 leagues to the westward of that place; and arrived at Isabella, on the 6th December, and there took in additional ballast, and put to sea, in order to reach Susua, but was again driven back to Isabella on the 8th Decernher. She again sailed for Susua, but was again forced back, and put into Isabella, on the 10th December, where she was shipwrecked in a violent storm. The harbour of Susua and port of Isabella, are both in the district of Port Plata.</p> <p>The district of Port Plata extends from the river St. Juan near the Old Cape, to the river Massaue near Fort Dauphin. The whole district is called Port Plata. The custom-house or marine office, for the whole district, is at Port Plata, where all the inhabitants of the district do duty at the fort. The chief produce of the district is mahogany and fustic, and these woods are procured along the coast.</p> <p>Cargoes are never taken on board at Port Plata, but vessels always enter at that port and proceed to Susua, which is about 4 leagues east, or along the coast, to procure their cargoes, and then return to Port Plata to pay the duties, and obtain a clearance. That port is a good harbour, and has anchorage ground. Susua and Isabella are both open roads or bays. Isabella is about 18 miles west of Port Plata. Susui is about 18 miles east of that place; and when the wind is from the northwest or north, it is difficult to get out to sea, and there is great danger of being driven on shore. The vessel had made about half her passage to Susua, when she was driven to leeward, by an easterly wind, and forced into port Isabella.</p> <p>Two sea captains, one of whom had been above 18 months at Port Plata, and both were acquainted with the district and coast, testified, that the district of Port Plata is so called, because there is no other port of entry or custom-house within it. Samana is the next port of entry, which has, in like manner, a district of country attached to it. The city of St. Domingo, which is another port of entry, forms another district; and these are the only ports of entry in the Spanish part of the island, which is divided into districts, in reference to the custom-house duties; each being a revenue district, and taking its name from the port of entry within it. The witnesses did not consider a vessel arriving at Susua or Isabella, as arriving at Port Plata, to which place she must actually go; and if desirous to proceed to any other place within the district, she must obtain a permit from the customhouse for that purpose.</p> <p>Several underwriters and officers of, different insurance companies ™ the city of Nem-York, testified, that they had frequently insured vessels engaged in trade to the city of St. Domingo, and if the insured wished to load on the coast, it was the practice to insert express permission in the policies for that purpose; and that for granting such a permission, an additional premium was demanded.</p> <p>It appeared also, that it was very rarely, if ever, that a cargo of woods could be obtained at Port Plata; but it ivas the course of the trade, to go along the coast to obtain cargoes.</p> <p>A verdict was found for the plaintiffs, subject to the opinion of the court, on a case containing the above facts.</p>

THIS was an action of trespass de bonis asportatis, for seizing and carrying away a coachee and 3 horses, the property of the , . ./V, J?, X . , , , , plaintiff. The claim as to the horses was, however, atterwards, abandóned. The cause was tried at the New-York sittings, in November, 1811, before Mr. Justice Van Ness.

THIS was an action of assumpsit The cause was tried at ¿he Netv-Yorlc sittings, the 5th December, 1811, before Mr. Justice Van Ness. At the trial, a bill of exceptions was tendered to the opinion of the judge. The following facts were stated in the bill.

THIS was an action on the case, brought to recover back the passage money, paid by the plaintiff to the defendant, for a passage in the schooner TJrania, owned by Messrs. Minturn 8c Champlin, from Amsterdam to Batavia. The 'cause was tried before Mr. Justice Thompson, at the Nerv-York sittings, in May, 1811.

ANTHON, for the defendants, moved to set aside the award the arbitrators in this case, which had been submitted to arbitration; but without any rule or order of the court. He stated the ground of the application to be, that the arbitrators had mistaken the law; and he contended that this court had a right to interfere and set aside the award in such a case. He cited 2 Vesey, 18. 2 Bos. & Bull. 375. 2 Vern. 705. Burr. 1257. 3 East. 13. Lawrence, J. Barlow v. Todd, 3 Johns.

THIS was an action for a libel. The first count stated that the plaintiff was sworn, and examined as a witness, in a cause tried at the circuit, in Albany, in which this defendant was plain-till) and Harry Crosrvell defendant; that the plaintiff is a bookseller and stationer, in Albany, and has for a sign, a book lettered “ Bibleand that the defendant, maliciously intending, &c. on the 5th December, 1809, printed, &c. in “ The Albany Register,” a certain false, &c. libel, of…

THIS was an action of assumpsit. The suit was commenced by bill against the defendant, as one of the attorneys of the court, in the usual form.

THIS was an action of assumpsit, on a promissory note made by thethe court, without argument.

<p>In a qui tam action to vo« cover a petheXft^concern™J^ber of the -Afew-Torh society f01. the mi-^”^8^ &o. a 'competent witness, he being under gatimfto con. *"pga3e3° the suit, and h&viDff no in» terest m the al said that if shouidS"he remember of Lked^^gh-l wids^com Phe usually éases*nbut the ¡^und °to<!o so, and should only by his general practice principle.</p>

THIS was an action of assumpsit. The defendant pleaded another action brought by the plaintiffs against the defendant, for the same cause, in the court of common pleas of the county of Bristol, in the state of Massachusetts, and there pending in that court, &c. The plaintiffs demurred to this plea, and assigned causes of demurrer. The cause was submitted to the court, without argument.

THIS was an action of ejectment, for lands in Suffolk county. The cause was tried at the Suffolk circuit, in July, 1810, before Mr. Justice Yates.

THIS was an action of assumpsit, brought in the common pleas of Delaware. The action arose on matters of account between the parties. ^e cause, by rule of court, was referred to referees, who allowed t0 the plaintiff the amount of 141 dollars of his account, and to the defendant 124 dollars and 26 cents, leaving a balance of 15 dollars and 74 cents, for which the plaintiff obtained judgment.

<p>Where the overseers of the town of O. late in writhí erj^hesto-e of H. was un50%ears and abffity^o'get. ^bottom of which was do hereby "and edby^heover" by the executorsof H. to whom the slave belonged; and the certificate ivas recorded i n theofiíee of the clerk of the town, it was held that this certificate, registered at the request of H., was conclusive evidence, to charge the town with the future maintenance of such slave, as a pauper.</p> <p>Whether ttie slave was duly manumitted or not, as respected his former owner] was a question between the slave and such former owner, with which the town had no concern ; ’but it seems that this was a manumission sufficient to conclude the owner.</p>

IN ERROR, on certiorari, from the justices’ court of the city and county of New-York. Kelloggs the defendant m error, b,rouget an action oí assumpsit against Murray, Lyman 8r Ogden, the plaintiffs in error, in the court below, for wages due to him as a seaman on board the ship Rolla, owned by the plaintiffs in error, on a voyage from New York to Archangel, in Russia. The plaintiff below also decíared for a breach of the shipping articles.

