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Beebe ads. Paddock - People v. Judges of Westchester.-&c.
BEEBE ads. PADDOCK.
A Notice served on the clerk of an attorney, not sufficient, unless it be in the attorney's office.
PEOPLE, ex rel. ALLAIRE against JUDGES OF WESTCHESTER.
If an inferior court resuse without cause to seal a bill of exceptions, the court will award compulsory process. In this case it was shown by affidavit, that the facts in the bill were untrue, therefore motion for a mandamus was denied.
JENKINS against KINSLEY.
On a trial by record, office copies of a judgment in the Circuit Court of the United States in Massachusetts, proved in the ordinary method pursued within that state, held, sufficient.
It is not within the act of congress.
LANSING against FLEET.
A sheriff after suffering a voluntary escape of a prisoner on execution, can never retake him nor lawfully detain him, a'though he voluntarily returns and submits to the process. Radcliff: J., contra
Executurs of Platuer ads. Executors of Van Rensselaer-&c.
Executors of PLATNER ads. Executors of Van RensSE
Executors are liable upon the express covenant of their testator, so long as a privity of contract exists, though the breach happen while a third person is in possession of premises to which the covenant relates.
Entire damages on several counts where one is bad, fatal on a motion in arrest. So where the right of action is periodical and depends on time and the narr. embrace a period during which there can be no right. But the verdict may be amended by the judge's notes, if the evidence at the trial was confined to the good counts or the proper time only.
An executor cannot recover rent accrued after the testator's death pon a lease in fee. Vide Jackson er dem. Lewis v. Sissons, post.
Executors of Planner ads. Devisees of VAN RENSSELAER,
The executors of a lessee of an estate in fee are not liable for rent accrued after the death of their testator. There is no privity of estate nor contract. The privity was destroyed by the will under which the plaintiffs must claim as devi: sees or assignees, and they are not assignees under the statlite 32 Hen. VIII., ch. 34, which applies only to leases for life or for years. So held although the covenant was express. Vide Jackson er dem. Lewis v. Sissons, post,
Shepherd ads. Case.—Tunno & Cox v. Lague.-Kelly v. Harison.
SHEPHERD ads. Case.
1st. The delivery of a habeas corpus or certiorari suspends the proceedings of an inferior court.
2d. If such courts exceed their powers, they become trespassers.
3d. The proceedings in forcible entry and detainer are not within the act requiring bail, &c.
4th. In trespass, probable as well as actual damages may be recovered, but if attended with an ouster, there must be regress or re-entry, otherwise damages for the first entry only can be recovered.
5th. Verdict set aside, but the court said if the plaintiff would accept nominal damages only, they would give him judgment.
TUNNO & Cox against LAGUE.
It is generally sufficient for the agent of the holder of a foreign bill of exchange, to transmit notice of non-payment to his principals, and they to the drawer, and if it be thus conveyed in reasonable time, it is regular.
2d. The prevalence of the fever in New-York in 1798, admitted as an excuse for not giving immediate notice of nonpayment.
KELLY, widow, against Harison. In dower. The demandant had always been a British subject and resided in Ireland; her husband an American before the revolution; adjudged that she may recover dower
Loomis & Tillinghast v. Shaw._Sherwood ads. Gifford.—&c.
on all the lands whereof her husband was seised before the 4th July, 1776, and no other.
LOOMIS & TILLINGHAST against Shaw.
Policy on profits. A loss of the goods happened, and 5-8 of them were restored. The plaintiffs abandoned, held that they could recover but 3-8, and could not abandun when their chance of profits on the 5-8 remained. There cannot be a partial abandonment.
SHERWOOD ads. JACKSON ex dem. GIFFORD.
1st. Government may grant when out of possession, but the grantee cannot convey to another.
2d. A construction of the Hosick Patent in relation to the premises in question.
PERCIVAL against JONES.
Under the £10 act, the justice, if he issues an execution against the person, does it at his peril, unless requested by plaintiffs, and if improper will be a trespasser. If done at the plaintiff's request, the latter will alone be the trespasser. A justice becomes a trespasser by an excess of power exercised by him as well as for the want of it.
Allaire v. Ouland - Whitaker v. Cone.--Sweet ads. Rutgers and others.
ALLAIRE against OULAND.
1st. Plaintiff suing as attorney, is not bound to produce the attachment of privilege alleged in his narr. It was an
impertinent averment, and not merely innmaterial. The dis• tinction between impertinent and immaterial averments.
2d. An original promise to indemnify against an act to be done, is not within the stailile of frauds.
3d. The act of a servant in entering the locus in quo of another, by order of the master, is not illegal as against the master.
41h. On a promise of indemnity, the suffering judgment by default, aster notice of the suit to the promissor, is no objection.
5th. After verdict, a mistake in dates in the narr. is not essential.
WHITAKER against Cone.
A note for the purchase of Susquehanna lands, under the Connecticut title, received by the plaintiff with notice of the consideration held illegal, in the hands of such plaintiff ac. cording to the case of Dole ads. Woodworth, decided in the court of errors in March, 1800.
Sweet ads. RUTGERS and others.
1st. An agent receiving a bill of exchange as bailee from another, to be credited to his principal in other transactions,