Volume 9 — Wendell's New York Reports

<p>This was an action on the case, tried at the Albany circuit in September, 1830, before the Hon. James Vanderpoel, one of the circuit judges.</p> <p>The defendant was sued as the captain or master of the steam-boat, the New Philadelphia, for running upon and sinking a vessel called the Atlantic, belonging to the plaintiff, lying at anchor in the Hudson river. The collision took place in the night. There was a dense fog; but whether it extended to that part of the river where the Atlantic was lying at the time of the accident is doubtful, the evidence as to that fact being contradictory. It was proved that the fogs on the river make their appearance suddenly, and are very dense at some points for the extent of perhaps half a mile, while at other points they are much lighter. At the time of the accident, the master was on board of the steam-boat, but not on deck; the pilot was at the wheel, steering the vessel, and did not observe the Atlantic until within about 30 rods of her, when it was impossible for him to avoid the collision, considering the speed of the boat. The pilot, as well as the captain or master, was employed by the owners of the steam-boat; when under way, the pilot has the exclusive control and direction of the course of the boat, but is bound to obey the orders of the captain as to stopping the vessel or proceeding on her course. The judge .charged the jury that the defendant, as master of the steam-boat, was not responsible for injuries arising from the acts or negligence of the pilot, unless he at the time controlled the direction of the boat, or commanded the act which caused the injury, or permitted it when he had power to prevent it, or omitted some duty by means whereof the injury happened. If, however, the jury should be of opinion, from the evidence adduced, that the night was so dark and foggy as to render it unsafe and imprudent to run the boat, they ought to find for the plaintiff; for in such case it was the duty of the defendant to have directed the boat to be stopped. The jury found a verdict for the defendant. The plaintiff moved for a new trial.</p>

Error from the Orange common pleas. McCoy sued Curtice in an action of trover for a watch; the defendant pleaded the general issue. The plaintiff proved the taking of the watch and its value. The defendant justified as collector of a school district, viz. school district No. 15, situate partly in the town of Warwick and partly in the town of Goshen, in the county of Orange.

This was an action of assumpsit, tried at the New-York circuit in March, 1830, before the Hon. Ogden Edwards, one of the circuit judges. The plaintiffs claimed to recover damages for a breach of warranty in the sale to them by the defendants of 50 bales of cotton, alleging the sale to have been made by sample, and that the bulk of the commodity, when opened in a foreign market, proved to be of a quality inferior to the samples exhibited.

This action, tried at the Washington circuit in November, 1830, before the Hon. Esek Cowen, one of the circuit judges, was brought to recover the balance of a sum of money directed to be levied on a warrant issued by the treasurer of the county of Washington, commanding the sheriff oí that county to levy of the goods, &c. of one J. J. Sherwood $1743,05, being the balance of a certain tax, for the collection of which a tax roll and warrant in due form had been delivered to…

Error from the Orange common pleas. Reynolds sued Moore in trespass for taking a yoke of cattle. Moore justified the taking as collector of a school district, under a warrant issued by trustees for levying of a school district tax. The district was formed in March, 1828, from four districts; two in Walkill and two in Crawford; the record of its formation particularly described the lands of several persons as included within its bounds.

Error from the Niagara common pleas. Freeman sued Baker and two others, trustees of a common school district, in an action of trespass for causing the sale of a quantity of wheat growing upon his land. The defendants justified under a warrant issued by them to collect a tax voted by the inhabitants of the district to purchase a site for a school house, and to erect a school house thereon. The district was composed of parts of the counties of Niagara and Orleans.

This was an action of assumpsit, tried at the Greene circuit in October, 1829, before the Hon. William A. Duer, then one of the circuit judges. The declaration contained four counts; the two- first on promissory notes, the third for money paid, &c. and the fourth for goods, chattels, wares and merchandise sold by the plaintiff to the defendants.

This was a special action on the case against the defendants, for neglecting to give notice of the non-payment of a note left with them for collection, tried at the Herkimer circuit, in March, 1830, before the Hon. Nathan Williams, one of the circuit judges. The plaintiff was the holder of a note for $600, made by J. C. Dann, endorsed byD. Sprague and J.Dygert, bearing date 2d October, 1827, payable at the bank of Utica seven months after date.

<p>A party peaceably in the actual possession of lands at the time of a forcible entry, or in the constructive possession thereof at the time of a forcible holding out, is entitled to proceed under the statute of forcible entries and detainers, although he is neither seized of a freehold nor possessed of a term of years in the premisses.</p> <p>Proof of actual possession is sufficient to support the allegation in the inquisition, that the complainant was possessed in fee simple.</p>

Error from the marine court of New-York. Andrews obtained a judgment in one of the ward courts of New-York against Smith, on which he commenced a suit against Smith in a justice’s court in the county of Kings, and obtained judgment.

This was an action of covenant, tried at the Monroe circuit in March, 1830, before the Hon. Addison Gardiner 9 one of the circuit judges.

* Quo wakRanto. The attorney-general filed an information in the nature of a quo warranto, statingthat on the 27th November, 1827, Abner Haxdtine was duly appointed a commissioner to take the proof of deeds, &e. for the town of Ellicot, in the county of Chautauque, and that for 100 days preceding the 14th April, 1831, Joseph Waite had usurped ethe office of a commissioner.

This was an action on the case, tried at the Erie circuit in September, 1830,-before the Hon. Addison Gardiner, one of the circuit judges. On the 10th November, 1827, the defendants, as ware-housemen, or store keepers, received on their wharf at Buffalo, 21X barrels of salt, belonging to the plaintiff.

Error from the Monroe common pleas. Spencer sued Atchinson in trespass, assault, battery and false imprisonment, and proved that on the 8th July, 1829, he was arrested by a constable on a warrant issued by Atchinson, who was a justice of the peace of the town of Parma, in the county of Monroe.

Error from the Washington common pleas. Bordwell sued T. Dewey and C. Dewey in a justice’s court in an action of trespass quare clausum fregit and de bonis asportatis. The defendants pleaded the general issue. The plaintiff obtained judgment before the justice, and the defendants appealed to the Washington common pleas.

This was an action of assumpsit, tried at the Otsego circuit in September, 1830, before the Hon. Samuel Nelson, then one of the circuit judges. The declaration contained seven counts.

This was an action of trespass de bonis asportatis, tried at the Ontario circuit in September, 1829, before the Hon. Daniel Moseley, one of the circuit judges. The action was brought to recover damages for the selling of a steam engine by the defendant as sheriff of Ontario, under an execution against one Chester Francis.

This was an action on the case, tried at the Orange circuit in April, 1830, before the Hon. James Emott, then one of the circuit judges. Held: that as there was no express contract for the carriage of the goods, and as by the custom and usage of stages, passengers paid for the carriage of goods above a certain weight, unless they so paid, the coachman was not liable.

Demurrer to replication. This is an action of assumpsit for goods sold, &c. The defendant pleads that after the making of the promise, &c. to wit, on the 1st June, 1825, Rapelje, one of the plaintiffs, executed to him a release of all claims and demands.

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

Error from the Seneca common pleas. Moody sued Vree-Zand in the common pleas, and on the trial of the cause was nonsuited. The defendant made up a record of the nonsuit, which was signed by P. A. Barker, one of the judges of the common pleas, he not being first judge of that court, nor of the degree of counsel in the supreme court.

Statute of limitations. This cause came before the court on a report of referees. The action was commenced in 1829. The plaintiff proved an account against the defendant, to the amount of #63,24, which accrued in the years 1826 and 1827.

This was an action of assumpsit, tried at the Seneca circuit in June, 1880, before the Hon. Daniel Moseley, one of the circuit judges.

Demurrer to declaration. The plaintiff in his first count declares on a written agreement, bearing date 7th June, 1826, by which the defendant, for and in consideration of $255 in vaiue received, promised to contract to the plaintiff' a certain of land, at $4 per acre, and to endorse on the contract the said sum of $255; the lot is described as situate in the . town of Lyme,'m the county of Jefferson, as beginning at the comer of a certain lot, and certain courses and…

This was an action for a libel, tried at the Rensselaer circuit, in June, 1830, before the Hon. James Vanderpoel, one of the circuit judges. The plaintiffs were the proprietors of a line of stage or post coaches plying between Albany and Saratoga Springs for the transportation of travellers and their baggage.

This was an action of slander, tried at the Madison circuit in October, 1830, before the Hon. Nathan Williams, one of the circuit judges.

Suit on county treasurer’s bond. The declaration is on a bond in the penalty of $30,000, conditioned for the faithful discharge of the duties of the office of treasurer of the county of Monroe, by S. M. Smith, duly appointed to that office on ^ October, 1825, on which day the bond bears date. The declaration is general. The defendants, who are the sureties of the treasurer, after craving oyer, plead, 1. Non est factum, and 2. Performance.

This was an action of ejectment, tried at the Washington circuit in June, 1830, before the Hon. Esek Co wen, one of the circuit judges. The plaintiffs claimed to re-enter as the landlords of the premises in question, for the non-payment of rent.

