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Lenox v. L'nited Ins. Co.-Bales y. New York lus. Co-&c.

LENOX against UNITED Ins. Co.

The usual expression in a policy," thirty days after proof of loss," is satisfied by the usual documentary proofs as the protest, bill of lading, invoice, &c. The oath of the plaintiff cannot be required.

Bates against New York Ins. Co.

One Butler assigned stock in the company to the plaintiff, and was indebted to the company; held, that they are entitled to retain out of the accruing profits of the shares, the suins due to them before they had notice of the assignment, but for their subsequent den ands they could not retain. Judgment accordingly.

Cort & WOOLSEY against Houston.

1st. A contract for the sale and delivery of an article in satisfaction of a previons debt, being in writing, is valid.

2nd. A tender and refusal are equivalent to an actual pero formance, upon which the vendor is entitled to the price, and the vendee to the article.

3d. An offer to deliver a cumbrous article is a sufficient tender, although mixed in a promiscuous heap of the same article, and not separated from it.

41h. The subsequent sale of the article by the vendor is no objection to his recovering the full price. On the two last points Radcliff, J., was contra, and the Chief Justice gave no opinion in the canse.

Warren v. Conroy.--Doo v. Roe.-Heermance & Kip ads. Service.---&c.

WARREN against CONROY.

1st. The holder of a check is presumed to have given a valuable consideration.

2nd. The not presenting it immediately is no objection unless the bank fail.

3d. It is not necessary to be stamped. (Vide Cruger v. Armstrong f. Barnewall, ante.

Dor against Roe.

A motion for a new trial on a feigned issue, directed by the chancellor, not decided, on the ground that it properly belongs to the court of chancery. (Vide Doe v. Roe, post.)

HEERMANCE & KIP ads. SERVICE.

A motion, without sufficient notice, was made to stay proceedings on the bail bond at the last term, and for that cause refused ; the suit was now stayed on the usual terms, which were offered to be complied with at the last term, and the defendant also offering to confess judgment in the original action, whereby the plaintiff is not delayed.

STIENBACK & MURRAY against Bowne.

On the judgment in this case a writ of error was brought,

Low & Voght ads. Jackson ex dem. Duane and others.—&c.

and several other causes on a policy are depending on this. Ordered :

1st. That the consolidation rule, which was not filed, Le filed nunc pro tunc.

2nd. That the proceedings in the other causes stay, on the defendants in each cause, within thirty days, executing a bond to plaintiff in double the amount, with such surety as a judge shall approve, to pay in case of affirmance.

Low & Voght ads. JACKSON ex dem. DUANE and others.

After a stipulation to try, the plaintiff must account for not proceeding to trial, satisfactorily. An actual desire to try the cause, and the defendants having filed a bill in chancery to perpetuate the testimony, not sufficient to excuse the default.

JACKSON ex dem. SACKRIDER against VAN ANTWERP.

A judgment of nonsuit for not proceeding to trial, entered at the last term, was set aside on the ground of mistake by the plaintiff's counsel, it being proved.

SAURTLEFF against WHALEN.

ON certiorari.

1st. The evidence being returned, the court will take notice of it.

2nd. It appearing the action was to try the merits of a former recovery before another justice, the judgment was reversed. Vol. III.

82

McKinstry, Executor, v. Benson.—&c.

McKinstry, Executor, against Benson.

1st. On a covenant of seisin, &c., the breach must hap. pen in the lifetime of the testator, and the right of action therefore descends to the executor, not the heir.

2nd. A covenant against all claims, except the lord of the soil, when the deed professes to convey a possession only, is not a covenant of an estate in fee.

Bort, Tenant, ads. JACKSON ex dem. Lewis, and others.

TIe consent rule in ejectment need not be special, although an actual entry may be material in the action.

Commissioners of Highways of RHINEBECK ads. PEOPLE.

WHERE the commissioners do not act either in laying out or altering a road, there can be no appeal to the county judges. An application for a mandamus in this case was afterward withdrawn. A majority of the court inclined against allowing it. Radcliff J. was for it.

HATHAWAY against Niles.

Where the trespass is intentional, and fully proved, the plaintiff is in every case entitled to a certificate that it is wilful and malicious within the act.

Vanderburgh v. Sturges.-Garnsey ads. The People.—&c.

VANDERBURGH against STURGES, Administrator,

The time to plead is to be counted one day inclusive, and the other exclusive, but a mistake in this appearing and the defendant swearing to merits, he is allowed to plead on payment of costs.

GARNSEY ads. THE PEOPLE.

The words ad tunc et ibidem are necessary in the caption of an indictment found in an inferior court. (12 Mod. per Bull. is not a book of authority. Dougl. 82.)

MANHATTAN COMPANY against HACKLEY and another.

Notice to the indorser of a note is good on the third day of grace, after the default of the maker, although the maker may redeem the default by paying on that day.

STEWARTS against GRERNLEAF.

QUESTION as to the sufficiency of the proof of hand writing, &c. deemed prima facie sufficient and a new trial granted. Radcliff J. contra.

Note.--On the second trial, the plaintiff was nonsuited for want of sufficient proof, which, in my apprehension, was the same as now appeared.

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