2. On a defendant in a justice's court making affidavit that the justice before whom the proceedings are had is a material witness for him, and that the facts he relies upon cannot be shown by any other witness, the suit must be discontinued. The justice cannot refuse to enter judgment of discon- tinuance, on the ground that he knows 2. nothing material between the parties, and has no recollection of the facts which the defendant affirms he expects to prove by him. Hopkins v. Cabrey,
3. An attachment issued under the non-im- prisonment act is void, if it be made re- turnable more than four days after its date, although the proceeding be under § 34 of that act, allowing such process against a debtor about to remove his property from the county. Webber v. Eysaman, 485
4. A constable, however, executing an at- tachment returnable more than four days after its date, is protected, although he knew the facts limiting the return of the process to four days, provided that in oth- er respects the process be good on its face.
See LANDLORD AND TENANT, 2. PARTNER- SHIP, 1. PRINCIPAL AND SURETY, 1, 2, 3.
A plea of non damnificatus as to part, and tender of a sum certain as to the resi- due in bar of the action, cannot be sustain- ed. id
Where a party had an easement in the land of another, viz. the right to cut a ditch or water-course, it was held that the owner of the land had the right to erect fences across the water-course, and that if the other unnecessarily or wantonly re- moved them, he was liable in damages and that the owner, for such removal of the fences, was entitled to recover, though no actual damage was proved. Every un- authorized person upon the land of another is a trespass for which an action lies, though the damages be merely nominal. Dixon v. Clow. 188
id 4. Where a party contracts to load a ship to a given amount of tons, at a stipulated price per ton, and falls short in shipping the whole number of tons, the owner or master of the vessel is entitled to recover, in the nature of damages, freight for the deficiency; but where in such case goods are offered by a third person, to be ship- ped to an amount sufficient to make up the deficiency, though at a reduced rate of compensation, but still at the current pri- ces, the owner or master of the vessel is bound to receive such goods, and place to the credit of the original charterer the net earnings of such substituted cargo, after making all reasonable deductions resulting from the circumstances of the case. Heck- scher v. Mc Crea.
1. Where in an indictment for murder the crime is charged to have been committed with a premeditated design to effect the death of the person killed, the premedita ted design or express malice must be prov- ed, or the prisoner cannot be convicted, although the act be also charged to have been done with malice aforethought; the 5. description of the character of the crime, viz. its perpetration with a premeditated de- sign, cannot be rejected as surplusage. The People v. White,
2. Where a judge, in his charge on the trial of a criminal case, after alluding to the be- nefit of good character to the accused in a 6. doubtful case, called the attention of the
The rule of damages for the non-delivery of chattels sold is the market price on the day appointed for delivery less the contract price where the latter is not paid; it is of no consequence at what price the purchas- er had agreed to sell to others. Davis v. Shields. 322
Where property tortiously taken by one person from the possession of another is
2. A certificate made by statute, evidence of certain facts, requires no proof of its gen- uiness, where on its face it appears to be regular. Thus the certificate of the ac- knowledgment of a deed is received with- out proof of the official character of the officer granting it, of his signature, or that it was granted within the jurisdiction where he is authorized to act. The evidence, is only prima facie, and may be rebutted. id 3. It is not necessary that a certificate of ac- knowledgment should be endorsed on the deed; it is enough if it be on any part of it.