<p>Error from the Washington common pleas. Gandall took as a distress for rent, certain goods and chattels belonging to Pike, who sued out a plaint in replevin, and declared, stating the taking to have been on the 25th September, 1827. The declaration contained three counts. The defendant put in five cognizances, in which he acknowledged the taking as the servant and agent of Isaac Low, surviving trustee of the estate of Lieut. Col. G. Cuyler, deceased, and justly, <&c. for rent due on certain demised premises. In the first cognizance, the defendant, in answer to the first count of the declaration, alleged that Isaac Low, on the 1st February, 1823, demised a certain lot of land, of which he, as trustee as aforesaid, was seized in Ms own right as of fee, and of which the locus in quo is a part, to one J. Wright, for the term of 14 years, at an annual rent of $107 ; that Wright entered, and subsequently assigned his term to Pike, who entered into possession of the premises and was in possession at the time when, &c. and because SI38,50 was due and in arrear for the rent of the premises on the 1st February, 1827,the defendant acknwledged the taking, &c. as a distress for the rent; whereupon he prayed judgment and a return, &c. The second and third cognizances were substantially like the first; the second being in answer to the second count, and the third in answer to the third count of the declaration. In the fourth cognizance, the defendant acknowledged the taking as alleged in the second count, and justly, Sec. because the plaintiff, for two years, ending 31st January, 1827, held and possessed a certain close called lot M. Sec., as tenant to Isaac Low, by virtue of a lease from Low, subject to an annual rent of SI07 ; and because SI38,50, parcel of the rent for two preceding years, was due and in arrear on 1st February, 1827, the defendant, as the servant and agent of Low, took the goods, &c. as.a distress for rent, wherefore he prayed judgment, and a return, &c. The fifth cognizance was like the fourth, except being in answer to the third count of the declaration ; in neither of the two last cognizances is the title or estate of Low set forth. To these cognizances the plaintiff did not answer, and judgment of non-pross was entered against him. In making up the record of judgment, the piadla is stated to be of December term,,1827; then follow the declaration and cognizances, after ■which there is an imparlance to the second Tuesday of Biarch, last past, for the plaintiff to plead to the cognizances; at which day it is stated that the defendant appeared, but that the plaintiff, although called, made default, and did not prosecute his plaint, by reason whereof, it is said, the defendant ought to recover against the plaintiff his damages on occasion of the premises. A writ of inquiry is then awarded to the sheriff, commanding him to inquire what damages the defendant had sustained by means of the premises, and to return his inquisition on the last Tuesday of May. At which day, it is stated, the sheriff returned an inquisition, taken on the 1829, by which it is found that the defendant hath sustained damages by means of the premises to @14,58, over and above costs, &c. and for those costs to sis cents. Judgment is then entered that the plaintiff take nothing by his plaint, but that he be in mercy, &c. and that the defendant go thereof without day, &c. and that he have return of the goods, &c. and also that the defendant recover the damages found by the inquisition, and @54,94, costs of increase. The plaintiff sued out a writ of error.</p> <p>The default of the plaintiff in not pleading, appears by the record to have been entered at a term preceding the putting in of the cognizances. It does not appear when the writ of inquiry was returnable, or when or of what term the final judgment was entered. A writ of inquiry, to inquire into the damages sustained by the defendant, by reason of the premises, was unauthorized by law. Such a proceeding is had in England, under the statute 21 Henry VIII. ch. 19, 1 Saund. 195, n. 3; but the provisions of that statute are not adopted here. By our statute, 1 R. L. 94, § 11, the court are authorized to award ■ a writ of inquiry to ascertain the sum in arrear for rent, and the value of the goods distrained; but not the damages of the defendant. The two last cognizances are fatally defective, in not setting out the title of the landlord, and as the judgment is entered on all the cognizances, and two of them are bad, it must for this cause be reversed. 5 Gowen, 338.</p> <p>The errors in the record are mere formal errors. The plaintiff should have applied to the court below to correct them on motion; on a writ of error they will be considered as cured by the statute of jeofails. The words last past, in the dies datus to plead, is a clerical misprison, and will be rejected as surplusage. No year is specified in which the writ of inquiry is made returnable, but the award of the process is not therefore void ; if intended to have been returnable in May, 1828, it is regular; if in May, 1829, it is well enough, for the rule forbidding the intervention of a term between the teste and return of a writ does not apply to a writ of inquiry; the rule on that subject jg app]jca]3]e t0 mesne process only. Whatever informalities there may be in the record, they do not effect the justice case> are a^ clerical mistakes, and are cured by the statute of jeofails. 4 Wendell, 181. 2 id. 147. 6 Cowen, 666. 3 John. R. 184. 7 Cowen, 263. 4 Wendell, 627. The plaintiff, by his default in pleading, admitted the allegations in the cognizances, and the defendant was entitled to judgment of retorno hábendo as at common law. 2 Sellon, 168. 1 Archb. Pr. 218. 2 id. 70, 83. By statute, every person making avowry, justification or cognizance in any replevin or second deliverance, if the same be found for him, or the plaintiff be nonsuited or otherwise barred, is entitled to recover his damages and costs against the plaintiff in like manner as the plaintiff would have done if the same had been found against the defendant. 1 R. L. 344, § 3. No authority is directly given to award a writ of inquiry in such case, but the court necessarily has the power to do so, to carry the statute into effect. It is under this statute, and not the replevin act, that the writ of inquiry in this case was issued. It is optional with the party who distrains for rent to take his judgment for arrears of rent, &c. or to take judgment of retorno hábendo, and assess his damages under the statute. 1 R. L. 344. Admitting that the two last cognizances would have been held bad, had they been demurred to, the defendant is entitled to judgment on the three first, which are undeniably good ; for if one avowry is good, the defendant is entitled to judgment. 11 Co. 45. Comyn’s Dig. tit. Pleader, c. 32, 3 K. 14. If the judgment be reversed, it should be reversed only in part, as the defendant, at all events, is entitled to judgment of retorno habendo.</p> <p>The statute relied on by the counsel is the act concerning costs; the legislature did not intend by that act to regulate the proceedings in the action of replevin. Nor can the defendant avail himself of the fact of having one or more good cognizances, because the judgment de retorno is general, and applies as well to the defective cognizances as to those which are good.</p>

This was an action of ejectment, tried at the Otsego circuit in September, 1830, before the Hon. Samuel Nelson, then one of the circuit judges. The plaintiff claimed to recover the premises in question as a purchaser at a sheriff’s sale, under a judgment in his own favor against one Davis Hopkins, under whom the defendant also claimed.

This action was tried at the Schoharie circuit in July, 1830, before the Hon. James Vanderpoei,, one of the circuit judges.

This was an action on a policy of insurance, tried at the Kings circuit in May, 1830, before the Hon. Ogden Edwards, one of the circuit judges. The insurance was on a dwelling house of the plaintiff, situate in Brooklyn. The policy was underwritten by the Alliance British and Foreign Life and Fire Assurance Company. Bum insured @7,500, for one year from 22d July, 1828.

This was an action of trover, tried at the Albany circuit in September, 1830, before the Hon. James Vanderpoel, one of the circuit judges. The action was brought for a watch belonging to the plaintiff, of which the defendant had been in possession, and which, while in his possession, was levied upon and taken by an officer, by virtue of an execution against one William Weaver.

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

Error from the superior court of the city of New-York. Brown was the public inspector of flour and meal in the city of New-York, and Tappan was one of his deputies from the 15th March, 1821?, to the 5th April, 1828. Tap-pan brought an action of assumpsit against Brown, claiming to recover 25 per cent, of the fees of office received by Brown during the above period, which claim amounted to upwards of $2500.

Error from the Rensselaer oyer and terminer. „ The defendant was indicted for obtaining the endorsement of one Augustus Filley to certain promissory notes by false pretences.

<p>Where in an indictment for forgery two distinct offences requiring different punishments are alleged in the same count, as where the forging of a mortgage and of a receipt endorsecHhereon are both charged in the same count, and the defendant be convicted, the judgment will be arrested.</p> <p>In charging the forgery or felonious alteration of a mortgage, with the intent to defraud the mortgagor, it must be averred that there are in fact such lands as are described in the instrument, and that the mortgagor had an interest or right in the same.</p> <p>Whether the forging by altering or destroying a receipt endorsed upon a mortgage would be adjudged a forgery of the mortgage, qwere.</p>

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

This was an action of ejectment, tried at the Cayuga circuit in January, 1830. The lessor of the- plaintiff, Stansbury, claimed to recover the premises in question, on the strength of a possession often years previous to the 1st May, 1829. It was proved that about the 1st May, 1829, the defendant entered the premises forcibly, and put the wife of Stansbury out of possession.

Demurrer to replication. W. Love sued Adam Humphrey, John Humphrey and P. Smith, for an assault, battery, and false imprisonment. The declaration contained four counts; the first and fourth charging an assault and battery simply, and the second and third an assault, battery and false imprisonment.

Tías was an action of debt for an escape, tried at the Columbia circuit in April, 1831. One Curtiss was a prisoner in execution, on the limits of the jail of the county of Columbia.

<p>Secitals in a deed of land are evidence against the party making them or any person claiming under him; they estop parties and privies—privies in blood, in estate, and in law.</p> <p>A person entering into possession of land under a party thus bound by a re. cital, is a privy in law of such party and is bound by whatever would conclude or affect him.</p>

A habeas corpus was allowed in open court, on the first day of the present term, directed to H. G. Mumford, sheriff of the county of Providence, in the state of Rhode Island, and to J. L. Hays, a police officer of New-York, commanding them to bring before the Chief Justice, at his chambers, John L. Clark, whom it was alleged they had in custody, and to exhibit the cause of his detention.

<p>A plaintiff in ejectment claiming the premises in fee is entitled to recover, although, he only shew title by possession.</p>

<p>The suing out of a writ of error does not excuse the officer to whom the execution is issued from proceeding, unless hail is duly put in.</p>

Landlord and tenant. Cosine instituted proceedings against Roach to remove him from certain premises in the city of New-York, on the allegation that Roach was his tenant, and held over beyond his term without permission. The proceedings were had under the statute regulating summary proceedings to recover the possession of land ; they were instituted on the 13th April, 1831, before one of the assistant justices of the first, second and third wards.

Demurrers to declaration and pleas. The declaration is in debt on a constable’s bond. The bond is stated to have been given by Erwin and the other defendants, his sureties, to The People of the Stale of New-York, or mto such of them as might be interested in a condition thereunder written. It is stated to bear date on the 5th March, 1828, and to be in the penal sum of SI000.

Demukeee to plea. To a declaration for goods sold and delivered to the wife whilst sole, the defendants jointly pleaded that at the time of the commencement of the suit, the husband was an infant within the age of 21 years, to wit, &c.; to which plea the plaintiffs demurred. An infant is competent to enter into the marriage contract. By the intermarriage in this case, the husband became entitled to the personal property of the wife, and might reduce it to possession.

Demurrer to declaration. The plaintiff declares on a bond conditioned for the performance of an award, to be made in pursuance of a submission to arbitration of certain matters in difference between the parties in this cause; the award by the terms of the submission to be made on or before the 10th May, 1830; and assigns for breach, that after some progress had been made in the hearing before the arbitrators, and after a second meeting by them in pursuance of an adjournment,…

This was an action of asssumpsit, tried at the Chautauque circuit in October, 1830, before the Hon, Addison Gardiner, one of the circuit judges. The suit was brought on two promissory notes, given as collateral security for the payment of n. judgment which had been obtained by the plaintiffs against Lyon, one of the makers of the notes, and to procure a suspension of proceedings apon the judgment until the notes should become payable.

Certiobarx to the mayor’s court of Albany, to remove proceedings had for the widening of State street. In January, 1832, proceedings were instituted for the widening of State sZreef,between North Market and Quay streets, by virtue of the acts of the legislature relating to the city of Albany.

Error from the Herkimer common pleas. Stephen Lee sued James G. Ferguson in a justice’s court, in an action of trespass, for taking several articles of household furniture; the defendant pleaded a former recovery and property in himself.On the trial of the cause the following facts appeared: In August, 1828, one E. Gorton executed a mortgage to one Crandall Lee, of certain personal property, comprising the furniture declared for, one cow, four hogs, and various other…

Mann sued Hatch before a justice, for services rendered in arresting one Gallup on a justice’s warrant at the .suit of Hatch. He proved that he declined the service, and that Hatch agreedto payhim well for it; that he employed a person to assist him; that they went to the house of Gallup at three o’clock in the morning, and about day-break succeeded in arresting nim. The service was proved to be worth $1,75.

Demurrer to plea in abatement. The plaintiff declared in assumpsit, stating his cause of action to have arisen in September, 1830, and entitling his declaration g enerally as of July term preceding.

The defendant was charged with perjury, committed by him in ® court of special sessions, holden before a judge of the county courts of Chenango, who was not a justice of the peace, and before two justices of the peace of that county, on the trial of one Nathaniel Tracy.

This .was an action of replevin, tried at the New-York circuit in April, 1831, before the Hon. Ogden Edwards, one of the circuit judges. ' In November, 1828, the plaintiffs stored with the defendants, who were warehousemen at Brooklyn, 99 tons, of’hemp, parcels of which were from time to time delivered upon the order of the plaintiffs.

<p>A check on a bank, charged in an indictment for forgery to be addressed to the cashier thereof, is correctly described where the check is in the form of a letter addressed on the back thereof to the cashier, although in. the inside of the letter there be no direction whatever.</p>

Tins was an action of assumpsit, tried at the Rensselaer circuit in June, 1830, before the Hon. James Vanderpoei,, one of the circuit judges. The plaintiffs declared as the endorsers of a promissory note, given by the defendants to Keating Rawson for $4000, bearing date 2d July, 1829, payable sixty days after date.

This was an action of assumpsit against the defendant, as the endorser of a promissory note made to him by George Fisher, for #375, bearing date 1st June, 1828, payable with inter? est in two years.

Tins was an action of trespass de bonis asportatis, tried at the Steuben circuit in November, 1830, before the Hon. Samuel Nelson, then one of the circuit judges. The defendant as the collector of a common school district number seven, in the town of Starkey, in the county of Yates, levied upon a yoke of oxen, belonging to the plaintiff, by virtue of a warrant from the trustees of the district, to satisfy a school bill of $7,62, due from the plaintiff for teacher’s wages.

<p>In assumpsit against two defendants, where one of them is misnamed in the capias which is returned non est inventus as to him, and the suit is proceeded in against the other defendant who pleads to issue, the defendant as to whom the misnomer has happened, although nominally not a party to the suit, is not competent to be sworn as a witness for his co-defendant.</p>

This was an action of assumpsit, tried at the Columbia circuit in September, 1830, before the Hon. Esek Cowen, one of the circuit judges.