<p>IN ERROR, on certiorari, from a justice’s court. Sarah Fur-man, the plaintiff below, brought an action of trespass against Beach and Saunders, before the justice, for taking and carrying away a cow, belonging to the plaintiff The defendants below pleaded not guilty; and Beach pleaded also a justification, under the act to regulate highways, (sess. 24. c. 186.) passed 8th April, 1806.</p> <p>At the trial, it appeared that Saunders, one of the defendants, was a constable of the town of Unadilla, and a warrant was issued by the commissioners of the highways of the town, directed to William Merithew, the overseer of the highways, commanding him to cause the number of days affixed to the respective names of the persons annexed to the warrant, to be worked on the public highway in his district, according to law; and on which list of names annexed to the warrant, the plaintiff was assessed to work 8 days and a half. Saunders also produced a complaint in writing, directed to A. I. Beach, one of the defendants, who was one of the justices of the peace of the county of Otsego, by S. Merithew, overseer of the highways, stating that “ he had warned Sm'ah Furman to work on the highways four days and a half, which she had neglected and refused to do.” Saunders also gave in evidence a warrant issued by A. I. Beach, a justice of the peace, under bis hand and Real, directed to any constable of the county, reciting the, above-mentioned complaint, and commanding the constable to levy and make of the goods and chattels of S. Furman, four dollars and a half, being the penalty given by the act, and also 25 cents costs, &c. The return to the warrant stated that Saunders, the constable, bad, by virtue thereof, levied on the cow of the said S. Furman, and had made thereof the sum mentioned, &c. There was no evidence against Beach the other defendant.</p> <p>It appeared that Sarah Furman was a freeholder in the town of Unadilla. The justice gave judgment for the plaintiff below, for 15 dollars and the costs.</p>

IN ERROR, on certiorari, from a justice’s court. Ward and Aylesworth brought an action against White, before the' justice, The plaintiffs, in their declaration, stated, that on or about the 10th September, 1810, White alleged he had lost a bridle, and accused Aylesworth of taking it, and threatened to put him to trouble and costs, unless he would pay him the sum of twelve dollars in cash, or give him a note for the amount, with sufficient surety; upon which Aylesworth,…

IN ERROR, on certiorari, from a justice’s court. Leonard sued Wilkins, before the justice, for shooting the dog of the plaintiff. The defendant pleaded not guilty, and the cause was tried before a jury. It was proved that a dog, of the pointer breed, was possessed by the plaintiff, and that he had no other dog. The defendant said to one of the witnesses that he had shot the plaintiff’s dog.

IjXj ERROR, from the court of common pleas, or mayor s court, of Albany. The plaintiff in error, as assignee of the sheriff of Albany, brought an action of debt, in the court below, against the defendants, on a bail bond, executed by Barry, who had been taken into custody of the sheriff, on a ca. sa., and by Harbeclc and Hewson, his sureties, for the gaol liberties granted to Barry, by flje sheriff, pursuant to the act.

APPLICATION was made to the court for the allowance of a writ of habeas corpus, directed to John Christie, a lieutenant-colonel in the army of the United States, to bring up the body of Jeremiah Ferguson.

IN ERROR, on certiorari, from a justice’s court. Johnson brought an action of trover against Burnell, before the justice, for certain articles of household furniture.

IN ERROR, on certiorari, from a justice’s court. Pulver sued Loomis before the justice, for money had and received, ike, Pulver offered to prove that, m 1808, he gave Loomis two promissory notes, payable on demand, which he transferred to S'.

APPLICATION was made by Samuel Watkins, the son and heir of Samuel Watkins, deceased, pursuant to the 10th section of the act of the 7th April, 1806, (sess. 29. c. 168.) for relief against the assignment of dower of Martha Watkins, the widow of S. Watkins, deceased.

H. BLEECKER, for the plaintiff in error, moved that the rule obtained at the last term, to change the venue, in this cause, from county of Dutchess to the county of Washington, be vacated, The action was tr.over for a horse, chair and harness.

<p>A plea in tar, as of a discharge unentacq pleadcmtihnmnce1 need not be verified by affidavit, unless the'drenit^r then 8if pro” able cause of shown to the judge, who may receiveit without oath, or not, in his discretion.</p> <p>pleads plead-without an affidavit, it cannot he treated as a nullity, ve tmu?taeiit1 or apply tl the court to liavG it Rpfc aside.</p>

GOLD, in behalf of the plaintiff moved for leave to enter a dig-continuance in this cause.

MOTIONS were, made in behalf of the defendant, for relief against the judgments entered up by confession, on bonds and warrants of attorney in the above causes, and several others against the same defendant. The affidavits were numerous, and the grounds of relief suggested, various and special.

THIS was an action of assault and battery, and for false imprisonment, brought against the defendant, as a justice of the peace, for an act done by him, in that capacity. The defendant pleaded, 1. Not guilty; 2. A special justification.

<p>In an action of debt on a ^eirecordmi which issue 9* slptemthe cause mí ticed for trial October term foiiowtvied. On the 9th December, fendantpieadedpuisaarrcm' continuance, underlie m-d^dtheelth September, piea’was verivitf attorney, on the 1st of January, 1812 the , 28th December 1811 served’ a no-by record^* the agent of the defendant’s attorney, residing 150 miles from.®. bany, and in January terra. obtained judgJuly following faxfo“ costs to the defendant's attorney, which was the first notice he had of the plaintiff’s attorney having proceeded on the issue.</p> <p>It was held that the defendant was not too late, in August term, to apply to set aside the judgment; that the plaintiff’s attorney had no right to treat the plea puis darrein continuance as a nullity; but should have demurred to, or taken issue on, the plea, or have applied to the court to set it aside, as not pleaded in season. Though more than one continuance has intervened, the court will allow a defendant to plead his discharge nunc pro tunc, oh payment of costs.</p>

A MOTION was made that the judgment, default and writ of possession in this cause be set aside, for irregularity, &c. and that a writ of restitution issue, and that Robert R. Livingston be made defendant instead of the present defendant.

