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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,

264

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 DAMAGES, 1.

COVENANT.

See LANDLORD AND TENANT, 2. PARTNER-
SHIP, 1. PRINCIPAL AND SURETY, 1, 2, 3.

CRIMINAL LAW.

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,

520

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

304

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

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1.

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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.

id

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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

vens,

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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

See EVIDENCE, 3.

DOWER.

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

seal, quere.

id

where a husband dies, his widow is enti-
tled to dower in the lands whereof he was

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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,

87

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8.

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.

id

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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.

id

14. A possession to be adverse, must be in-
consistent with the title of the claimant who

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15. Where there is an actual occupation of
premises, an oral claim is sufficient to sus-
tain the defence of adverse possession; it

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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.

ERROR.

id

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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,

105

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,

common

185

5.

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.

id

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,

520

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

350

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,

354

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.

EXECUTIONS.

NERSHIP.

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,

419

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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,

184

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-

cutors,

238

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,

4.

488

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.

F
FORFEITURES.

See BANKS AND BANKING.

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