This was an action of assumpsit, tried at the Madison circuit in September, 1830, before the Hon. Nathan Williams, one of the circuit judges. The suit was on a note for the delivery of a specific quantity of potashes ; it bore date 15th February, 1817. The defendant pleaded non assumpsit and actio non accrevit, &c. upon which the plaintiffs took issue.

Millard sued Jenkins in a justice’s court for a false return made to the Onondaga common pleas, on an appeal by Millard, from a judgment against him, rendered by Jenkins, as a justice of the peace, in a suit in favor of S. Hall and J. McClure.

This was an action of trover tried at the Montgomery circuit, in November, 1830, before the Hon. Esek Cowen, one of the circuit judges. The action was brought for the taking in September, 1821, of a quantity of wheat and other property a few days after the death of one Lufbury, from a farm then lately occupied by him.

Demurrer to replication. The plaintiff declared on & note of the ancestor of the defendants, they being sued as heirs, bearing date 19th October, 1817, payable on demand. The declaration also contained the common counts, the day of the promise being the same as the date of the note.

This was an action of ejectment for dower, tried at the Schoharie circuit in November, 1830, before the Hon. James Vanderpoel, one of the circuit judges. The plaintiff, in her declaration, claimed an undivided third, part of the north half of a certain lot of land, as her reasonable dower, as the widow of William Borst, deceased, late her husband.

<p>Demurrer to plea. The plaintiff declared in assumpsit specially, that for the accommodation of the defendants he endorsed a note drawn by them, dated 24th July, 1828, payable in 90 days, which he had been "compelled to pay, and did pay on 1st January, 1831, to the Jefferson County Bank, where the note had been discounted for the benefit of the defendants. Various pleas were put in by the defendants ; and among them was a plea that on the 21st October, 1830,1. Andrews duly obtained a discharge as an insolvent debtor, from all debts owing by him. The discharge was granted by a commissioner authorized to grant such discharges, under that portion of the statute which treats of “ voluntary assignments made pursuant to the application of an insolvent and his creditors.” To this plea the plaintiff demurred, and the defendant joined in demurrer.</p> <p>By the revised statutes the discharge obtained by the defendant may be pleaded in bar of any action upon any contract made by him since 12th April, 1813, within this state; and in bar of any action upon any liability of such defendant, incurred by malting or endorsing any promissory note or bill of exchange previous to the execution of his assignment; or incurred by him in consequence of the payment of any party to such note or bill of the whole or any part of the money secured thereby, whether such payment be made prior or subsequent to the execution of the assignment by such defendant. 2 R. S. 22, § 32. This statute embraces all contracts made by the insolvent since the 12th April, 1813, as it is expressly declared to be a revisal and continuation of the act entitled “ An act for giving relief in cases of insolvency,” passed on that day.</p>

This was an action on the case, tried at the Essex circuit, in June, 1830, before the Hon. Esek Cowen, one of the circuit judges. The action was for a nuisance created by the erection and maintenance of a dam across the outlet of Lake Paradox, corrupting the atmosphere and affecting the health of the plaintiff and his family.

This was an action of assumpsit, tried at the Tioga circuit in May, 1830, before the Hon. Nathan Williams, one of the circuit judges. The declaration contained the common money counts, including an insimul computassent.

Error from the Saratoga common pleas. Lovell sued Gurnsey and Knight forfalse imprisonment.

Alvord sued Baker and Cooper in a justice’s court, and on the trial produced two orders drawn on him by the defendants for harness work, one dated 2d September, 1830, requesting the plaintiff to let the hearer have five dollars in harness work, and the other dated 23d September, 1830, requesting the plaintiff to make G. W. Worden such a set of one horse harness as he wanted.

This was an action of covenant, tried at the Dutchess circuit in November, 1830, before the Hon, James Emott, then one of the circuit judges.

Error from the superior court of the city of New-York. The defendant Gibbons chartered a steam-boat belonging to the plaintiffs, to ply between the city of New-York and New-Brunswick, in the state of New-Jersey, from 26th June 1827, until the first day of January following ; he to pay for the use of the vessel during the term the sum of #2700.

Quo warranto. This was an information in the nature of a quo warranto, filed by the attorney general against the defendant for claiming and exercising the office of constable in the town of Butternuts in Otsego.

Demurrer to plea. The plaintiff declared in covenant, on a lease of certain demised premises, by which the defendants bound themselves to pay a certain rent and the taxes. The plaintiff averred that on 30th April, 1839, the sum of $73,33 of rent was in arrear, and that he had been obliged to pay $59 for taxes assessed on the demised premises.

Error from the Seneca common pleas. Smith sued Farr and Emmons in an action of trover for taking a quantity of wheat in the sheaf cut by the plaintiff and left standing in the field. The plaintiff shewed title to the wheat by virtue of a purchase made 27th May, 1830, under an execution on a judgment in his favor against one David Jones, obtained on attachment; the judgment was for $41,88, and the execution issued thereon was returnable in thirty days.

Demurrer to pleas. The plaintiff declared in the usual form in replevin for the taking of cattle on the 20th February, 1830, at Rome, in the county of Oneida.

Error from the Herkimer common pleas. The Union Furnace Company sued Ferguson in an action of trover for a yoke of oxen, alleged to have been purchased by them of Moses Clark and Michael Nichols. Clark and Nichols bought the oxen of Ferguson in March, 1829, and gave him two notes for 25 cords of wood each, one payable the 15th July, and the other the 15th September, 1829. One Orimel Starks signed the notes as surety for Clark and Nichols.

<p>It seems that a lease of promises from the first day of May in one year to the first day of May in the succeeding year, excludes the first day.</p> <p>Proof of a local custom, that a lease in those terms expires at noon of the last day is admissible ; and the court suggest that such custom would be highly convenient.</p> <p>Where an action of trespass quare domum fregit was brought by an out going tenant for the tearing down a partition wall in the house on the first day of May, before noon and before he had removed from the premises, and the defendant, pleaded liberum tenementum but did not prove his plea, and the plaintiff was nonsuited, the nonsuit was set aside and a new trial ordered. Where a plaintiff declares in the common pleas, in an action of trespass originally commenced before a justice whose jurisdiction is taken away by a plea of title, the defendaet may file a suggestion, stating the manner in • which the cause was brought into the common pleas; it seems, however, that a suggestion in the plea would be more correct.</p>