INGALLS, for the defendants, moved to change the venue in this cause, which was a scire facias on a judgment, from Albany to Washington county, where the venue in the original action was

A MOTION was made in behalf of the defendant, for judgment as in case °f nonsuit, for not proceeding to trial in this cause, at the last circuit in Rensselaer county.

THESE were three separate actions, on several promissory notes, brought by the endorsee against the maker. The notes dated on different days, for different sums, and payable at different times, to the same person, who endorsed them to the plaintiff. The notes were all due when the suits were commenced; and the writs were all issued at the same time, and served at the same time, on the defendant. .

A MOTION was made to set aside the ca. sa. issued to the sheriff of New-York in this cause, and all subsequent proceedings, * . , and that the sheriff pay the amount of the money levied on the ca. sa. to the defendant.

THIS was an action of slander brought against the defendant, for saying that the plaintiff had passed counterfeit bank notes, There were several counts in the declaration. The defendant pleaded not guilty, with notice of a justification. The cause was tried at the Delaware circuit, in June, 1812, before Mr. Justice Van Ness.

<p>FOOT, for the defendant, moved for judgment as in case of nonsuit, for not bringing the cause to trial, &c.</p> <p>The cause had been once tried, and a verdict found for the plaintiff, which was set aside by the court, at the last term, and a * ■' v new trial granted. The plaintiff neglected to bring the cause to trial at the last circuit. It appeared that no copy or notice of the rule to set aside the verdict and for a new trial, had been served on the plaintiff’s attorney; and</p>

THIS was an action of ejectment, brought to recover lands in £he town of Gallatin, in the county of Columbia. The cause was tried at the Columbia circuit, in December, 18.11, before Mr. Justice Yates. The defendants' claimed the lands only which vsere formerly in possession of William Simmon, and disclaimed as to the residue of the land in their possession.

<p>THIS Was an action of ejectment, for a certain piece of land called The Island, in the town of Kinderhook, in the county of Columbia. The cause was tried before Mr. Justice Yates, at the Columbia circuit, in November, 3811. ’</p> <p>The plaintiff proved that the premises in question formerly belonged to Johannis Van Deursen, the elder, who occupied them un® his death, in 1757. Robert, his eldest son, died, leaving six children, Peter, Stephen, Laurence, Cynthia, Mary, formerly the wife of John Vanbeuren, and Christiana, who married John Boyd, both of whom died, leaving four sons, Robert, William, John and ^amesi who, with Mary Vanbeuren, are the lessors of the plain-tiff. The-three sons of Johannis Van Deursen, the elder, to wit, Robert, Laurence, and John, succeeded to the possession of their father’s estate, of which The Island is a part, and which John afterwards occupied and improved alone.</p> <p>The defendant produced the will of Johannis Van Deursen, dated the 11th December, 1757, by which he devised his real estate to his three sons, Robert, Laurence, and John, an undivided third part to each and to their heirs and assigns for ever. After his déath, in 1757, his sons lived together m one house. After John married, the sons lived in separate rooms. John continued *° five in the east room for several years, and then moved to the . place where the defendant now lives, and continued to work on the old farm as usual. The sons built a mill after their father’s death, which they attended alternately; but, after John married, they possessed the rest of the farm separately. John possessed the premises on the east side of the road, and Robert on the west side of the road.</p> <p>Cornelius Van Alen, a witness for the plaintiff, testified that he knew the premises forty years ago, when they were possessed by the three brothers. The field west of the road was called the back land. After John married, he possessed separately. Lay-mice and Robert did not divide, but took two thirds, and John one third. After the death of Robert, when all his children were present, one \ of them said to the witness, that they had settled with their uncle John and divided, and that John took Ths Island, and Robert and Laurence the land on the opposite side of the road, and over the creek; John had the south end of the bushland, and the others the north end. Eykebush land was also divided, but how the witness could not recollect. This conversation took place in the presence of Stephen and Laurence, the sons of Robert, who claimed the share of their uncle Laurence. Elizabeth Van TJeursen, the widow of John, the brother of Robert and Laurence, testified, that before her marriage with John, which took place thirty years ago, the brothers lived together in the same house, and after her marriage, For about five years, John had the management of the farm, and Robert of the mills. The division was made in the lifetime of Robert and Laurence, and before John left the house. John was to have one third; and the land on the east side of the creek was laid down as one third of the farm, and called the New Bowery. On the west the whole was laid down as two thirds. John took one part, and Robert and Laurence the other parts. Robert, being the eldest, had his election, and he chose the north end of the bush land and John the south. Robert took the place where Mr. Vanbeuren lives; and John on the opposite of the road, called Collie’s Crawl. Robert took the back land, and John The Island, being the premises in question. Robert took the north end of the Kinderhook fly, and John the south; and the same division was made of Eykebush. The brothers, before this partition, divided the grain. This partition took place in May, 1785, or 1786, and John moved to the place where the defendant now lives. John occupied the. lands allotted to him by the division, separately, until his death. The pld homestead was not divided. On her cross examination, the witness testified, that this division took place between the brothers while standing in the door yard. They first made offers to each other. Robert asked John if he would take the east side of the creek, and John returned the question; but neither agreed to accept it. They agreed that the east side of the creek should be set off as one third of the Kinderhook estate, and that the lands on the west side should be divided into two parts, of which John should have one. Laurence then, lived with Robert John and Laurence came into the house, immediately after the division, and John stated the division, in the hearing of Laurence, who assented t° it, as above mentioned. Laurence said, “ Now we know where our iand is, and we shall hereafter work separately.” Robert and Laurence took possession according to the division, and always lived separately from John. The division was agreed to in the door yard ; and the witness occasionally stopped at the door to hear the conversation.</p> <p>Other witnesses confirmed the testimony of this witness, as to the separate possessions of the brothers, as long as they could remember, for twenty-four years, or more.</p> <p>The defendant gave in evidence, an order of the judge of the court _of probate, authorizing the administrators to sell the real estate of John Van Deursen, and the deed made in pursuance thereof to the defendant, dated the 24th July, 1801.</p> <p>A deed was also produced in evidence from John and his wife, and the heirs of Robert and Laurence, to Daniel Staats and. Adam Van Alen, for the mills, in which John warranted for one third and the other grantees for two thirds.</p> <p>The plaintiff then offered to prove that Johannis Van Deursen the elder, was insane at the time of making his will; and that a year or two after the division spoken of by Elisabeth Van Deursen, Robert told John that he had no right under the will; and that Staa ts had made an application, long after the death oí Robert, for a division of the lands on the east side of the creek; and offered also to show by parol, that he claimed by deed from John Van Deursen ; but this evidence was objected to and overruled by the judge. ‘</p> <p>Cynthia Van Deursen was called as a witness for the plaintiff Her evidence was objected to, but admitted by the judge. She was the daughter of Robert, and remembered the trial at Claveradz, and that John called on her brothers and sisters soon after, and said he had been to Clávemele, and that he and Staat§ had tried to get the lands on the east side of the creek divided. He asked if they would take away the lands their father had given to them; that it had now been proved that the will was good for nothing, and void. He said nothing about any previous division, and asked if they would give him a conveyance, to which they agreed. This was a short time before John died, and at the time the deeds were executed. Whether Mrs. Boyd was then dead or not, the witness did not recollect. She was not then present. She died before her husband. On her cross examination, the witness said that John went into possession of The Island after his marriage. Before he moved, Robert and Laurence held together; John held possession separately, as stated by the other witnesses. Deeds were given to John according to the contract. Laurence died about twenty-five or twenty-six years ago, and from that time the possessions had been uninterrupted. The defendant purchased the back lot of the Boyds. He owned The Island and Collies' Cram.</p> <p>The plaintiff again offered to prove the insanity of Johannis Wan Deursen the elder, at the time of making the will, and to disprove the fact of acquiescence under it, to which the defendant’s counsel objected. The judge decided that the defendant must either abandon the will altogether, and rely upon the division, or he should admit the evidence to impeach the validity of the will The defendant’s counsel then declared that they should rely upon the division merely.</p> <p>The defendant produced two deeds, both dated the 18th March, 1797, one from John Van Deursen and wife to Cynthia Van Deursen and others; the other from Cynthia Van Deursen and others to John Van Deursen ; and it appeared that the defendant was counsel for the heirs of Roberí Van Deursen, on the hearing of Staats for a partition, and then produced, pursuant to a notice for that purpose, the deed from Cynthia Van Deursen and others, the heirs of Robert, to John, and which contained a covenant of warranty against all persons claiming under Robert or Laurence.</p> <p>The judge charged the jury, that the plaintiff had, in the first instance, made out a clear right of recovery. That the defendant having elected to rely on the parol partition between the brothers, and not to claim under the will, the jury were not to be influenced by the will, further than its existence ought to be evidence of th© probability of a division; that the only question for the jury to decide was, whether there had been a division made between the brothers; and if so, whether it was intended to be permanent, or whether for temporary purposes only; that if they believed that there had been no division made, or that it was for temporary purposes only, they ought to find for the plaintiff for two sixths of the whole premises; otherwise, for the defendant.</p> <p>The jury found a verdict for the plaintiff, for two sixths of the premises.</p> <p>A motion was made to set aside the verdict, and for a new trial</p>

