Levy v. Nickerson.-Roget ads. Philips.-Denniston v. Byran-&c.

LEVY against Executors of NICKERSON.

MOTION that the sheriff pay to the plaintiff surplus monies collected by him from the testator on a former execution against him, and on a sale of real property, denied. We are inclined to think it belongs to the devisees, but we cannot distribute the assets.

ROGET ads. PHILIPS, &C.

ACTIONS brought on several notes against the same defendant, refused to be consolidated.

DENNISTON against BYRAN, and others.

THE certificate of a jury determining an encroachment on a highway, should state the highway and the extent of the encroachment with certainty. Proceedings set aside.

CLEMENT against BRUSH.

THE defendant Brush, and one Howell were partners, and jointly owed the plaintiff a simple contract debt, for which the defendant alone gave his sealed bill signed "Brush and Howell." This was an extinguishment of the first debt, and the deed of the defendant alone, and a general release from the plaintiff to Howell will not affect it.

Dwpuy v. United Ins. Co.-Munro v. Roe.-Hopkins v. Burrel —&c.

DWPUY against UNITED INS. Co.

THE allowance of new for old is only to be made in case of an average loss. Where there is a total loss and an abandonment, the assurer takes the vessel.

MUNRO and ROE against RICKET and others.

A factor selling to a person at the time in credit, and according to the usual course of business, is not liable for the insolvency of the purchaser; he is to act with good faith. and is accountable for the proceeds only.

HOPKINS against BURREL.

A promise to pay the debt of another in consideration of the plaintiff's discontinuing a suit then pending, is good, and not within the statute of frauds.

LENOX against UNITED INS. Co.

1st. Lading on deck is not within a policy unless it be expressly named.

2d. Although named in the policy, it cannot be brought into general average, not being part of the regular cargo.

3d. A loss upon it is a particular average, although it otherwise would be general.

Ingersoll v. Gregg.-McClenachan v. Giles.-Jackson v. Hendricks.

4th. The prices at the port of destination shall govern in settling a general average.

5th. A boat cut away brought into general average.

6th. On a policy made here, the parties have the law of this state in view.

INGERSOLL against GREGG.

WHERE a witness to a note is dead, proof of his hand writing without the maker's, is prima facie, enough.

MCCLENACHAN against GILES.

ON certiorari, from the £10 court in New York. Vide J. Livingston's opinion. Judgment affirmed.

The court did not decide whether a bill of exceptions lay in that court.

JACKSON er dem. GOMEZ, &c., against MARMET and HENDRICKS.

A mother of several children was seised, and died before our statute altering descents in certain cases, the husband became tenant by the curtesy, and died after the statute; the eldest son survived the mother, but died before the father; held, that notwithstanding our statute, the second son took as heir of his mother and not of his elder brother; this VOL. III.

81

Genet v. Martin Myers ads. Shell-Church ads Murrays -&c.

at common law, and to the exclusion of the other children. The inheritance was suspended during the estate by the curtesy.

GENET against MARTIN.

IN assumpsit, a plea of title before a justice can never be proper.

2d. Misspelling names cannot be noticed for error.

MYERS ads. SHELL.

GETWAN ads. SAME.

In the first case $450, and in the second, $100, not deemed excessive damages in slander for calling the plaintiff a thief, considering the situation in life of the parties, &c.

2d. On evidence of justification of a charge of felony, the quo animo with which the fact proved was committed ought дно to be submitted to the jury.

3d. Verdicts in these cases not against evidence.

CHURCH ads. STEINBACK and MURRAY.

1st. An objection now made that it does not appear that the plaintiff endeavored to recover the property, overruled, because not made at the trial, and thereupon if good, it is impliedly waived.

Van Alstyne ads. Brinckerhoff --Rice v. Clendening.—&c.

2d. An objection against the sufficiency of the preliminary proofs, also deemed to be waived for the same reason,

VAN ALSTYNE ads. BRINCKERHOFF.

THE principal being discharged under the insolvent act, the bail are entitled to an exoneretur which is ordered to be entered.

RICE against CLENDENING and ADAMS.

THE captain of a vessel is entitled to recover from the shippers, the storage of goods at Staten Island, which he was obliged to pay on landing the goods there, to perform quarantine. This was not within the general contract, and each party must pay the expenses attending the ship and goods, respectively.

SNELL against GETMAN.

A juror challenged, to which there was a demurrer, the cause of challenge was that he had tried the same matter between the plaintiff and another defendant, and found a verdict for the plaintiff; held, it was a principal cause of challenge.