<p>Quo warranto. In October term, 1830, the attorney-general filed an information in the nature of a quo warranto against the defendants, charging them with using without lawful warrant or charter the franchise of being a body politic and corporate, and of carrying on banking operations without being authorized so to do. The information charged the usurpation for the space of eight months then last past and upwards, in different forms: as, that the defendants were interested in an association or company for the purpose of receiving deposits, making discounts, issuing notes, &c.; in a bank for the like purposes; that they claimed the privilege of employing a part of their effects in, &c.; to keep an office for the purpose, &c.; to issue bills and notes as private bankers, and to carry on banking operations, such as are usually employed and carried on by incorporated banks.</p> <p>The defendants pleaded, that by an act of the legislature of this state passed 2d April, 1799, entitled “An act for supplying the city of New-York with pure and wholesome water,” they were created a body politic and corporate, by the name of The President and Directors of the Manhattan Company, and were declared to be forever thereafter a body politic and corporate, to have continual succession, &c.” that by the act, among other things, it was enacted that it should and might be lawful for the company to employ all such surplus capital as might belong or accrue to them, in the purchase of public or other stock, or in any other monied transactions or operations not inconsistent with the constitution and laws of this state or of the United States ; that by a certain other act of the legislature, passed 25th March, 1808, supplementary to the act of 1799, it was enacted that the bills obligatory and of credit under the seal of the corporation of the company, which should be made to any person whatever, should be assignable by endorsement by the payee or his assignee, so as to enable the person holding the same to bring an action thereupon in his own name ; and that all bills or notes which might be issued by order of the president and directors for the payment of money to any person whatever, or his order, or to bearer, though not underthe seal of the corporation, should be binding and obligatory upon the corporation, in like manner and with like force and effect as upon any private person,if made byhim,and should be assignable and negotiable in like manner as if made by such private person ; that in and by the act of 1808 it was further enacted that the state should have the right to subscribe any number of sharestobe held in the company not exceeding 1000 shares, at anytime within 10 years from the passing of the act, and the capital stock of the company should be augmented to the amount of the shares so subscribed by the state, and that such act passed in 1808, and the act to which it was supplementary, was declared to be public acts, to be construed benignly and favorably, &c. It was then averred, that on the 25th April, 1809, the state did subscribe toandbecome proprietors of 1000 shares of stock of the company, and from thence hitherto have continued to be and yet are the holders thereof, and duringall that time have received dividends semi-annually declared in respect thereof, by the president and directors of the company, and Doled in the annual choice and election of directors of the company. That afterwards, on the 17th April, 1816, the legislature passed a certain other act entitled, &c., whereby the comptroller was authorized to borrow @200,000, and out of the monies so to be borrowed was required to discharge the debts due from the state to the Merchants’ Bank, the Manhattan Company, the New-York State Bank and the Bank of Albany,provided that the debts should only be paid to such of ike said banks as should loan a sum at least double in amount to the sum paid off. That afterwards, on the 24th April, 1823, another act of the legislature was passed, entitled, &c. repealing a certain portion Prev*ous requiring the register or assistant register in chancery, resident in New-York, to keep an account with the jDan]t 0f New-York relative to the matters mentioned in such act, and making it the duty of such register, &c. immediately upon the passing of the act of 1823, to withdraw whatever sum of money might be remaining to his credit in the bank of New-York, and to depositthe same in the Manhattan Company, in the city of New-York, and that thereafter the account of the register, &c. should be kept with the hank of the said Manhattan Company. It is then averred that the bank of the Manhattan Company in that act mentioned is the bank of the defendants, and that the assistant register of the court of chancery resident in the city of New-York did forthwith upon the passing of the act of 1823, comply with the directions of the same, and from thence hitherto hath deposited the monies belonging to or under the direction of the court of chancery in the bank of the Manhattan Company, and hath kept an account there as directed by the act. That by another act of the legislature, passed 21st April, 1818, entitled, &c. it is amongst other things enacted that if any hank in the city of New-York should make the loan of $1,000,000 contemplated by that act,on terms which, &c. oncondition that a part or the whole of the treasury deposits collected in the city of New-York should be transferred to such bank, it should be lawful for the comptroller, with the advice of the governor, to direct the said deposits to be made in such bank. It is then averred that on the 1st July, 1818, the defendants made the loan contemplated by the act, and that thereupon in fulfilment of the condition the comptroller, with the advice of the governor, did direct the deposits in the act mentioned, to be made in the bank of the defendants, which deposits were accordingly made, and from thence hitherto have been continued to be made in the bank of the defendants to the credit of the treasurer of the state. That by another act of the legislature, passed 27th March, 1821, entitled, &c. it was enacted that certain banks in Albany should be the places of deposit for all monies which might thereafter be in the treasury of the state, except such sums as might be deposited to the credit of the treasurer in the Manhattan Bank, and that it should be the duty of the said banks respectively to make monthly statements of the monies which should be received into and paid out of the said banks, on account of the treasury, and to deliver the same to the comptroller. That by a provision in the revised statutes, 1 R. 8.177, § 7,8,9,10 and 11, it is, among other things, enacted by the legislature that the treasurer shall deposit all monies, &c. in such banks in the city of Albany, as, dec.; that all monies directed by law to be deposited inthe Manhattan Bank in the city of New-York to the credit of the treasurer, shall remain in said bank, subject to be drawn for as the same may be required ? that the comptroller may transfer the deposits in the Manhattan bank to the banks in Albany, in which, &c. so often, &c. but the comptroller may continue such deposit in the Manhattan Bank, if the said bank shall pay a rate of interest to the state for such deposits equal to that paid by the banks in Albany, in which, <fec.; that the monies so deposited shall be placed to the account of the treasurer, and he shall keep a bank book in which shall be entered his account of deposits in, and monies drawn from, the banks in which such deposits shall be made; the said banks shall transmit to the comptroller monthly statements, &c. &c. It is then averred that from the 1st July, 1818, deposits of monies belonging to, or on account of the people of this state, in the city of New-York, have been and continued hitherto to be made in the bank of the defendants to the cz’edit of the treasuz'er, and an account duz'ing all that time kept running between the president 'and directors of the Manhattan Company and the treasurer of the said deposits from time to time made, and of the payments, &c., and that since the 27th March, 1821, the defendants have made and delivered to the comptroller monthly statements Sic.; vjherefore the defendants say that from the time of the passing of the first mentioned act, hitherto, they have been and continued to be and still are a body politic and corporate in fact and in name, and are and claim to be entitled to do all lawful acts, and for all the time in that behalf in the said information mentioned have used, and still do use, the liberties, privileges and franchises of being a body politic and corporate jn jaWj fact and name, by the name of the President and Directors of the Manhattan Company, and by the t° plead and be impleaded, answer and be answered unto, and to have a common seal; and by the same name t0 employ the surplus capital belonging or accruing to the said company, in the purchase of public or other stock, or in any other monied transactions and operation not inconsistent with the constitution and laws of this state, or of the United States, for the sole benefit of the said company; and by the same name to employ apart of the effects of the company, and be interested in a fund employed for the purpose of receiving deposits, making discounts and issuing notes and other evidences of debt, to be loaned and put into circulation as money, by employing therein the surplus capital belonging or accruing to the said company; and claim to have, use and enjoy the liberties, privileges and franchises of being body politic and corporate in law, fact and name, by the name aforesaid, and by the same name to keep an office for the purpose-of receiving deposits and discounting notes and bills, and issuing evidences of debt to be loaned and put in circulation as money ; and also by the same name to issue bills, promissory notes and other evidences of debt for the purpose of loaning them and putting them in circulation as money; and also of issuing notes and bills, and putting the same into public circulation as money, receiving deposits, making discounts, and carrying on banking operations, such as are usually performed and carried on by incorporated banks ; and that they have claimed and yet do claim to have, use and enjoy all the liberties, privileges and franchises to them belonging, by virtue of the several acts and statutes aforesaid, and the other aforementioned premises, as it was and is lawful for them to do, without this, &c.; all which, &c. they are ready to verify, «fee. whereupon they pray judgment, «fee.</p> <p>To which plea the attorney-general put in two replications: 1. That by the act entitled “An act for supplying the city of New-Yorkwith pure and wholesome water/’ passed 2d April, 1799, it was enacted and provided that the Manhattan Company should within ten years from the passing of the act furnish and continue a supply of pure and wholesome water, sufficient for the use of all such citizens dwelling in the said city as should agree to take it on the terms to be demanded by the company; in default whereof the corporation should be dissolved ; and that by an act passed in 1808, supplementary to the act of 1799, it Was further enacted that the time specified in the proviso contained in the seventh section of the act of 1799, should be and thereby was extended to ten years from the passing of the act of 1808, and that although a great number of citizens dwelling in the city of New-York, had at all times since the passing of the act of incorporation been willing and desirous to agree for and take from the president and directors of the Manhattan Company a supply of pure and wholesome water sufficient for the use of such citizens on such reasonable terms as should be demanded by the company, yet the president and directors of the company had not at any time since the passing of the act of incorporation furnished or continued a supply of water sufficient for the use of all such citizens dwelling in the said city 'as were willing and desirous to ageee for and take the same as aforesaid, and this, &c. wherefore, &c.; and 2. That the president and directors of the Manhattan Company have not at any time since the passing of the act of incorporation furnished or continued a supply or any other quantity of pure and wholesome water for the use of all such citizens dwelling in the city of New-York as were willing and desirous to agree for and take the same as aforesaid, and this, &c. wherefore, &c.</p> <p>The defendants demurred to the replications, and specially alleged as causes of demurrer to the first replication, 1. That it is not set forth what citizens dwellingin the city were willing and desirous to agree for and take a supply of water, or that such citizens ever requested the president and directors of the company to furnish and continue to them such supply, or ever offeredto agree for, or take the same on such reasonable terms, &c. or that the president and directors of the company ever had notice of the supposed willingness or desire of such citizens to agree for and take the same ; 2. That the replication is a departure from the information in this ; that in the information it is assumed that the defendants are a body politic and corporate ; and it is alleged that they have usurped certain franchises, &c.; whilst in the replication it is sought to be shown that the coporation has ceased to exist as a body corporate or politic, by reason of an alleged non-compliance with the proviso in the replication referred to ; thereby shewing that the information ought to have been filed against the individuals assuming to act as a corporation, and not against the defendants as a body corporate ; and 3. That no issue capable of trial can be taken thereon. The special causes of demurrer to the second replication are, 1. That it does not set forth or shew any citizens by name, or in particular, who were willing and desirous to agree for and take a supply of water, &c.; or that such citizens ever gave notice of their willingness or desire, or ever requested the president and directors of the company to furnish or continue to them a supply of water on such terms, &c. or in any way whatever ; 2. A departure is assigned as in the special causes of demurrer to the first replication ; and 3. That no issue capable of trial can be taken ; and to both replications the special cause of duplicity is assigned as containing two separate and distinct breaches of the proviso mentioned in the replication ; whereas only one breach ought to have been alleged. The attorney general joined in demurrer.</p> <p>The plea shews that the defendants were duly incoporated, and that they have good title to be a corporation. The principal question, however, is whether the defendants have a right to exercise the other franchises claimed in the plea, viz. to carry on banking operations. The original act of incorporation is entitled “ An act for supplying the city of New-York with pure and wholesome water.” The title does not import that the act was passed for the purpose of conferring banking powers; but if it does not help, it cannot hurt. 2 Cranch, 386, 401, 2. There is no prohibition in the act against banking and in 1799, when this company was incorporated, all- corporations authorized to carry on monied operations might engage in banking business. 15 Johns. R. 370. The right to pursue such business was common to all the community until 1804, when it was partially restrained. In 1818, it was prohibited as well to' corporations not expressly authorized, as to individuals. By the 8th section of the act of 1799, the company were empowered to employ their surplus capital in any monied transactions or operations, not inconsistent with the constitution and laws of this state or of the United States, and this power being conferred previous to the passage of the restraining acts, gave the right to carry on banking operations: for as Lord Coke says, charters must be construed as the law was understood when the charters were granted. 2 Inst. 282. The defendants were authorized to employ such surplus capital “ for the sole benefit of the company/’ The power was granted not as subsidiary to the duty of supplying the city with water, but solely for the benefit of the company. When the charter was granted it was understood to confer banking powers ; its terms are broader and more comprehensive than that of the Utica Insurance Company, which it was admitted by C.J. Thompson, would have conferred the right to bank, but for the restraining acts, 15 Johns. R. 381. It cannot be said that the company could not employ their surplus capital in banking until alter they had supplied the city with water; their capital was S3,000,000; by the original act of incorporation they had 10 years with which to supply the city with water, and this limitation by the act of 1808, was extended for 10 years longer. During this period of 20 years, they were not obliged to permit their capital to lie unemployed ; and whatever sum was unapplied to the operation of bringing water into the city, was surplus capital, within the meaning of the act. In 1808, the legislature knew that the city had not been supplied with water, and yet they authorize the company to take mortgages for debts owing to them, and expressly give effect to bills or notes which should be issued by them payable to order or bearer, though not under the seal of the corporation. This provision shows that the legislature knew that the company were then employing their capital in banking operations, and it removed all doubt as to their right to issue bills payable to bearer, which had existed under the act concerning prommissory notes. 1 R. L. 151. It had been SUpp0Se(j that the act concerning promissory notes did not include notes made by corporations, although it did notes made to them. The English statute, 3 and 4 Ann, ch. 9, embraced both, ours did not. In 1 Cowen 513, it was mti-(J ,] mated that a note by a corporation would be good, but thejf jj opinion was not called for by the case under consideration ; ^ the act of 1808 put the question at rest, as to this company. That the legislature knew at the passage of the act of 1808, that the company were employing their capital in banking operations, and that they recognized their so doing as a proper and legitimate exercise of their powers, is manifest from the provisions of the 9th section of that act, by which the company are authorized to transfer the duty of supplying the city with water to the corporation of New-York; and yet by the same section, notwithstanding such transfer, although the period of its existence as a corporation was limited, it was to endure for 30 years, and for what possible purpose continued other than to carry on its banking operations, is inconceivable. Besides, by this act the capital of the company is extended 1000 shares, and the right claimed by the state to become stockholders to that amount, as the consideration probably for the privilege granted ; and in pursuance of the right thus claimed, the state took the stock, and from that time until now have been partners with the defendants and participated in the profits of the banking business. Can it now be permitted to the state to say that the power claimed by the defendants does not exist 1 All the acts of the legislature, subsequently passed, set forth in the plea recognize the defendants as an existing corporation and a banking company. Cowp. 805. 2 New Hamp. R. 121. 10 Mass. R. 155. Coke Litt. 295. They are legislative constructions of the original act of incorporation, and being in pari materia, are to be construed together. Those acts also operate as a confirmation ; a confirmation either express by deed or implied by law. Coke Litt. 295. 3 Harg. St. Tr. 545. 8 Cobb. Parl. Deb. 1039. In the case of The King v. The City of London, the defendants pleaded various recognitions and confirmations by the crown, and they were admitted to be well pleaded. 3 Burr. 1870. 3 T. R. 232. These statutes would of themselves have conferred banking powers, had they not been granted by the original act. No particular form of words was necessary to confer such powers, it was only necessary to shew the licence or consent of the government. 10 Co. 30. 1 Kyd, 39, 41, 63. Angel & Ames, 40, 45. 2 Johns. C. R. 324. 2 Wendell, 133. Dyer, 100, a. Cro. Eliz. 35. 4 Peters, 502. Com. Dig. tit. Franchise, F. 6. In the incorporation of a bank it was formerly not usual to define or limit its powers; such powers were given as were usually exercised by banks, and a general act declaring a corporation to be a hank, would confer all the usual powers of a bank. By such general words was the Bank of England ci’eated, as was also the Bank of America, in this state. It was not until 1825, that the legislature defined and limited the powers of corporations created for banking purposes.</p> <p>After the long continued possession and use of these franchises with the knowledge and assent of the legislature, it is too late for the government to question the title of the corporation. In the case of the Utica Insurance Company, the legislature did interfere and direct a quo warranto; whereas in relation to this company they authorized a negotiation with them, treating them as a bank, and directing the deposits of the public monies in its vaults. The franchises sought to be taken away have been exercised for 30 years; and although in England such a lapse of time would not be held sufficient to authorize the presumption of a charier, it should so be held here. As between individuals, admissions and recognitions, such as are set up in this case, would be conclusive, and why should not the same principle apply to the government ? Cotemporaneous and long continued usage is evidence against the crown as to the claim asserted. 2 Inst. 282. In Massachusetts it has been held that a corporation will be presumed, 7 Mass. R. 547, 12 id. 400; and in Maryland it has been adjudged, where corporate powers have been exercised for a length of time with the knowledge of the government, a grant will be presumed. 5 Harris & Johnson, 122. Acts of parliament are the highest species of evidence, and recitals or admissions of facts contained in them, are evidence to prove the existence of such facts against individuals; and if so, a fortiori are they against the government. Stark. Ev. part 2, § 41, 43. Comyn’s Dig. tit. Franchises, B. C. Coke Lit. 19, b. 4 Maule & Sel. 532. 2 Str. 1066. The sovereign authority of the state not only spoke of this company as a bank,-but in the regulations for conducting its financial affairs made it one of its agents, and in addition partook of the profits accruing from its business as a bank. Corporations are affected by the acts of their officers, 12 Wheat. 70, and a state is estopped by its admissions. 10 Mass. R. 155. In England an information would not be permitted to be filed against a corporation which had been in the exercise of its functions for 20 years. Angel & Ames, 484. 4 Burr. 1963. 3 T. R. 210. Cowp. 59.</p> <p>The restraining acts passed in 1804 and since do not apply to this company, and cannot impair or affect their rights. The first restraining act, passed in 1804, it is insisted, did not apply to incorporated companies, although this court held otherwise in the case of The People v. The Utica Insurance Co. 15 Johns. R. 358. The language of the act is, that no person unauthorized by law shall, &c.; it is a. penal statute, and should be construed strictly ; it takes away or abridges pre-existing common law rights, 7 Mass. R. 523; 16 Johns. R. 7; 2 Stra. 1241; Esp. on Penal St. 19, 20; 4 Mass. R. 471; 14 Johns. R. 206; but, at all events, that act did not affect the defendants, and was not intended to affect them, as the legislature declared by a provision in an act passed during the same session of the legislature, incorporating the Friendly Union Society in the city of Albany, 3 Laws of N. Y. 611, Web. & Sk. ed. The act of 1804, re-enacted in the revision of 1813, 2 R. S. 234, has since been repealed, but the saving clause, exempting this company from its operation, has never beeen repealed. The next restraining act, passed in 1818, expressly saves rights previously granted to all incorporated companies. The revised statutes, (1 R. S. 712,) embody the provisions of the acts of 1804 and 1818, but they cannot affect the rights of incorporated companies which had then become vested; indeed, it is supposed that the 5th section of the repealing act, 2 R. S. 779, contains in effect the saving clause of the act of 1818. If it shall he said that the provision in the revised statutes that no corporation created or to be created and not expressly incorporated for banking purposes shall carry on banking operations, 1 R. S. 600, § 4, is stronger than any previous provision on the subject, the answer is that it cannot affect this corporation, which, in the same act, 1 R. S. 177, § 9, is recognized as a bank, and the public monies directed to be deposited in its vaults. The provision was not intended to apply to this or any other pre-existing corporation not affected by prior restraining acts ; but if so intended is unconstitutional and void, as interfering with the vested rights of the company. Full force and effect can be given to the revised statutes, without making them retrospective by applying them to corporations, in the ¿reation of which, the right was reserved by the legislature to modify, alter or repeal the charters granted, or to such corporations as might, in consequence of the repeal of the old restraining law, claim the right of banking; but it cannot be extended to this corporation under the circumstances of this case.