THESE were actions on two policies of insurance on the brig William Tell, and her cargo, dated .6th December, 1807, “ at and from Nerv-York to St. Lucar.” On a former trial of this cause, a verdict was found for the plaintiffs, which was set aside, and a new trial granted, chiefly for the misdirection of the judge. (See 7 Johns. Rep. 38—57.) The cause was again tried, at the sittings in Nem-York, on the 21st December, 1811, before Mr. Justice Van Ness.

THIS was an action of debt. The declaration contained two counts. The first count stated a submission by the parties, by bond, to arbitrators$ and an award of 243 dollars and 68 cents, in favour of the plaintiffs, and a breach by reason of the non-payment of that sum by the defendants. The second count was for 56 dollars and 32 cents, on an insimul computassent. The cause was tried at the Albany circuit, in April, 1812, before Mr. Justice Spencer.

<p>IN error, from the Albany mayor’s court, or court of common v )leaS.</p> <p>_ , , . „ Byrnes brought an action of assumpsit against Croswell, in the court below. The declaration was oil a bill of exchange, dated ihe 22d of September, 1810, for 124 dollars and 16 cents, drawn by Henry Wiswell, directed to the defendant below, by the name of Henry Croswell, payable to Byrnes, or order, on demand; which was accepted by Croswell, payable ninety days from the date.</p> <p>The defendant below pleaded, 1. Non assumpsit; 2. Byrnes, in February term, 1811, sued the defendant in the may- or’s court of Albany, on the same bill, &c. and recovered judgment for 145 dollars and 25 cents, prout patet per recordum, &c.</p> <p>The plaintiff replied nul tiel record. There was a trial by record, and Croswell did not appear, nor produce the record, on which judgment was given for the plaintiff, Byrnes, on the second plea. On the first issue there was a trial by jury, and a verdict found for the plaintiff on which judgment was given by the court below.</p> <p>The bill of exceptions stated the pleadings and issues, and that the defendant, on the trial of the second issue, produced the record in support of the second plea, which record was set forth. It stated the declaration, in which the bill is described as drawn on Harry Croswell; that a judgment was entered by default, for want of a plea, for 145 dollars and 25 cents, damages and costs, and the judgment signed, and filed the 9th of March, 1811. It appeared further, that on the trial of the issue by record, after Croswell had produced the record above mentioned, the plaintiff in order to disprove it, produced the book of the minutes of the entries in the. court below, in which was entered a rule, in August term, 1811, by which the default, and all subsequent proceedings, Were ordered to be set aside, for irregularity, with costs, and that Croswell be discharged from custody on the ca. sa. issued on that judgment. The court below decided, that the entry of the rule destroyed the record of the judgment; and that there was, therefore, a failure of record. It also appeared that, on the trial of the first issue, the plaintiff produced the bill of exchange,1 which was directed to Mr. Henry Croswell; on which was written, « accepted, payable in 90 days. September 22, 1810. H. Cros» 7vell.” The defendant objected, that this was not the same bill as that described in the declaration, as drawn on Harry Croswell; .and that there was no such custom of merchants, as to a bill so accepted ; that the parties were not merchants, and that the acceptance was not suEcient to charge the defendant, and moved for a ¡nonsuit. The court below intimatingan opinion that the alleged variance was fatal, the plaintiff produced the original declaration, filed on the 11th of February, 1811, in which the bill is stated to be drawn on Henry Croswell. The defendant’s counsel insisted that the copy of the declaration served ought to govern, and not the original; but the court decided that the original declaration on file must govern, which was to be read Henry, and not Harry, and denied the motion for a nonsuit, on which a verdict was found for the plaintiff, under the direction of the court. To this opinion of the court a bill of exceptmis was tendered, which was signed and sealed by the recorder.(a)</p> <p>The errors assigned were, 1. That the court below decided that the rule discharged the record, whereas the record produced was sufficient to maintain the issue of mil tiel record, and the rule was inadmissible. s</p> <p>2. That the court ruled, as to the first issue, that the evidence was sufficient to entitle the plaintiff to recover.</p> <p>3. There was no plaint filed in the court below.</p> <p>4. That the record states that the defendant pleaded on the first Tuesday of August, 1811, whereas no plea was filed on that day.</p> <p>5. That no replication was filed, as stated on the record.</p> <p>6. That the record states that the issue was joined in September term, 1811, whereas the venire was issued long before.</p>

