Holmes v. United Ins. Co.-Dole ads. Rawson.-Reonard v. Noble.-&c.

HOLMES against UNITED INS. Co.

1. Where property is insured beyond its value, the surplus premium shall be returned.

2. Several persons concerned in undivided shares of a cargo out and home, are not joint partners, unless it appear that they agreed to share in the eventual loss and gain in the market here.

DOLE ads. RAWSON.

A default was entered a year ago and no further proceedings had. It was set aside on an affidavit of merits, and on the ground that some agreement or understanding between the parties must be presumed by the plaintffs sleeping so long on the default.

REONARD against NOBLE.

1. A person sued as special bail allowed by plea to traverse the fact that he is not the same person, although of the same name and description.

2d. The plea averred that there was another of the same name, &c. who became the bail, and that the defendant was not the same, &c., the fact that there was not another of the same name; held, not material after issue and verdict.

HALLET and BowNE ads. GILFERT.

1. An unreasonable or unusual stay at a place in the

Olcott ads. The People.-Cuerden ads. Clark.

course of a voyage, is equivalent to a deviation, but such stay will depend on circumstances and the nature of the voyage.

2d. A privilege to touch at a port gives no right to trade.

3d. But these words, as to the risk, "until the goods shall be safely landed at Barraco and one or two other ports" being added, explain the sense to be a trading voyage.

4th. The plaintiff's share happening not to be actually lost, but being disposed of in consequence of a total loss of the cargo, in the aggregate does not affect his right to reVide Hallett ads. Coles and Coles, post.

cover.

OLCOTT ads. THE PEOPLE.

1. ON an indictment for a conspiracy the conviction of one, when another who is charged to have conspired with him is dead, and not convicted, is sufficient as to him.

2d. A special verdict offered, being wholly incompetent, was properly refused.

3d. The court may dismiss a jury in a case of misdemeanor, where it appears after a full experiment that they cannot agree.

CUERDEN ads. JACKSON ex dem. CLARK and others.

THE plaintiff must make the case when a verdict is taken for him, subject to the opinion of the court.

2d. But a judgment being entered by him without doing so, the defendant knowing and sleeping upon it for two terms, comes too late to set it aside.

Silvester v. Brando.-Phelps v. Chamberlain.-&c.

SILVESTER against BRANDO.

NOTICE of a motion proved to be served on the clerk of the opposite attorney merely, without saying where, &c. or stating more, is not good.

PHELPS against CHAMBERLAIN.

A party moving for a struck jury, must show the cause to be at issue.

SHUTE against DAVIS and DAVIS.

A plaintiff cannot sue joint debtors severally, and afterwards move to amend, by declaring against them jointly, he must sue them jointly, according to the nature of his demand.

DEARIN against SHERMAN and KEELER.

An irregular judgment set aside; but a term having elapsed and the laches not fully accounted for, it was done on the payment of costs by the defendant.

CLASSON ads. VAN NOOST.

MOTION to add pleas, denied, after evidence taken to be read on the trial by consent.

Hogeboom ads. Van Ness.-Kenyon, &c. v. Barnes and others.—&c.

HOGEBOOм ads. VAN NESS.

MOTION to set aside a report, denied, the sum in controversy not being of much value, the transactions of ancient date, and the defendant having slept for more than one term.

KENYON, &c. against BARNES and others. THE venue in debt on a judgment in a county court, changed to the county where it was given.

CHURCH ads. HASBROOK, qui tam.

In a penal action, a regular verdict and judgment for $7000 taken by default, was set aside on the ground of a probable mistake in the defendants' attorney, in not appointing an agent anew by our rules, and of the amount of the penalty recovered, and an affidavit of merits, but on payment of costs.

LATHAM, Assignee, against SLATER and LOVE.

IN error, the question whether a plaintiff in a bail bond suit for a penalty must, after judgment, assign breaches, &c. not decided. Nothing more appearing than the entry of the judgment, there is no error.

Reedy v. Seixas.-Byron ads Alexander.-&c.

REEDY against SEIXAS.

A promissory note in the body of it expressed $1216 50, at the foot in figures $1216 52. Notice was given to the endorser according to the cents at foot; held, that it was properly submitted to the jury to determine whether the same note was intended and understood by the endorser.

BYRON ads. ALEXANDer.

AFTER the proofs were closed on both sides at the trial, and the witnesses had departed, a new witness just appeared who had not before attended on the part of the defendant, but he was refused to be examined, and the refusal held to be proper, and to rest in the discretion of the court.

HILDRITH against BECKER and HARVEY.

The plaintiff

NARR. against two jointly under the act. declared against "Becker and Harvey being in custody, &c. and the said Becker being returned not found;" on a special demurrer, it was held well enough, and that Harvey shall be taken to be in custody, and the other being stated to be returned not found, is sufficient.