</p> <p>The counsel insisted that the replications were bad, and urged that the prosecution being of a penal character, seeking the enforcement of a forfeiture, the defendants had aright to insist upon the utmost strictness in pleading, Com. Dig. tit. Pleader, C. 176; Esp. on Pen. Stat. 19, 20; 2 Mass. R. 444; 4 id. 471; that the allegations in the replications were too general—the names of the citizens who were willing to agree for a supply of water should have been given, so that the defendants might have taken issue upon the allegations, 1 T. R. 752; 19 Johns. R. 349; that notice of the willingness to take water, or a request to be supplied with it should have been averred, 1 Chit. Pl. 285, 291; Com. Dig. tit. Pleader, C. 69, 73; Lawes on Pl. 207; Cro. Eliz. 250; Cro. Jac. 433; 2 Lilly's Pr. Ent. 239; 5 Vin. Abr. 193, tit. Condition, D. B. 270, pl. 11; 273,pl. 28; 275, pl. 33; Bac. Abr. tit. Condition, O. 2; Comyn's Dig. tit. Condition, L. 8, L. 10; 1 Saund. 287, n. 16; that the replications aver no material fact, on which a certain or sufficient issue can be taken ; had issue been taken, it would have been an issue on an affection or emotion of the mind, not on a fact susceptible of trial, 19 Johns. R. 372; Com. Dig. tit. Pleader, G. 7; Lawes on Pl. 207; 1 Brownl. 231; that the replications are double and multifarious, a plaintiff not being at liberty to reply double without leave given. 2 R. S. 356, § 27. That the breach is larger than the condition on which it is founded—the proviso being that the defendants, shall furnish and continue a supply of pure and wholesome water sufficient for the use of all such citizens as shall agree to take it, and the .breach is,' that the defendants did not furnish a supply to all such citizens as were willing and desirons to agree for and take the water, 1 Chitty’s Pl. 293; 13 Serg. & Rawle, 186; that the plea shews a valid dispensation and waiver by the legislature of all causes of forfeiture under the proviso, arid though the duty to supply the city with pure and wholesome water may still continue, because that was one of the objects of the act of incorporation, the attorney general cannot, as he now attempts to do, avoid the charter for want of a strict compliance with the proviso, but must proceed against the corporation upon the ground of a non-user or neglect oí general duty, for such a length of time as may be sufficient to produce a forfeiture, when such time shall have elapsed. In support of the last position, the counsel insisted upon the doctrine of waiver for forfeitures incurred by tenants for non-payment of rent, where the landlord after notice sues or distrains for rent in arrear, and cited 3 Co. 65, a; Croke Eliz. 528; 5 Cowen, 448; 1 Ball & Beat. 554; 3 T. R. 151. They insisted that the evidence of knowledge by the government of the non-performance of the proviso, and of subsequent recognition of the defendants as a corporation, was much stronger and more conclusive than in the cases of landlord and tenant, cited by them; as here, the state since 1808 had been corporators, participating in the management of the concerns of the company and sharing in its profits ; that under such circumstances, the government should not be allowed to allege ignorance of the cause of forfeiture, if any existed, and on the contrary, should be concluded by their acts, as upon the faith of them the public had been induced to vest their pzupuriy in the stock of the company. That nothing could be claimed for a non-compliance with the proviso contained in the original act, extended by the subsequent act until 1818; that if the condition was not complied with at the expiration of the limited time, it could not subsequently be performed, and all that remained for the state was to enforce the forfeiture. Instead of doing so, the state had repeatedly recognized the company as an existing corporation, and thereby waived the forfeiture. The condition therefore was gone, and the only ground upon which the corporation could now be proceeded against was for non-user or neglect of duty in not accomplishing the objects of the incorporation.</p> <p>The replications are well pleaded, and shew that the defendants have forfeited their corporate privileges. First. They have forfeited them by not performing the condition upon which the continuance of the corporation depended. In every grant creating a corporation, there is an implied condition that the object of the incorporation, or purpose for which it was created, shall be accomplished ; and on failure, that the corporation shall or may be dissolved. Here, however, there is an express condition or proviso extending down to 1818, (for the limitation in the act of 1808 was rather an extension of the old than the creation of a new restriction)—. a condition in deed, and not merely in law. In grants from the sovereign authority of a state, words will be construed to create conditions which will not be so considered in private grants. Comyn’s Dig. tit. Condition, A. 2, 3. Littleton, § 328, 29, 30. What is said in the replication as to the willingness and desire of the citizens to take a supply of water, is but inducement to the breach that the defendants have not furnished good and wholesome water to such as were ready and desirous to take it; the breach is as broad and no broader than the proviso.. It was not necessary to name the citizens who, &c. it is enough that the breach covers the words or the spirit of the condition. The pleadings do not shew that the corporation have ever done any thing to carry the objects of its incorporation into effect, and under such circumstances it was not necessary to specify names. Besides, it is a general rule, where a subject comprehends multiplicity of matter, that general pleading is sufficient. 5 Johns. R. 172. 1 Bos. & Pul. 640. 8 T. R. 459. 1 Chitty's Pl. 240. Notice or request need not be averred, neither being parcel of the condition; nor did the facts lie peculiarly within the knowledge of the party pleading; on the contrary, they were emphatically within the knowledge of the defendants. 1 Chitty's Pl. 320. Com. Dig. tit. Pleader, C. 73, 75. It was the business of the defendants to set Up a want 0f notice, if that would have been an excuse for them; it was sufficient, on the part of the prosecution in the first instance, to aver a breach in general terms. An issue on the allegations in the replication would not have been an issue on an affection of the mind, as insisted on the other side. The defendants might have rejoined that they had furnished water to all who were willing to take, and the rest would have been matter of evidence, not of pleading; and in such case it would have been proved that a great number of citizens had applied for water and been refused. The objection that the replications are double cannot be sustained; a quo warranto being in the nature of a criminal proceeding, the attorney general may plead or reply as many distinct causes as he thinks proper. The statute, in relation to replying double, does not affect criminal cases; it is an enabling statute, and does not take away rights previously existing. At all events, to reply double without leave is' an irregularity which can be taken advantage of only by motion, and not on demurrer, which assumes that though each replication is a good answer to the plea, both united are not such an answer. Nor is the breach larger than the condition. On the part of the prosecution, it alleges an omission on the part of the defendants to do what it is contended is the true intent and meaning of the act of incorporation ; if such is not its spirit and intent, then the breach may be- broader than the condition: that presents the question, what is the construction of the act ?</p> <p>But the replications are sufficient to shew the non-user oí the franchises, no matter from what cause. The defendants have failed to perform the purposes for which they were incorporated, and although it may have happened without their fault, the corporation must be dissolved; it dies a natural death. The pleadings admit that the defendants have failed to furnish a sufficient or any quantity of water, the express condition and the only object of their creation and existence. 4 Mod. 57, 8. 12 id. 17, 18. Skinn. 310, 11. 9 Cranch, 51, 2. Comyn’s Dig. tit. Franchises, 93. 12 Mod. 271. 1 Ld.Raym. 499. 5 Mass. R. 230. 5 Johns. C. R. 379. 19 Johns. R. 456. 3 T. R. 244. Angel & Ames, 501, 10, Wilcock on Corp. 344. Independently of the condition, it may be dissolved now for non-user of its franchises. Since 1818, there has been no legislative extension or dispensation to effect the main object of the incorporation, to wit, the supplying the city with pure and vtdiolesome water; every other object was incidental and consequential. The corporation was created upon the trust that the end of its institution should be accomplished. It is no answer for the defendants to say that they could not accomplish it; if they could not, no matter for what cause, they ought not to exist. It is said, however, that the legislature have dispensed with or varied the condition by the recognition of the corporation after its known failure to supply the city with water; that the state had become a fellow corporator, and of course had notice of the forfeiture. The speaking, by the legislature, of this company as an existing corporation does not shew that they Imew of the forfeiture, nor does the fact of the state being a stockholder shew such knowledge. When a state becomes interested as part owner in a company, they are not stockholders in their sovereign capacity, but quasi individuals. The people of the state cannot be prejudiced by such a transaction. 9 Wheaton, 904. Nor can an act of the legislature, passed for a collateral purpose, as for instance directing the financial officers of the state to deposit the public monies in a particular bank, be considered a dispensation of a condition or proviso ; it is a mere recognition of a coporation de facto, which may exist until abrogated. The defendants also forfeited their corporate privileges by an abuse of them, by carrying on banking operations, which they were not authorized to do. Exercising powers not granted is a cause of forfeiture, Comyn's Dig. tit. Condition, R.</p> <p>The plea is bad, because it does not shew a performance of the condition upon which the continuance of the corporation depended. The defendants are called upon to shew by what warrant they claim the liberties, privileges and franchises exercised by them in other words, to shew a present and subsisting right. • It is no answer to say they have a charter, if that charter be granted on condition, unless a compliance with the terms of the condition be shewn. Comy n’s Dig. tit. Quo Warranto, 2, c. 2. 2 Inst. 279, 282. 2 T. R. 566. Cro. Jac. 313. The information asserts no right on the part of the people, but calls on the corporation to shew their title, a present title, embracing of course a performance of every condition. The act of 1799 is declared to be a public act; the court, therefore, will judicially notice its contents. The grant is made upon a condition, and in default of performance, the act declares that the corporation shall be dissolved ; nofthat the charter shall be forfeited, but that the corporation shall be absolutely dissolved, and at an end. Instead of averring performance, the plea does not even pretend a performance, and in addition admits an abuse of the franchises granted.</p> <p>Whether the defendants are now a corporation or not, they have usurped the banking privileges exercised by them. No such power is conferred by their charter; and no one on reading the act can believe that it was the intention of the legislature to confer it. If it exists it was obtained by fraud. The defendants are called upon to shew their right to the banking powers exercised by them for eight months preceding October, 1830. They answer by setting up. various acts of the legislature recognizing them as a bank, and allege that they have exercised all the powers of a bank from the commencement of their charter. The answer to which is, that usurpation confers no right against the sovereign power of the state. Again; they say that the company were expressly authorized to employ their surplus capital in any monied transactions or operations not inconsistent with the laws. Admitting it to be so, no authority was conferred to employ their whole .capital in banking, or in any other business different and distinct from the main object of the act. Surplus capital is that which is left unexpended of the whole capital, after the purposes have been accomplished for which the institution was created. The power to employ it is incidental, or consequential, and when the main object fails, the incident also fails. The construction given by the defendants to this power would authorize them to insure, to trade, and in short to engage in any business in which money could be advantageously employed ; such construction it is contended is unwarranted, especially when applied to amere collateral and incidental power. A corporation is an artificial body—a creature of the legislature; it has no powers but such as are given to it, either at the time of its creation or subsequently, or as are incidental to those granted; it can have no capacities other than such as are necessary to carry into effect the purposes for which it was established, and no power is to be conceded to it by implication but such as is indispensable to the accomplishment of the main object of its creation-; and when the mode of exercising its powers is prescribed, such mode cannot be departed from. 2 Cowen, 709. 5 Wendell, 217. 5 Conn. R. 560. 4 Wheaton, 636. 4 Peters’ 168. 3 Barn. & Ald. 1 Angel & Ames, 139. 2 Cranch, 166. 2 Johns. R. 109. Had the legislature intended to have created this company a bank, they would have said so, and used appropriate terms, as had previously been.done in the incorporation of the New-York Bank, the Albany Bank and the Bank of Columbia. Every thing contained in the charter of this company may have full efficacy given to it without conceding to it the right to bank. It was created for the purpose of supplying the city of New-York with pure and wholesome water; that was the specific object of its incorporation, and any general terms found in its charter must be construed with a view to such special object. 15 Johns. R. 383. 9 Cowen, 501. 4 Peters, 168, 171. The company-may do whatever is necessary to further the main purpose of the institution, but beyond that they cannot go, or their power will be unlimited. The powers of this company, instead of being broader, are more limited than those of the Utica Insurance Company, that being authorized to employ all its capital, this only its surplus; and yet that charter was adjudged not to confer banking powers. 15 Johns. R. 358. The power of employing surplus capital cannot upon any construction extend to the receiving deposits and issuing bills or notes and putting them in circulation as money; those are modes of operating upon credit,not employing capital already existing. Besides, the plea does not shew that there is a surplus capital; it should have been averred that the main object of the act had been accomplished, and that a surplus was left; and notwithstanding the defendants claim not only to use a surplus not- shewn to exist, but to use their whole capital in banking operations.</p> <p>The act of 1808 did not confer banking powers. The sixth section, which is the only one affecting this question, is conditional, and confers no powers, but in the event of a transfer to the corporation of New-York of the duty to supply the city with water; which transfer is not pretended to have been made. But if unconditional, it only extended to such bills and notes as might be issued in carrying into execution the specific powers granted to the corporation, and not to bills and notes issued in the way of banking. It did not authorize the engaging in any new business not warranted by the charter ; it only gave new means and facilities of exercising the powers previously granted. At the passage of this act it was doubted whether a corporation could bind itself by simple contract; and to obviate that doubt, the power to issue notes was given, not for banking purposes, but for the more convenient transaction of their business as a water company. Subsequently, in Danforth v. The Schoharie Turnpike Road Company, 12 Johns. R. 227, it was held that assumpsit would lie against a corporation on an implied promise ; and in Mott v. Hicks, 1 Cowen, 513, it was adjudged that a corporation may bind itself by contract without its corporate seal, and give a promissory negotiable note, while in England, as late as the case in 3 Barn. & Ald. 1, it was held that a corporation can be bound only by seal. Every corporation in this state may therefore by force of the general law, contract by promissory negotiable notes in relation to the legitimate objects of their several incorporations, but having that power does not authorize them to engage in a business not within their charters. So here, the authority conferred upon the defendants by the act of 1808, to issue bills and notes payable to order or bearer, did not authorize them to engage in banking. There is a material difference between the right to issue negotiable paper and the right to carry on banking operations; every individual may do the one, but not the other. The fact of the state becoming a stockholder does not prove that the legislature considered this a banking company ; it was a water company, and there is nothing to shew that the dividends paid to the state were derived from banking operations. The other statutes set forth in the plea confer no additional franchises upon the corporation ; they authorize the comptroller to borrow money from the corporation ; they call it a bank, and authorize deposits in such bank. The act authorizing deposits give the corporation the capacity to do the particular thing authorized, i. e. to receive the ■ deposits of the state, but not the deposits of individuals, or to exercise any other banking power. Directions to make the deposits of the state with a bridge or ferry incorporation, or with a mercantile firm, would not have conferred banking powers upon such corporation or firm. License to an alien to accept a grant of land gives power to his heirs to inherit in that particular case, but not from any one else. 20 Johns. R. 706. Nothing is to be inferred from the company lending money to the state, for that was within the scope of their legitimate powers ; nor can the calling them a bank confer by implication banking powers—it was a mere misnomer, the corporation were incidentally so named, and not for the purpose of designating its character, or conferring powers upon it. Nor can it be pretended that any thing contained in those statutes shall operate as a confirmation. A confirmation can be only by express grant; it presupposes a previously existing right. Here was no previous right—■ there was nothing to confirm.</p> <p>If the defendants were ever warranted in carrying on banking operations, they are now prohibited from doing so by the restraining act. Without waiving the acts of 1804, 1813 and 1818, the provisions of the revised statutes are conclusive upon this question. These statutes, in reference to this subject, were passed in 1827, and went into effect in 1828. The 3d section of 1 R. S. 712, declares that “no incorporated company without being authorized by law, shall employ any part of its effects or be in any way interested in any fund that shall be employed for the purpose of receiving deposits, making discounts or issuing notes or other evidences of debt to be loaned or put in circulation as money;” also, in page 600 of the same volume, section 4, it is enacted that “no corporation created or to be created, and not expressly m~ corporated for banking purposes, shall by any implication or construction be deemed to possess the power of discounting bills,” &c. It has been said on the other side, that these pro* apply to the Manhattan Company, because in the same portion of the statutes at page 177, § 9, the eompany js ca]]e(j a bank, and deposits of the public monies are au-. thorized to be made in the Manhattan Bank. This again is but an incidental naming in the statutes of this corporation as a bank; and on a subject relating to the duties of the treasurer of the state, having no reference whatever to the conferring of banking powers upon the company. But if there is a conflict between these different parts of the-statutes, the provision in page 177 must yield to the provisions in pages 600 and 702, for it is expressly declared “ that if any provisions in the different parts or chapters are repugnant to each other, that which shall be the last in the order, (herein before declared) shall prevail; and so much of any prior provision, as is inconsistent with such last provision, shall be deemed repealed thereby.” 2 R. S. 778, § 12. Again, it is said that any act restraining this company from banking, is unconstitutional, as interfering with vested rights and violating the obligation of a contract. Previous to the restraining acts, banking was a common law right in individuals, but not in corporations. Corporations have no common law rights; all the rights which they possess are such as are - granted, or necessarily incident to carry into effect the objects of their incorporation. But assuming that independently of the restraining acts of 1804 and 1818, this company had the same right with individuals to employ their surplus capital in banking, the revised statutes do not violate any vested rights. The company had authority by the original act of incorporation to employ its surplus capital in the purchase of public or other stock, or in any other monied transactions or, operations, not inconsistent with the constitution and laws of the state. The right was to be exercised subject to the laws of the state, as well those existing at the time of the passage of the act of incorporation as such as might subsequently be enacted. The clause, therefore, is equivalent to an express reservation of the right to modify; and the modification applies not to the main object for which the incorporation was minted,but to incidental and collateral powers, which of course are subject to such alterations in the laws of the state as in the opinion of the legislature public policy and the general welfare demand. Had the power of banking been expressly granted, it would have been a part of the contract, and the legislature could not have interfered with or impaired it. , But not so here ; the company claimed the power to bank as merely incidental, having no greater or better rights in this respect than had any individual in the community. But even in relation to powers specifically granted to corporations, the legislature have the right to pass laws materially affecting their interests. Have they not the right to regulate the rate per cent, which may lawfully be demanded on the loan of money ? May they not tax banks 1 And cannot this be done as well in relation to existing as to future corporations. The legislature also have the constitutional right to modify powers granted to corporations and to regulate their exercise, although they cannot abolish or abrogate them. 4 Wheaton, 235. 8 Mass. R. 445. 4 Cowen, 384. 9 id. 506. Thus the act passed in 1817, authorizing banks to take an interest of seven per cent-um per annum on loans, Laws of 1817, p. 306, was repealed in 1818, Laws of 1818, p. 243; and by the last statute, incorporated banks refusing to pay their bills and notes were subjected to the payment of interest at the rate of ten per cent. So also in 1813, banks as well as individuals were restrained from issuing bills of a denomination less than one dollar. 2 R. L. 234, Corporations like individuals are subject to the control of the legislature ; their rights are not more sacred than those of individuals. The restraining act does not impair any' powers specially granted to the corporation, nor any necessary to its existence or the accomplishment of the main object for which it was created. If the legislature have the power to restrain idividuals from banking, they may restrain corporations, unless expressly created for banking purposes.</p>