THIS was an action of covenant. The declaration stated that the defendant, on the 22d May, 1809, at, &c. by his certain writing, sealed, &c. covenanted and agreed, that the defendant, in and by the said writing, was held and firmly bound unto the plaintiff, his heirs, &c. in the full sum of 250 dollars, to be paid to the plaintiff, In manner following: 125 dollars on the 20th May then next ensuing the date of the said writing; and the farther sum of 125 Iars on the 20th May,…

THIS was an action of debt, on a bond given to the plaintiff, as sheriff of W'ishington county, dated 7th March, 1810; conditioned that Boyce, his heirs, &c. should, at all times, &c. save and keep harmless, and indemnify the plaintiff) sheriff &c. for touching and concerning the return and execution of all such processes> writs, and warrants, of what nature soever the same might kS; as should be directed to the sheriff of the county of Washing-Ion, and executed by the said…

THIS was an action of trespass, brought against the defendant f°r driving against the horse of the plaintiff, on the highway, so forcibly that the tongue of the defendants’ waggon pierced the breast of the plaintiff’s horse, in consequence of which he died. Ely, one of the defendants, pleaded not guilty, and that he was a mere passenger in the waggon. The other two defendants suffered judgment by default to be entered against them.

IN error, from the Ulster court of common pleas. Chaiterton brought an action of assumpsit against Yeomans, in the court below. The declaration was in the usual form, on a promissory note, for 50 dollars, dated the 20th of December, 1809, made by Yeomans, payable to Chaiterton the 15th of April ensuing, The defendant pleaded non assumpsit, with notice of special matter to be given in evidence at the trial.

<p>THIS was an action of ejectment, to recover the possession of part of lot No. 94. in the township of Ulysses. The cause was tried at the Seneca circuit, in June, 1812, before Mr. Justice rt Spencer.</p> <p>The plaintiff produced in evidence a patent to Hendrick Doux, one of the lessors, dated the 8th of July, 1790, for the whole of lot No. 94. also a deed for the same lot from Jeremiah Van Rensselaer to whom it had been awarded, to Robert M‘Dowel, dated (the 24th of April, 1792. M‘Dowel was dead, and the other lessors were his heirs at law.</p> <p>The defendant gave in evidence a deed, dated the 30th April, from M‘Dowel to John Smith, for 10 acres, part of the lot ^°" containing a reservation in the words following, to wit, “ Excepting and reserving to the said Robert M‘Dowel, his heirs and assigns, for ever, the right and privilege, without any fee or rewar(j 0f erecting and building a dam on the back of the creek, near or at the place where the east line of the above granted promises crosses said creek, along the west bank of,said creek, about 20 rods, or near where the mill-seat is, to occupy and possess the aforesajd premises, without any let, hindrance or molestation from the said party of the second part, his heirs or assigns, agreeably to the express condition contained in the foregoing clause and reser» vation.” The deed of John Smith to the defendant, for the said jq acres of land was also read in evidence. It was proved that the defendant was m possession of the whole 10 acres, and that the defendant’s mill-dam extended 24 links on the land of the lessors of the plaintiff. In 1811, Pelton, one of the lessors, requested the defendant to let him enter on the premises, and build a dam on the creek, according to the reservation in MiDowel,s deed to Smithy which was refused by the defendant. A verdict was taken for the plaintiff! subject to the opinion of the court. And the question was, whether, under the judgment, possession could be token' of the premises reserved in the deed from M‘Dowel to Smith, or only of the premises in the possession of the defendant, and not included in the 10 acres.</p>

THIS was an action bf debt. The declaration stated that Manro became special bail for Brown, in the Onondaga court of common pleas, in January term, 1809, in an action of covenant brought by the plaintiff) &c.; that a judgment was recovered by the plaintiff in that suit, which remained of record, in full force, &c. 5 that the defendant, Brown, on the 11th December, 1809, surrendered himself before a judge, in discharge of his bail, and was thereupon committed to the. custody…

THIS was an action of assumpsit. The declaration was on a promissory note given by the defendant to the plaintiff’s intestate, dated the 27th of December, 1803, for 362 dollars and 52 cents, payable on the 1st of January, 1805, with interest. The defendant pleaded non assumpsit, and the statute of limitations, with notice of a set-off, and that he would give in evidence at the trial, that in and by an act of the legislature entitled.

THIS was an action of covenant, by which the defendant and. severa* persons agreed with the plaintiffs, in consideration that the plaintiffs had “ agreed to permit each of them to float down the river Saranac, such quantity of timber as was .annexed to names respectively, in a certain schedule thereto annexed, and to put the same over the dam,” &c. that they would pay the plaintiffs at the rate of one dollar for every thousand feet of the timber annexed to their respective…

<p>A., B. & «7, agreed" torn», ime°f stages Utica¡ each pardearas to portion of'tiie ¡'umrh^iL^ own horses at his ownexPenTOandl,1¿c» but extra expenses for extra carriages were 7° “Se ^ athf' county of bv at their request, who found a balance due from I>. & $3. to E. £,; C. of 144 dollars, for Moneys received aiJUOuny. It appearing that D. & E. being jointly concerned in running their part of the line, and generally understood to be partners, E. was held to be jointly chargeable for the money receives by 1)., and for his acts; and that an action for money had and received would lie in the mayor'’' court in the city of Mbany, at the suit of B. St C. against D. 8c E. to recover the balance so stated to be due, by the agent employed to adjust the accounts, there being no. such nartnersiim exis«5nr’ between the five persons concerned, as would prevent such, a suit.</p>

THIS was an action of assumpsit for goods sold and delivered. The cause was tried at the Nm-York sittings, in June, 1812, before Mr. Chief Justice Kent. The sale and delivery of the goods were admitted.