5. Where premises adjoining a river above tide water, are described as bounded by a monument standing on the bank of the river, and a course is given as running from it down the river as it winds and turns to another monument, the grantee takes usque filum uquæ, unless the river be expressly excluded from the grant by the terms of the deed. Luce v. Curley, 451
1. Where a voluntary assignment for the 4. benefit of creditors was made by debtors, and the deed of assignment placed in the hand of the assignee who hesitated to accept for six hours, and then claimed the proper- ty, but before he concluded to accept, the property was levied upon by virtue of ex- ecutions against the assignors, it was held, that the judgment creditors had obtained a lien upon the goods, and were entitled to have their debts satisfied in preference to the debts of the creditors provided for by the assignment. Crosby v. Hillyer, 280 2. A creditor who has signified his assent to a composition between his debtor and the creditors at large of such debtor, cannot 6. subsequently withdraw his assent without the consent of the debtor; but if such consent be given, the debtor cannot after- wards set up the agreement for a composi- tion, in bar of an action for the recovery of the original demands. Fellows v. Ste- 294
4. A composition as to simple contracts, may
A license given by the owner of the bank of a river above tide water, to abut a dam built across such river to the bank owned by him, is a perfect answer to a claim of adverse possession set up by the party ob- taining such license, or by a purchaser from him, although the purchase be made without notice of such claim. id
be by parol, but whether to affect debts 1. Since the revision of the laws in 1830,
due by speciality, it should not be under
where a husband dies, his widow is enti- tled to dower in the lands whereof he was
1. Ejectment cannot be brought by a commit- tee of the person and estate of an individ- ual in respect to whom a writ in the nature of a writ de lunatico inquirendo had been issued, and an inquisition found that he was incapable, &c. Petrie v. Shoemaker, 85
2. The effect of a deed of land executed by such individual alluded to. id
3. Where, on trial of an ejectment a verdict is entered for the plaintiff, with leave to the defendant to move to set it aside, on the motion for a new trial the defendant is not allowed to object that the plaintiff fail- ed to show title in himself, if such objection was not raised at the trial. Thurman v. Cameron,
Such deed fastens upon the grantee and those claiming under him the character of a tenant in common with the grantee of the other heirs of the prior possessor, and the possession held under such deed is not adverse to the rights of the other grantee, unless the presumption arising from the acceptance of the deed be satis- factorily explained. id
9. Possession of twenty-seven years by one tenant in common, although during all that time the right of the co-tenant had not been recognized, WAS HELD, in this case, not to be sufficient to authorize a jury to presume an ouster, where before twenty-five years had elapsed, the co-tenant had made an ac- tual entry upon the land, and was forcibly expelled.
12. A naked possession of land, unaccompa- nied by a claim of right, never constitutes a bar, but enures to the benefit of the true owner. Humbert v. Trinity Church, 587
13. So if a man have title as tenant in com- mon, and be in possession, he is presumed to hold for himself and his co-tenants; but such presumption may be rebutted by proof of acts or declarations, indicating an inten- tion to exclude his co-tenants, such as a disavowal of his holding as a tenant in common; and if he in fact keeps out his co-tenants, such acts and declarations con- stitute an ouster, and his possession from that time becomes adverse within the meaning of the statute.
14. A possession to be adverse, must be in- consistent with the title of the claimant who
15. Where there is an actual occupation of premises, an oral claim is sufficient to sus- tain the defence of adverse possession; it
is only where a constructive adverse pos- 1. A judge at the circuit may, upon his own
session is relied upon, that the claim must be founded on color of title by deed or oth- er documental semblance of right.
motion, exclude evidence which he deems irrelevant; he is not bound, although the opposite party does not object, to sit and hear testimony which can have no legal bearing upon the question to be tried. Cooper v. Barber,
A mortgagor of personal property is an in- competent witness for the mortgagee in a controversy between the latter and a pur- chaser under an execution issued subse- quent to the execution of the mortgage, where such instrument is void for want of possession of the goods accompanying its delivery, and actual possession is not taken by the mortgagee until after the levy by virtue of an execution. White v. Cole, 116
ment of a deed taken in 1784, not stating that the grantor was known to the officer, be sufficient to authorize the reception of the deed in evidence, quere. Northrop v. Wright, 221
2. On the refusal of a court of common pleas 3. Whether a certificate of the acknowledg- to set aside a report of referees for alleged errors in the hearing of the cause, if the losing party desires to review in the su- preme court the decision of the common pleas, he must procure a statement of facts, not the evidence of the facts, to be drawn up under the direction of the common 4. pleas and placed upon the record in the form of a special report in the nature of a special verdict or bill of exceptions. id
3. Where a cause was tried in a justice's court, and the justice at the request of the jury, after they had retired to consider of their verdict, gave them, without the con- sent of the parties, his minutes of the trial, the common pleas on certiorari, reversed the judgment rendered on the verdict of the jury, and this court, on writ of error, affirmed the judgment of the pleas. Neil v. Abel,
Where a will produced on the trial of a cause was more than fifty years old, it was held that the legal presumption attached that the witnesses were dead, and that the party might resort to secondary evidence to prove the will; and that its production with the probate attached was sufficient evi- dence to authorize its being read.