This was an action of assumpsit, tried at the Westchester circuit in September, 1830, before the Hon. James Emott, then one of the circuit judges. The declaration was in covenant on a sealed note for $575, made by the defendant, payable on demand to “ James Field, treasurer to the purchase meeting school fund or his successor,1’ bearing date “4 m. the 1st, 1817,” and described in the declaration as having been made on the 1st April, 1817.

Error from the superior court of the city of New-York. A suit was brought in the name of Thomas Robert against the insurance company on three policies against fire, bearing date 5th June, 1827,whereby certain buildings were insured for the term of five years.

Error from the superior court of the city of New-York. The Bank of Niagara sued the Mechanics’ Bank, and declared in assumpsit for money had and received, money lent, See. On the' trial, it appeared that the Bank of Niagara held a bond and mortgage against one A. S. Clarke, bearing date 1st March; 1819, given to them to secure the payment of $2250.

Error from the Monroe common pleas. Cady and five other persons, describing themselves as “ trustees of the first congregation society in Mendon,” sued Green in a justice’s court, and declared against him in trespass for entering their close, and removing, taking and carrying away the corner stone of their meeting-house, the contents, records, money, &c. The defendant pleaded the general issue, and gave notice that he would prove that no such coporation existed, and that the…

This was an action of covenant, tried at the Schoharie circuit in November 1830, before the Hon. James Vanderpobl, one of the circuit judges.

This was an action of assumpsit, tried at the Allegany circuit in October, 1829, before the Hon. Addison Gardiner, one of the circuit judges. The plaintiffs declared as the hearers of two promissory notes for about SI97, made by the defendants, bearing date in 1826, payable to Hosea Wetherly or hearer, and proved the signatures of the defendants.

Mandamus, The relator having obtained an alternative mandamus, commanding the judges of the common pleas of New-York to sign and seal a bill of exceptions which had been tendered to them, or to shew cause, the judges made return that they refused to seal the bill without the same should contain all the evidence relating to the matters of law therein excepted to, and which they alleged the bill did not contain.