THIS was an action of ejectment for 100 acres of land, in the town of Moreau, in the county of Saratoga. The facts in the case were as follows: James Rogers, in his lifetime, was seised in fee of the premises in question, and died so seised, the 3d No. 1 . vember, 1810, leaving two ot the lessors his heirs at law, by Ehsabeth Rogers, the other lessor.

THIS was an action for a libel, published by the defendant in Albany Register. Held: and was owner of, a large portion of the stock created by the said law, to wit, the sum of 5,000 dollars, and that he made a large profit thereon, to wit, the sum of 500 dollars, all which actings and doings of the plaintiff, &c. the defendant averred were hypocritical and deceptive, and contrary to his duty as one of the senators,…

THIS was an action of ejectment, for the recovery of 88 acres of land, part of lot. No. 4. in Schermerhorn’s patent. The cause was tried at the Washington circuit, in 1811. An exemplification of a patent to Ryer Schermerhorn and others, dated the 11th ■of May, 1762, was read in evidence.

<p>THIS was an action of covenant, brought on a covenant contained in a deed from the defendant to the testator, dated the 20th August, 1796, by which the defendant, for the consideration of 500 dollars, conveyed part of a lot of land, No. 63. in Aurelius, to testator, and covenanted that, at the date of the deed, he was lawfully seised in his own right, as of a good, sure, perfect, absolute and indefeasible estate of inheritance in fee-simple, in the premises &c. and had good right, &c. to convey, See. The plaintiffs in their declaration assigned breaches of the covenant. The defendant pleaded nonest factum. The cause was tried at the Cayuga circuit, in June, 1812, before Mr. Justice Spencer, when a verdiet was taken, by consent, for the plaintiffs, for 1,060 dollars damages, being the amount of the consideration money expressed in v 3. the deed, with interest; subject to a.deduction by the court, if they should be of opinion that the plaintiffs are not entitled to Merest for the whole time, it being admitted that the testator and his heirs occupied the premises from the date of the deed to this time, but without any,valid title from the defendant.</p> <p>The case was submitted to the court without argument.</p>

THIS was an action of covenant, on a covenant in a deed, exe- ' cuted by the defendants to the plaintiff, dated the 16th of July, 1808, for lot No. 9. in the township of Scipio, for the consideration of 200 dollars, in which were the usual covenants of seism and warranty. The defendant pleaded non est factum.

THIS was an action of assumpsit, brought on a promissory note given in the state of Connecticut. The plaintiff formerly resided in Albany; but, a short time before the note was given, removed to the state of Rhode Island, where he has since resided, . . ...

THIS was an action of debt on a recognisance of bail. In An-gust, 1809, the plaintiff, as endorsee of a promissory note made by E. B. Cornwell and Leonard Barton, payable to Thomas Stage, or order, brought'an action against Stage,- as the endorser, and, in November following, the defendant became special bail for Stage in that action. The plaintiff recovered judgment against Stage in ... 1,0 ! . , , .

THIS was an action of trespass on the case. The plaintiff’s demand was for fees and expenses in arresting, taking and carry-defendant from the town of Junius, in the county of.

THIS was an action of debt, for the escape of R. Usher, a prisoner, from the custody of the defendant, the late sheriff of Madison county, on an execution at the suit of the plaintiff. The cause was tried at the Madison circuit, in July, 1812, before Mr. Justice Spencer. The execution was produced with the return of the sheriff endorsed cepi corpus in custodia.

<p>A. agreed to convey landto B. on B.’s paying 100 dollars, at the time of taking possession, and the residue of thepurchase-money, at future periods, specified in the agreement. B. took possession on the \5Ü¡April¡ 1811, and at the same time paid the 100 dollars to A.</p> <p>In an action of ejectmentbrought on the demise of A. dated May, 1811, against B. to recover thepossession, it was held that 15. was entitled to a notice to quit, before bringing the suit.</p>

<p>A contract to sell and convey land, upon the performanee of to be performed by the purchaser at redoes not tarn a license to enter destroying the timber; nor does an agreement several ur" until all ef ecuted^the*” p“ehMe, and erby bond formanee ^of number on^the^ioT” imly a ££¡¿§(2 ^ fcflO purchasers, afmet and bond fe yaste? by cutrying "away The ™obstthai 0jn,be contract and a°penui"siou gur^to'enter" mean nani’ at, win, the lamMu’® ^““““bie manner as tenants at will might lawfuljy go</p>

THIS war~ an aclion of debt~ on a bond executed by Geo'ege Lc~ the ancestor~ in hiz lifetime, on the ~i~t May, 1790, for the ~um ~f 154 pound~ (3~35 dollars~) by wb~ch he bound himself, his heir~ &c~ in the ~iisua1 foii'ni~ to the plaintift conditioned to pay ~z Cu before th~ 1~t Oetob~ thee uox~ with interest at 6 rer ce~zt~ The defendiant~ after e~avh~ oye? of the cond~flon, p1e~ided thrit the plaint~~ w~ght not t~ h~ive an~ rnah~ta~n hks ~ct~on, &c, be~ ~au~e, after the…

THIS was an action brought against the defendant, and Thaddeus Loomis and Joseph Coats, on a bond dated the 16th of Aprils 1810> by which the defendants, “ by the name and description of' ^ac0^ Brewster, Thaddeus Loomis and Joseph Coats, trustees of the Baptist Society of the town of Richfield” acknowledged themselves bound to the plaintiff in the sum of 3,600 dollars, to be paid, conditioned, that if the defendants, as trustees of the Baptist Society of the town of…

<p>THIS was an action of covenant. The plaintiff declared for a breach of the covenant for farther assurance, contained in a deed, dated llíh March, 1811, by which the defendant sold and conveyed to the plaintiff a piece of land in Cocksackie, in the county - * i — of Greene; in which deed the defendant, “ for himself and his heirs, &c. covenanted and agreed with the plaintiff and his heirs, Sec. fkat defendant and his heirs, and all and every other person or persons whomsoever, lawfully or equitably deriving any estate, right, title, dower, jointure or interest, of, in or to the premises, by, from or under, or in trust for him, should and would, at any time or thereafter, upon the reasonable request of the plaintiff, and at the proper costs and charges, in the law, of the defendant, make, do and execute, all and every such further and other lawful and reasonable conveyances and assurances, in the law, for the better and more effectually vesting and confirming the premises, &c. as by the plaintiff, his heirs, &c. or his or their counsel learned in the law, should be reasonably devised, advised, or required.” And the plaintiff averred, that “Hannah, the wife of the defendant, wou|ri on the death of the defendant, have a right of dower in the so conveyed to the plaintiff; and that after making the deed, &c. the defendant was requested by the plaintiff to make and execute, or cause to be made and executed, at the proper costs an¿ charges of the defendant, in the law, a lawful and reasonable ° .11 1 1 v conveyance and assurance, m the law, to the plaintiff ot the said right of dower of his said wife, Sec. according to the true intent an(j meaning of the said covenant, &c. Yet the defendant hath not y et made, done and executed, or caused to be made, done and executed, at his proper costs and charges, in the law, a lawful and reasonable conveyance, in the law, of the said right of dower of the sa;¿ Hannah, his wife, contrary,” Sec.</p> <p>The defendant, after craving oyer of the deed, which contained, besides the covenant for further assurance, the usual covenants of seisin, for quiet enjoyment, and warranty, demurred to the de= claration, and the plaintiff joined in demurrer.</p> <p>The cause was submitted to the court without- argument</p>

