: ADVERTISEMENT. THE Editor has in his possession more than three hundred cases besides those contained in this volume, many of which, he thinks, cannot fail to be interesting to the profession. Several of them relate, in an especial manner, to the law of Marine and Fire Insurance, as well as to the Commercial Law in general. In the city of New-York, cases of importance, both in principle and amount, are constantly arising among its active and enterprising population; and should the success of the present volume in any degree warrant the undertaking, it will be followed, in a short time, by another. If the expense of publication can be defrayed by the sale, the Editor will feel perfectly satisfied, as he has not undertaken this task under any expectations of emolument or hope of pecuniary reward. MEMORANDUM. THE editor and publisher have been at pains to cause the printing of this volume to be correctly done; but in spite of all precautions, many inaccuracies have crept in. A few of them are noted below, and many more will undoubtedly be observed by the reader. It is hoped, however, that the errors are not of such a nature as to produce misapprehension, or materially alter the sense of thepassages in which they may be found. ERRATA. On page 1, (line 10 from the bottom,) for 1793, read 1798. On page 60, (the 9th line from the bottom,) for principal, read principle. On page 64, for drawers, (line 16,) read drawees.. On page 84, for consignee, (line 2,) read consignor. On page 145, (note,) for 1 Wm., read 1 Wend. R. 91. On page 146, (line 6,) for account, read count. On page 210, (line 1,) for vursus, read versus. On page 299, (note,) for Hoffman and Palmer, read Hoffman and Talman. On page 300, (line 2,) for indebetatis, read indebitatus. On page 390, for Mulock, read F. A. Vultee, attorney for defendant. On page 498, (line 1,) for inadmissible, read admissible. On page 552, (line 5,) strike out the words at the end of C. J. JONES' opinion, "on the payment of costs;" payment of costs was not, I find, made a condition of the new trial. On page 578, for Foot and Kent, read A. Dey, attorney for S. & M. Allen. AN INDEX OF THE PRINCIPAL MATTERS CONTAINED IN THIS VOLUME. A ABANDONMENT. See INSURANCE, 27. ABATEMENT. 1. In a suit against two defendants, founded upon a joint cause of action against both, one of the defendants cannot defeat the action by pleading in abatement, matters which are applicable to himself alone. To make a plea in abatement effectual in such a case, all the defendants must unite in the plea, and it cannot be interposed by one alone. De Forest v. Jewett and Parsons, 137 See LANDLORD, 1. RESCUE, 1. SHERIFF, 2. 2. In an action of assumpsit against the defendants for money had and received, one appeared by his own attorney and ACTION OF DEBT. See DEBT. pleaded the general issue; while the other by a separate attorney appeared ACTION FOR MONEY HAD AND and pleaded in abatement of the whole suit, the pendency of certain foreign at RECEIVED. tach ments in the state of Connecticut, See PARTNERS, 1, 2. ASSUMPSIT, 2. ASSIGNMENT. See SHERIFF, 5. ATHEIST. See PRACTICE, 6, 7. ATTACHMENT. See PRACTICE, 10. ATTORNEY. See PLEADING, 5. ASSUMPSIT. 1. The plaintiffs sold the defendant a quantity of timber, and having presented their account for the same to the defendant,on the 28th day of May, 1828, at 5 o'clock, P. M., received his check on the Franklin Bank in the city of N. York. At half past ten, A. M. the next day, the bank was prohibited from making any payments by an injunction out of Chancery, and the check was consequently never presented. In an action by the holders against the drawer of the check, it was held, that the plaintiffs might, under these circumstances, waive the check altogether, and recover the value of the timber in an action of indebitatus assumpsit. Cromwell and Wing v. Lovett, p. 56. 2. A better, who has deposited money in the hands of a stake-holder, upon the event of a trotting match, cannot recover it back, by an action of indebitatus ussumpsit. The transaction being illegal, no action can be sustained, by the common law, for any cause growing out of it. McKeon v. Caherty, 300 3. But, by the 5th section of the act to prevent horse racing, (1 R. L. p. 222.) any person who has paid money upon the event of a race, may recover the same, "in like manner as is provided " in the second and third sections of "the act to prevent excessive and de"ceitful gaming." (1 R. L. 153.) By the second section of this act, any person losing at any game any suth above $25, and paying the same, may at any time, within three months, recover it back of the winner by an action of debi, founded on the act. As the remedy afforded to the loser is provided by statute, in pursuing that remedy, the forms and limitations prescribed, must be observed; and a general action of assumpsit will not lie. See ABATEMENT, 2. PARTNERS, 7. Id. It is not unlawful to place goods in the hands of an auctioneer for sale, with directions that he should not part with or dispose of them, unless they produce a particular sum; the restriction not being considered as an unlawful means of enhancing the price of the goods, or an imposition upon fair purchasers. Wolfe v. Luyster, 146 AUTHORITY. See PROMISSORY NOTES, 7, 8. AVERAGE. See INSURANCE, 27, 28. ence. judgment was to be entered up, for the amount, together with costs, to be taxed, including the expense of the referUpon a motion by the defendants, to set aside the award of these referees or arbitrators, upon the ground principally, that certain evidence offered by them, at the trial, was rejected, it was held, that the parties were precluded, by the terms of their submission, from questioning the award, there being no stipulation for a review. Lowndes v. Campbell, 599 2. The award was for less than $250, but as the action was brought for the penalty of the bond, which exceeded that sum, the plaintiff taxed his costs according to the rules of the Supreme Court. But it was held, that as the plaintiff had agreed to accept a relicta for less than $250, waiving a judgment for the penalty, (which otherwise would govern costs,) he was entitled to Com mon Pleas costs only. Id. See REFEREES, 1. B BAIL: 1. The parties to a suit in this court, and to another also, in the Supreme Court, 1. There is no distinction between proceedings against bail and other joint debtors, and the plaintiff may proceed and declare against both, under the statute, as in ordinary cases, where one defendant is taken, and the other not found. Steward v. Patten & Cutter, 38 AWARD. for the purpose of bringing the matters 2. In an action upon a recognizance, the in controversy to a speedy decision, and save costs, referred the same to disinterested persons, of their own selection, for a decision, under a stipulation, that if the issue was found in favour of the defendant, the said several suits were to be discontinued; but if in fa vour of the plaintiff, that then a relicta for a given sum, should be delivered to the real party in interest, on which a VOL. I. 81 "one sheriff returned upon the writ, " of the defendants taken, and the other "not found." The plaintiff, under the statute relating to joint debtors, having declared against both bail, a motion was made in the name of the defendant not taken, for an exoneretur upon the bail piece in the original suit, with the avowedobject of making it available to both: but the motion was denied. Id |