Where a party on the trial of a cause avails himself of an admission of his adver- sary to sustain his action of defence, the opposite party is entitled to prove such oth- er parts of the conversation had on his part as tend to explain, modify or even destroy the admission made by him; but is not at liberty to call for such parts of the conver- sation had by him as relate to the asser- tions made operating in his favor upon the general merits of the case, but having no connection with the admission made. Ga- rey v. Nicholson,
4. How far the acts of judges de facto will be sustained, discussed by the CHANCELLOR, Mr Justice BRONSON, and Senators DIXON, FURMAN, ROOT and VERPLANCK; and the right of a party affected to raise on writ of error an objection to the due organization of a court, discussed by the CHANCELLOR and Senator VERPLANCK. The People v. 6. Evidence that the plaintiff, in an action of White,
5. The CHANCELLOR holds that the court for the correction of errors will listen to an ob- jection appearing on the record, although not urged in the supreme court, if it be of 7. such a character that had it been presented VOL. XXIV. 65
slander, aided in procuring an abortion, is inadmissible, unless the notice of justifica- tion shows that in so doing the statute was violated. Bissell v. Cornell,
After an equal number of witnesses have been sworn on each side in the impeaching
or supporting of the charactor of a party or witness, it is in the discretion of the pre- siding judge whether a greater or farther number of witneses shall be examined. id
8. Where a bond and warrant of attorney were given for a sum certain, payable on demand, to secure the payment of certain specified notes, and a writing was entered into by the obligees of the bond stating the
ing to be the examination of a witness taken on a coroner's inquisition, is admissible in 520 evidence, quere. The People v. White,
See ASSUMPSIT, 2, 3, 4. DEED, 2, 3, 4. IN- SURANCE, 3. PRINCIPAL AND SURETY, 2. NEW-YORK, (CITY OF,) 6.
object of the transaction, and appropriating See CORPORATIONS, 2. JUDGMENTS. PART- the proceeds of the judgment to be entered, it was held, that parol evidence was inad- missible to show an agreement entered into at the time of the execution of the papers enlarging the time of payment of the note. The Farmers & Manufacturers' Bank v. Whinfield,
EXECUTORS AND ADMINISTRATORS.
1. In an action against an administrator, the plaintiff cannot join a count on a promise by the intestate with counts on promises by the ad- ministrator for causes of action accruing since the death of the intestate; a promise by the ad- ministrator on an account stated of moneys due from the intestate in his life time may be joined with a count on a promise by the in- testate, but not a promise by the administra tor on an account stated of moneys due from himself. Gillet v. Hutchinson's Administra- tors,
2. A judgment for costs against plaintiffs su- ing as executors, rendered by the marine court of the city of New-York, will not be revers- ed simply on the ground of the award of costs; the court will intend that the costs were awarded on special application, unless the contrary appears. Judah v. Stagg's Exe-
3. Where a testator is indebted and dies with- in six years after the accruing of a cause of action against him, and within eighteen months after his death a suit be brought against his executor, who pleads the statute of limitations, the proper course for the plain- tiff is, to reply that the cause of action did ac- crue within six years, and not to plead the facts specially that the cause of action accrued within six years before the death of the tes- tator, and that the suit was commenced with- in eighteen months after that period. On such general replication, in the computation of time the eighteen months are excluded. Howell v. Babcock's Executor,
So in an action by an executor or administra- tor, where twelve months have elapsed since the death of the testator or intestate, and the statute of limitations is pleaded, it seems that it is not necessary for the plaintiff to reply specially the time allowed by law for the bring. ing of the suit, but may reply generally. id See TRUSTS.
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