THIS was an action of trespass. The declaration contained several counts; qume clausum fregit, de- bonis asportatis, &c. The cause was tried at the Courtlandt circuit, before the Chief Justice, in June, 1811.

<p>THIS was an action of dower. David Ferris, deceased, the former husband of Rachel, the wife of Hitchcock, was seised, in his lifetime, of lot No. 12. in Queensberry, in Washington county, being the land of which the demandant claimed dower. The defendant pleaded, 1. Ne unque seise que dower, &c. 2. Ne unque accouple, 8rc. 3. That David Ferris is in life, &c. 4. A conveyance by the demandant, of the premises in question in fee to Elijah Bartow; his heirs, &c.</p> <p>The cause was tried before Mr. Justice Yates, at the Washington circuit, the 17th June, 1812.</p> <p>It was proved that David Ferris lived on the land about 20 years ago ; that he afterwards went to the western country, and it was reported that he was drowned in the Ohio river; that Ferris and the demandant lived together, as man and wife, and that she has since married the plaintiff. It also appeared that the defendant was the tenant in possession of the premises, and claimed to hold under the heirs of David Ferris. The yearly value of the premises was proved.</p> <p>The defendant gave in evidence a release of the premises in question, before the commencement of the suit, duly executed by the demandant to Samuel Odell. The plaintiff’s counsel objected to the evidence, cm the ground that it ought to have been 1~leaded, or notice of it given with the general issue. The judge overruled the evidence, and the jury, under his direction, found a verdict for the plaintifTh.</p> <p>The defendant moved for a new trial; 1. Because there was not sufficient evidence of the seisin and death of Ferris ; 2. Because the release offered in evidence by the defendant was improperly rejected.</p>

AN alternative mandamus had been issued, pursuant to a rule of this court, directed to the judges and assistant justices of the court of common pleas of Chenango county, commanding them to sign and seal a bill of exceptions, which had been tendered by the defendant in the above cause, or show cause, &c. One of the judges signed the bill of exceptions, and two of them made a separate re-ten, under their hands and seals.

A MOTION was made, at the last term, for the allowance of a writ of privilege, in behalf of William M. Bliss, an attorney and counsellor of this court.

<p>The penalty given by the act, i e. ways, (sess. ¡A^ctaig °r ollIy- .to <>uMgbways or not of a private road.</p>

IN ERROR,, from the justice’s court of the city of New-York= Andrews brought an action in the court below, against Porter, master of Hie slaip Elisa Ann, for his services as a seaman, on a voyage from New-York to North Carolina, and from thence to New- York It was proved that the plaintiff below signed artides in the usual form, for a voyage on board of that ship, “ from New-York to North Carolina, and from thence to one or more ports in Europe, and back to her port of…

¡IN ERROR., on certiorari, from a justice’s court. Earle z u sued Phinney, before the justice, on a promissory note, dated 7th December, 1810, for 13 dollars and 60 cents, payable on demand *° Allen or bearer, on which was endorsed one dollar and four cents, On the return of the summons, the defendant and his attorney appeared, and the constable who served the summons, said he would appear and answer for the plaintiff, if the defendant and his attar ey would take no…

IN ERROR, on certiorari, from a justice’s court. Kittle sued Baker and Brown before the justice. On the return of the summons, the parties being called, the constable who served the summons answered for the plaintiff, and the defendants appeared by their attorney. The constable then exhibited to the justice the plaintiff’s demand, to which the defendants pleaded non assumpsit.

<p>A. sued B. on a written engagement, promising ifC« did not pay A. for the goods delivered to him, on the recommendation of B., B«. would he responsible for the amounto A, sued Co for the goods, and recovered judgment, on which execution was issued, and returned nulla bona by the constable; but under circum° stances wh eh. were supposed tomakethe officer liable for the debto A, afterwards sued B,s who set up thepro' ceedings against C. See in his defences. It was held, that C= was liable on his promise to A. and that the mattersset up in defence were no discharge; that A. having prosecuted C« to judgment and execution, without effect, was not bound to go further and prosecute the officer, for his supposed liability,</p>

IN ERROR, on certiorari, from a justice’s court. Herrick brought an action against Stratton, before the justice, for obstructing the road leading from the village of Cocksackie, on the 1st of June, 1812, in such a manner as to prevent the plaintiff from passing with his waggon and horses, whereby he was hindered from pursuing his lawful business, &c. Samuel Rockwell, a witness for the plaintiff, testified, that he was a blacksmith, and did work for the plaintiff on the 1st…

IN ERROR, on certiorari, from a justice’s court. TIubbel sued Stratton, before the justice, for obstructing the highway leading irom the village of Cocksackie and preventing the plaintiff from ti it was proceeding on the road, about his lawful business, &c. proved that the plaintiff came to the turnpike gate, with his waggon and horses, and demanded to pass free, because he had been to his usual blacksmith’s. The defendant, who was the toll-gatherer, re. fused to let him…

IN ERROR, on certiorari, from a justice’s court. Mooney sued Tryon, before the justice, on a due bill, given for wheat, for twenty-three dollars.

IN ERROR, on certiorari, from a justice’s court. Slade brought an action of debt against Spicer, in the court below, for the penalty of 25 dollars.