<p>A defendant in error, against whom there is judgment for costs, is not subject to arrest or imprisonment, unless liable within the 4th section of the act to abolish imprisonment.</p>

The defendant was arrested on the 5th June, 1832, on a ca. sa. on a judgment thirteen years old. He applied to be discharged from arrest on producing a discharge, as an insolvent debtor, granted to him in 1819, after the entry of the judgment. The plaintiffs attacked the regularity of the proceedings in obtaining the discharge and the validity of the discharge itself.

<p>In an affidavit to found or resist a motion for change of venue, the party must state that his witnesses ara each and every of them material, and that with, out the testimony of each and every of them, he cannot safely proceed to trial.</p>

<p>Where it appears from a bill of particulars that the damages claimed in a suit in the common pleas is less than $250, a certiorari cannot issue to remove the cause into this court.</p>

<p>When a suit against two defendants is intended to he commenced by the fil. ing and service of a declaration, and a copy of the declaration is served upon only one of the defendants, the plaintiff has no right to enter a nolle prose, qui as to the other, and to amend by converting his declaration into a declaration against the defendant alone who had appeared although the suit be on a joint and several promissory note.</p>

<p>A common lam certiorari can issue only when allowed in open court, except when issued ex debito justifies.</p>

<p>On a motion for a certiorari in open court, the party, against whom the proceeding is had, is not allowed to controvert the allegations of the party applying ; he is at liberty only to present such questions of law as in this stage of the proceeding properly arise.</p>

Sheriffs’ fees on execution. Two executions on the judgment obtained in this cause were issued, one to New-York, the other to Chenango. The sheriff of Chenango was directed to levy on and advertise several tracts of land, which he accordingly did.

<p>In a suit on a joint and several bond against several defendants who defend separately, if the plaintiff settles the suit with one or more of the defendants without the concurrence of the others, he is liable to such others for the costs of the defence, and"a rule will be granted that he pay such costs, unless he proceed to the trial of the issues joined with such defendants or consent to judgment of discontinuance with costs.</p>

On the eighth day of September last, M’Creedie, one of the above defendants, filed a bill in chancery against E. Senior, the other of the above defendants, and one R. Senior, alleging that they were his copartners in trade, charging them with having fraudulently removed goods belonging to the firm, with the intent of depriving some of the creditors of the firm of their just claims, and praying an injunction restraining them from removing goods, collecting debts, &c. and…

The defendants obtained an order for the plaintiff to shew cause why he should not deliver a bill of particulars, and that in the meantime all proceedings on the part of the plaintiff stay, A peremptory order was subsequently granted, but the defendants not serving it upon the plaintiff, he entered their default for not pleading, which was now moved to be set aside as irregularly entered.

J. Hamms moved for relaxation of costs. The defendant was entitled to treble costs, but the taxing officer instead of ascertaining the amount by adding to the common costs seventy five per cent., had treble the amount of the common costs, and faxed the bill accordingly, lie cited 2 R. S. 617, § 24, and Tidd's Pr. ck. 40, tit. Costs, 908.

<p>Where, to a declaration containing three special counts, and also the common money counts, the defendant demurred specially to the special counts, and pleaded to issue on the common counts, and the plaintiff carried down his cause to trial on the issues of fact, and obtained a verdict, and after-wards the demurrer was decided in favor of the defendant, it was held, that the demurrer being special, and decided in favor of the defendant, for defects of form in the counts demurred to, he was not entitled to costs upon such judgment in his favor.</p> <p>It seems, had the counts demurred to been held had in substance, that the defendant would have had his costs.</p> <p>So also it seems had the demurrer embraced the whole cause of action, the defendant would have been entitled to judgment in his favor, and to the costs of the demurrer, and the plaintiff would not have been entitled to the costs of the issues of fact.</p>

The defendant, sued as an administrator, suffered a default, and the plaintiff taxed costs against him without obtaining an order of the court, entered judgment and issued an execution, without previous leave from the surrogate, and before the settlement of the defendant’s accounts as administrator. The defendant moved to set aside the judgment and execution. The plaintiff read an affidavit for the purpose of shewing unreasonable delay in payment.

<p>The defendant applied to the circuit judge, before whom this cause was tried, for a new trial on a case made, which was argued in July, 1832. On the 22d August the judge filed his decision denying the new trial at the clerk’s office in Geneva. In September the defendant appealed to this court, by giving notice to the plaintiff, and entering into the bond prescribed by statute, Laws of 1832, page 188, § 4 and 1, and in October term the plaintiff entered judgment upon the verdict in his favor, which the defendant now moved to set aside as irregularly entered.</p>

<p>A party against whom a motion is made, objecting to its being granted on the ground of short notice, is notwithstanding entitle to costs for appearing to resist.</p> <p>So also a party is entitled to like costs for appearing at a general term, and resisting a motion which should have been made at a special term.</p>

The defendant moved to consolidate two suits prosecuted against him on promissory notes. The motion was granted, and the defendant asked for costs of motion.

A motion was made in this case to set aside an inquest taken at the circuit in the afternoon, out of its order on the calendar, the court having been in session in the morning, taken a recess, and again proceeded to business.

In May, 1832, the defendant executed a bond and warrant of attorney, authorizing the confession of a judgment in the penal sum of $10,000, the condition of the bond being for the payment of $5000. On the 10th of August, the defendant died. On the 20th August, letters of administration were granted on his estate.

<p>A rule of this court ordering a discovery of books, papers and documents, is a substitute for a bill of discovery in chancery; the remedy extends to all evidence of a documentary nature relating to the merits of a suit, whether on the part of the prosecution or defence.</p> <p>Costs of such applications will be allowed where the discovery has beers sought of the party and refused; but not otherwise.</p>

<p>A party brought into court on a rule to shew cause, which he resists, is entitled to charge a retaining fee as part of his costs.</p> <p>The costs of a precept, if the sum demanded does not exceed $350, can be taxed only at the common pleas rate of costs.</p> <p>Prospective costs may be taxed subject to deduction on payment. An attorney’s and counsel fee of two dollars is taxable on a motion for precept.</p>

Judgment as in case of nonsuit. The defendant moved for judgment as in case of nonsuit, for the neglect of the pontiff to bring his cause to trial. The plaintiff objected that the motion was too late, this being the second special term since the circuit, and no excuse being offered for the delay in making the motion.

M. T. Reynolds moved for an ex-oneretur to be entered on the bail piece, on the ground that the judgment in this case being founded upon contract, the defendant is not liable to be arrested or imprisoned, since the passage of the act abolishing imprisonment for debt, Laws of 1831 ¡page 396 5 and he insisted that in conformity to the settled practice of the court, ordering an exoneretur when it is shewn that a party is not subjected to arrest, as where he has obtained a…

<p>In a replevin suit, where a replevin bond has been executed, the defendant is not entitled to security for costs, although the plaintiff be a non-resident.</p>

Costs in quo warranto. An information in the nature of a quo warranto was filed against the defendant, charging him with exercising the office of constable without warrant. The defendant had judgment, and taxed double costs against the relator, who appealed from the taxation.

<p>A party who attends before a circuit judge or commissioner on the notice of his adversary, and succeeds in opposing the proceeding there had, is not entitled to a rule for costs.</p>

<p>An attachment does not lie against an administrator for a demand against his intestate, under the act against absconding, concealed and non-resident debtors.</p> <p>The want of jurisdiction may he objected, even after the appointment of trustees.</p>

The plaintiff having obtained a verdict for $7000 damages in an action of slander, and the defendant having made a case with a view of moving for a new trial, on the ground of the excessiveness of the damages; and having obtained an order from the circuit judge before whom the cause was tried, staying the proceedings until the case could be heard, the plaintiff now, on the facts set forth in the case, and on an affidavit of the great wealth of the defendant, applied for a…

<p>A bank which by law is limited to six per cent, interest upon all discounts, is entitled to recover at the rate of seven per cent, per annum from the time that the debt becomes due.</p>

The plaintiff moved to amend his declaration by changing the venue, the action being trover for the taking property, and he having by mistake laid the venue in a county where the cause of action did not arise.

<p>Instead of an alternative mandamus to a court of common pleas to vacate a rule ordered by it, this court in the first instance grants an order to shew cause.</p>

<p>A supersedeas to an attachment raider the absconding, concealed and absent debtor act, will be granted on shewing a settlement between the attaching creditor and the debtor, although trustees have been appointed; the rights of the trustees however will bo protected, and time will be given to other creditors to come in.</p>

In this case Robert effected two policies of insurance on buildings in the city of New-York, underwritten by the Traders’ Insurance Company, and on the same day the policies, with the assent of the assurers, were assigned to Francis Bolton, who held a mortgage of the property insured, executed to him by Robert.

The defendant having been surrendered by his bail after verdict, he now applies to be discharged from imprisonment, on the grounds, 1. That the capias having been served by a special deputy, the sheriff could not have been compelled to put in special bail; 2. That after bail was put in, the plaintiff gave notice to the defendant that he had excepted to the bail; and 3.

Reference. This is an action of covenant upon a sealed instrument, by which the plaintiff agreed to sell to the defendants a quantity of timber, to be cut by the defendants upon a certain tract of land, and to be paid for by them in the manner particularly specified in the contract.

Questions arose in this case as to the power of a supreme court commissioner to make an order for security for costs ; as to his right to modify or revoke such order, and as to the giving notice to the party obtaining the original order, the following opinion was delivered:

This suit was commenced by an original writ, sued out of and returnable in this court. The action is on a promissory note made at St. Catharines, in Upper Canada. One of the defendants on whom the writ was served resides in New-York, the other in Canada. A motion is made to quash the writ.

<p>Executors and administrators are not liable to costs in suits necessarily prosecuted by them in the right of then' testator or intestate, unless the court shall upon special application award costs against them for wantonly bringing any suit, or unnecessarily suffering a nonsuit or non-pross, or for bad faith in bringing or conducting the cause.</p> <p>But where they unnecessarily sue in their representative character,, as for a cause of action accruing subsequent to the death of their testator or intestate, they are liable personally to costs.</p> <p>A special application to the court for costs is not necessary, where the executor or administrator is personally liable; and in such case an execution may issue, although no account has been rendered of the administration to the surrogate, and no order made by him for execution.</p> <p>A surrogate may make order for execution against executors or administrators on judgments after a trial at law upon the merits ; but he has no jurisdiction where judgments pass against execut nrs or administrators without trial.</p> <p>The omission to state the title of office of the presiding officer of a court in the teste of a writ is no cause for setting aside the process; an amendment will be allowed.</p>

Retaxation of costs. The action was assumpsit, in which the plaintiff was entitled to only common pleas costs. In his bill he had taxed two dollars for an attorney’s fee on trial, three dollars and seventy-five cents for counsel fee on trial; and one dollar and fifty cents notary’s fees on protest of note. It was objected that he was not entitled to a counsel fee, and if entitled, that the amount could not exceed $2.

A verdict having been obtained by the plaintiff the defendant obtained an order to stay proceedings until the settlement of a bill of exceptions. The bill was settled on the seventh day of March. On the eighth, the plaintiff not having been served with a further order to stay, signed judgment.

This action was commenced in 1829, under the fourth section of the act for the prevention of frauds, 1 R. L. 76, to recover of the defendant the amount of a judgment alleged to have been fraudulently confessed. The cause was tried in 1831, and the defendant had a verdict, who now claims to be entitled to costs under the provisions of the revised statutes.