IN ERROR, on certiorari, from a justice’s court. Cook brought an action against Brown and Hotchkiss, before the justice, and declared on a receipt given by the defendants to him, for a pair of horses, the property of Jedediah Chapman, which the plaintiff, as constable, had taken on an execution; and which horses had not been delivered to the plaintiff, when demanded, according to the tenor of the receipt, &c. The receipt was proved by the plaintiff, and that the defendants,…

IN ERROR., on certiorari, from a justice’s court. Edsoñ' brought an action of trover against Chandler, before the justice, f°r taking and converting 7,000 pine shingles, the property of the The defendant pleaded not guilty; and specially, that the plaintiff had made the shingles of timber while green, on land belonging to the Stockbridge Indians, and that he had so taken the timber and made the shingles on the land, as a trespasser.

IN ERROR, on certiorari, from a justice’s court. Youngs . . „ u 65 sued Hemstract9 before the justice, m trespass, and on the return of the summons, ob the 25th October, 1811, the parties appeared, and joined issue.

IN ERROR on certiorari from amstice s court. Barnes brought . . , c, , „ , an action against ¡sage, before the justice, to recover the penalty of 6 dollars, for obstructing the highway, under the 19th section of the act. The parties joined issue, by consent.

ERROR, on certiorari, from a justice’s court. Salisbury sued Bowditch, before the justice, by warrant.! The plaintiff delivered no written declaration; but stated to the justice that he The defendant pleaded non assumpsit, and a set-off of certain notes. By the request of the defendant, the cause was adjourned to the next day. There was a trial by jury, who found a verdict ^or the plaintiff, for 19 dollars and 20 cents.

IN ERROR, on certiorari, from a justice’s court. Mead and Green, as overseers of the poor of the town of Norwich, brought an action of debt against Wallsworth, before the justice, to recover 25 dollars, on an order of bastardy, made by two justices of the peace, the 18th of September, 1801, which required W. to pay the weekly sum of 75 cents to the overseers of the poor, for the first year the child should be chargeable to the town, and 50 cents for every week thereafter…

IN ERROR, on certiorari, from a justice’s court. Stoutenbergh and Teller brought an action of debt against Jansen, late sheriff of Ulster, before the justice, for the escape of one Smith, who was a prisoner on execution, in his custody, at the suit of the plaintiffs, for 15 dollars and 84 cents. The plaintiffs proved, by a constable, that he delivered Smith, with the execution, into the hands of the defendant; and the defendant confessed that Smith was out of the gaol limits.

IN ERROR, on certiorari, from the justices’ court of the city °f Nero- York. Selah and James Strong brought an action in the court below, against C. Clinton, clerk of the district court of the Nem-York district, for monev had and received to the use of the . .„ plaintiffs, to recover back 31 dollars, with interest. On the trial °f the cause, in the court below, on the 14th November, 1810, following facts appeared in evidence.

THIS was an action of trespass. The declaration contained five counts ; for breaking the plaintifFs close; taking down his saw-mill, flume, &c= and carrying away and converting the materials, &c. and for taking and carrying away divers quail-tides of timber, boards, &c. The defendant pleaded the general - issue. The cause was tried at the Albany circuit, in April, 1812, before Mr. Justice Spencer.

THIS was an action of trespass on the case. The declaration contained four counts. The first and second counts were in tro#er for a quantity of oak timber £ the third was for the defend» ant’s attaching, by process out of the court of king’s bench in Que-bee, the timber of the plaintiff, and so negligently and carelessly behaving, &c. that the timber was lost. The fourth count was for ° a malicious prosecution of the plaintiff.

RIKER, for the plaintiff, moved to amend the ca. sa. on file, in this case, by striking out the return day, the 16th August, and insertiug the 15th August, it having been made returnable, by mistake, out of term. He cited 4 Burr. 1187. 1 Cromp. Prac. 368. 1 Salk. 273. 1 Ld. Raym. 775, 776. 3 Wils. 341. 1 Johns. Cas. 31. 5 Johns. Rep. 163.

THIS was an action of trespass on the case, for debauching and getting with child Lanah, the daughter and servant of the plaintiffj by which he lost her service, and was obliged to expend a large sum of money for the expenses of her lying in, &c. The cause was tried at the Washington circuit, in June, 1811, before Mr. Justice Spencer.

.FISK, for the defendant, moved to vacate a rule obtained in . . .

<p>Where a deverdict, obtained leave to plead his discharge under act, ¡mhliarrein continuanee on payment of costs, to comply with of6 the^ruie) and judgment was perfected against him, thatTJ could wardsafavail himseif of his and^the’court therefore”0™ toiiti0ord°er ™ exoneretur on the bail piece.</p> <p>If the debt in the suit against the principal has been paid, that is matter to he pleaded by the llRil, and not ground for their relief, on motion.</p>

THIS cause came before the court, on a writ of error from the supreme court. The plaintiff brought an action of debt, in the court below, to recover the penalty of 1,250 dollars, under the 5th section of the- habeas corpus act. The defendant pleaded specially, and there was a demurrer to the plea, on which the court below gave judgment for the defendant. See 5 Johns. Rep. p. 282—299. The counsel .declined arguing the demurrer in the court below.

HENRY, for the respondents, presented a petition of one of the respondents, stating that one of the respondents, a feme sole, had married, and that one of the respondents and one of the appellants jjad djed s;nce the appeal was filed in this cause; and he moved that the appellants bring in the proper parties, in a reasonable time, and proceed on the appeal, or that the ■ proceedings here be suspended.*

THE respondents filed their bill in the court of chancery on the 1st of June, 1811, against the appellants.

THE respondent, on the 17th July, 1802, filed a bill in the court of chancery, against the appellant, for an account, and the specific performance of an agreement, by which the appellant and one Henry Wisner were to convey to the respondent part of lot No. 39. in the angle of the Minisinlc patent, in the town of Wall-hill, in Orange county.

THE respondents filed their bill in the court of chancery against the appellants, on the 1st April, 1807. The bill stated that the respondents, and Zeno Archer and William M'Conehey, merchants, under the firm of Archer Sr M'Conehey, were the joint owners the schooner Elizabeth; the latter being owners of three fourths, and the respondents of one fourth.

THE appellants filed their bill against the respondents, in the court of chancery~ on the 14th of Sep teniber3 1811. Held: And yet hold, and were entitled to all such exclusive right or privilege, having never parted with or assigned any part of the same, nor had they any associates in that business; and well hoped that, they would be left in the uninterrupted enjoyment of their exclusive right and privilege, the more especially, as the same was…

THE bill in this cause was originally filed in the court of chancery, by Maria Duane, William North and James C. Duane, as executors of the will of James Duane, Esq. deceased, and trustees named in his will, and by Solomon Baker, Benjamin Baker and IVathaniel Parker, on the 17th June, 1799.