<p>in a suit commenced by the filing and service of a declaration, the service, to bo regular, must bo personal on the defendant.</p>

<p>A defendant in replevin cannot move for judgment as in case of nonsuit, where the plaintiff notices the cause and neglects to bring it to trial; he . may however move for costs for not proceeding to trial pursuant to the notice.</p> <p>It is only when neither party notices the cause for trial, that the defendant can move for judgment as in case of nonsuit.</p>

<p>An affidavit to found a motion for judgment as in case of nonsuit may be made by the defendant as well as by the attorney; but the affidavit of the clerk of the attorney will not be received.</p>

The defendants moved to change the venue. The plaintiff, on receiving notice of the motion, proposed to change the venue to the county, to which the defendants asked to have it changed, provided they would receive short notice of trial, the circuit in that county being about to be held; to which proposition the defendants refused to accede.

A motion was made in this case to set aside the proceedings, on the ground that the suit was commenced by declaration, and that it had not been served on all the defendants. In opposition to the motion, it appeared that an attorney had appeared and pleaded for all the defendants, and that the cause was duly at issue.

<p>Writ of inquiry, after judgment for plaintiff, on demurrer as to part of causes of action. The declaration contained two counts for an assault and battery alone, and two counts for an assault and battery and false imprisonment. The defendants pleaded not guilty as to the assault, and justified as to the imprisonment under a warrant in a civil suit, issued by a justice of the peace of the county of Schenectady, alleging that one of them acted as a constable in the service of such process, and the others in his aid. The plaintiff replied to the justification, that previous to the arrest on the warrant set forth in the plea, he was arrested in the county of Montgomery on a warrant issued by a justice there, at the instance of the same plaintiff who sued out the warrant in Schenectady, and that whilst passing through a portion of the county of Schenectady on his way to the office of the justice in Montgomery, he W'as arrested on the warrant set forth in the plea, and that the defendants had full notice of the previous arrest. To this replication the defendants demurred, and the plaintiff had judgment, vide ante, 204. The plaintiff then sued out a writ of inquiry to the sheriff of Montgomery, where the venue in the cause was laid, and had his damages assessed at $500. The writ of inquiry get forth the whole declaration, and contained no suggestion that a nolle prosequi had been entered as to the counts and parts of counts upon which issues of fact had been joined. The defendants moved to set aside the writ of inquiry and inquisition thereon, for the want of such suggestion; and contended, besides, that inasmuch as the replication admitted that the acts which were complained of as illegal were done in the county of Schenectady by one of the defendants as a constable, by virtue of his office, and by the others in his aid and assistance, and it appeared that the venue was not laid in that county, but in the county of Montgomery, that the defendants were entitled to judgment of discontinuance. 1 JL L. 155, § 1. 2 R. S. 353, § 14. id. 409, § 3.</p>

A motion was made for a mandamus commanding a justice of the peace to proceed and tiy a cause in which he had granted judgment of nonsuit against the plaintiff, who had sued out a certiorari and reversed such judgment of the justice.

The plaintiff, with the view of depriving the defendant of exemption from imprisonment under the act abolishing imprisonment for debt, asked leave to enter a suggestion on the record, that the action in this case was brought for monies collected by the defendant as an attorney of this court.

At a former special term of this court, E. Livingston, district attorney of the county of Albany, applied for a habeas corpus, to be directed to the sheriff of Saratoga, to bring up the prisoners in this case confined in the jail of that county.

<p>The power to supervisors of a county to examine, settle and allow all accounts chargeable against a county, involves the right to reject, if sufficient reasons in tire opinion of the supervisors are not presented for the allowance. The supervisors have a discretion and may allow only such items of expenses incurred by boards of health in. execution of the act of 1832; for the preservation of the public health, as they think proper, except as to the compensation of the health officer of-a place, in relation to which they have no discretion, but must allow such compensation as has been fixed by the board of health under whose direction, he acts.</p>

The appellant, Anthony R. Livingston, filed his bill in chancery, in which, after stating that in 1811, his father, John Livingston, made an arrangement with him, two of his brothers, and his only sister, to convey to them in fee simple, in severalty, parcels of his real estate for their respective portions of the same, and that in pursuance of such arrangement, and for the purpose of carrying the same into effect, his father, on the 1st January, 1820, in consideration of…

Apbeab from chancery. Samuel Wright and Andrew Taylor were partners as commission merchants, transacting business at Liverpool, in England, under the name of Wright, Taylor & Co.; Wright residing here and Taylor in England.

On the 8th November, 1831, the appellant filed a bill in chancery, befor the vice chancellor of the first circuit, stating that on the 14th day of October then last past, he obtained a judgment in the superior court of the city of New-York against G. G. Willis and W. C. Robinson, for $721,11; that he had caused a writ oí fieri facias to be issued, and that the same had been returned nulla bona.

The appellants filed a bill in chancery against the mayor, aldermen and commonalty of the city of Albany, stating in substance that they were merchants residing in the city of New-York, engaged in the transportation of goods and merchandize on the Hudson river from New-York to Albany by means of steam and tow boats-, and in the conveyance of produce to market by the same channel and means of conveyance; that for the purpose of carrying on their business advantageously, they…

<p>Where A., by a deed poll, “ in consideration of the performances hereinafter mentioned,” granted all his estate, real and personal, to B. in fee, upon conditon that B. should suffer and permit A. to remain in possession, and to use and enjoy all the said estate during his natural life, without yielding or pay. ing any thing therefor; and that at the decease qf A., the grantee should pay unto C. the sum of £100, and that during the natural life of A , the grantee should provide him with a maintenance, and in the deed was contained a clause in these words: “ and the said B. is to occupy and be in possession of my louse situate at the corner of Eagle street, for which he is to allow me £60 a year (luring my natural life;” and then, after some further provisions in relation to the management of the estate, the deed concludes with a clause that from and after the decease of A., the grantee and his heirs shall hold and enjoy the premises by the deed given and granted, and dispose thereof to his and their own proper use; it was held, that the deed, as to the house at the corner of Eagle street, was valid and operative as a conveyance to B. for the life of A., subject to rent, with a remainder to him in fee without, rent. A^ it was further held, that the deed might well be considered a bargain and sale under the statute of uses as to the house at the corner of Eagle street, conveying a freehold in futuro, the reservation of £60 a year during the life of the grantor being^sufficient consideration to raise the use.</p> <p>Where a plamiiffin ejectment claims to recover under a mortgage as forfeited, .it is enough that it bo found by a special verdict that there is q,mortgage,"and that from its terms it appears that the day of payment was past at the commencemciii of the suit; it is not necessary that the jury should find the non. payment of the mortgage monies.</p> <p>If the facts of a case would have warranted a jury to have found livery of seisin under a. feoffment, but in a special verdict only the evidence of the fact is stated instead of the fact being found, the court cannot adjudge the feoffment to be a feoffment with livery, but will award a venire de novo.</p> <p>The same principles apply to a title to lands by possession ripened into a right under the statute of limitations; if there has been an adverse entry and continued possession for 20 years, the facts must be found by the jury, and the evidence of the facts must not be merely stated in a special verdict.</p>

<p>Error from the supreme court. Gomez sued Garr, and in his declaration, after reciting that a certain suit in equity was pending between him as complainant and the defendant, and that certain differences existed between them, as w'cll as to the right of the plaintiff further to prosecute such suit in his name, as of and concerning certain acceptances made by the defendant upon two certain bills of exchange, drawn upon him and another person by one A. Holbridge, in favor of two individuals, who had endorsod the bills to the plaintiff, and of and concerning certain matters of set-off claimed by the defendant in his answer and otherwise averred, that for the putting an end to such differences, he and the defendant, on the 23d November, 1826, entered into an agreement in writing, entitled in the chancery suit, signed by the defendant in his proper person, and by and in the name of H. S. Mackay, solicitor for and in behalf of the complainant, by his direction and assent; by which it was agreed, after admitting that the complainant, on the 30th October, then last past, assigned all his estate and effects to three persons, (naming them,) assignees appointed by the recorder of New-York, under the act to abolish imprisonment for debt in certain cases, that the question should be submitted to Thomas Bolton, master in chancery, upon the pleadings and papers in the cause, whether the suit in chancery could be further prosecuted by the plaintiff or not, it not being stated in the bill, or otherwise appearing by the proceedings in the cause, that he sued in autre droit, or on behalf of some other person or persons; that should the master be of opinion that the plaintiff could, notwithstanding his assignment, continue to prosecute the suit, then that he should proceed under the rule of reference, theretofore made therein, to hear the parties and make a report, and the cause should be set down for hearing, on the report at the next term ; that should the master be of opinion that the plaintiff could not further prosecute his suit, then it was agreed between H. S. Mackay, attorney and of counsel for and acting on behalf of the holders and owners of the two acceptances, and the said defendant, that all claims and demands upon or relating to the acceptances, and all matters of set-off or defence to such claims and demands, should be referred to the arbitrament of the said Thomas Bolton, who should, on such arbitration, not only take into consideration the credits claimed by the defendant in his answer, but should also credit him certain payments specified in the agreement; and in case of any sum being awarded to be paid by the defendant, time should be given him for the payment of the same until the 30th day of July then next. In consideration whereof, and of the promise of the plaintiff to abide by and perform the award of the arbitrator, to be made between them, of and concerning the differences aforesaid, on his part to be done and performed, the defendant undertook and promised the said plaintiff to abide by and perform such award in all things on his part to be performed. The plaintiff then averred that on the 15th July, 1827, the arbitrator made his award, and did thereby award, arbitrate and determine that the suit in chancery did abate by the assignment made by the plaintiff; that the plaintiff was the true and lawful_Jjclder of the two bills of exchange ; that the defendant was therefore bound, to account to the plaintiff for the monies in his hands belonging to the drawer of the bills at the time of their acceptance, being the sum of ©1584,31 ; that the defendant was entitled to certain credits, (particularly enumerated in the award,) and that these being deducted, left the balance due from the defendant to the plaintiff, ©1492,07; that each party should pay his own costs of the suit in chancery; and that the costs of the arbitration, amounting to ©34,14, should be paid by them in equal shares, each paying half; the whole to be advanced by the plaintiff, and the one half charged to the defendant; and he further awarded that the said sum of $1492,07, and ©17,07$ the moiety of the expenses of the arbitration, should be paid by the defendant to the plaintiff; and that the payment should be a perpetual bar and discharge of all claims and demands of the plaintiff, as the holder of the bills of exchange, and of the several other matters by the agreement submitted. Notice of the award was averred, and breach of performance alleged. There was also a count for money lent, &c. and another on an account stated.</p> <p>The defendant pleaded I. Non-assumpsit; 2. That after the drawing, accepting and endorsing of the bills of exchange in the first count of the declaration set forth, to wit, on the Ilth August, 1826, the plaintiff presented a petition to the recorder of New-York, to be discharged as an insolvent debtor, under the “ act to abolish imprisonment for debt in certain casesthat on 30th October, 1826, the recorder directed an assignment of the estate of the plaintiff to certain persons, (naming them,) as assignees, and that on the same day, before the making of the award in the first count mentioned, the plaintiff did assign all his estate, real and personal, both in law and equity, &c. to the persons named by the recorder, to and for .the use of the creditors of the plaintiff; by reason whereof the assignees became the true and lawful holders and owners of the bills of exchange, and entitled to the monies due thereon; 3. Actio non, as to first count, because the plaintiff was not, at the time of the making of the agreement in the first count of the declaration mentioned, the holder and owner of the said acceptances; and 4. To the second and third counts of the declaration, the defendant put in a plea similar to his second plea, averring that after the making of the promises and undertakings in those counts mentioned, the plaintiff executed the assignment directed by the recorder, and stating that by reason of the assignment, the assignees became entitled to the debts, sums of money or causes of action in those counts mentioned.</p> <p>The plaintiff demurred to the- special pleas, and before the argument of the demurrer, tried his issue of fact under the general issue, and assessed contingent damages on the issues of law. After the trial, the demurrer was argued, and judgment given by the supreme court for the plaintiff. See 6 Wendell, 583. Whereupon the defendant sued out a writ of error;</p>