Phelps ads. Chamberlain.-Jackson v. Mallory.-&c.

PHELPS ads. CHAMBERLAIN.

MOTION to amend narr. by changing the venue to another county, denied, it being laid where the cause of action

arose.

JACKSON er dem. RENSSELAER against MALLORY.

A service of narr. was on the wife, together with another narr. in another cause, and the defendant swearing that he received the other only, and also to merits, ordered that the judgment by default in this case be set aside, on payment of

costs.

VAN ALSTYNE against Administrator of LowNSBERRY.

MOTION to set aside a regular judgment and execution, obtained at the last term, denied, although against administrators, no sufficient cause appearing.

Hunt v. Leon-Moffat v. Herd -&c.

HUNT against LEON.

A special agreement to give in evidence under the general issue son assumpsit demesne, being mistaken by the judge at the trial, ordered a new trial for that reason.

MOFFAT against HERD.

JUDGMENT by default on the penalty of a bond, ruled that interest be taxed beyond the penalty.

BENNET ads. VIELLE & VIELLE.

A judgment of affirmance on certiorari was obtained at the last term. It now appearing that the attorney for the plaintiff, died pending the suit; ordered, that the same be set aside. It was necessary for the defendant's attorney in such case, to warn the plaintiff to appear by another attorney.

MILLIMAN ads. HODGES.

MOTION for a nonsuit for not proceeding to trial, denied, it appearing that 8 days notice of trial was given, when 14 days were necessary, and the plaintiff wished to proceed, but the defendant objected on this ground.

Lawrence v. New York ins. Co-Jackson v Rumsey.-&c.

OCTOBER TERM, 1802.

LAWRENCE against NEW YORK INS. Co.

In case of an average loss on part of the goods whose relative prices are not distinguished, it is necessary to enter into a general account of the cargo, and to take the price at the foreign port as the means by which to ascertain the relative value and injury, and this is to be calculated by the gross and not the net proceeds at the foreign port.

JACKSON er dem. WOODHUE and others against RUMSEY.

PROOF of a will under the act in open court is not conclusive.

2d. The defendant holding part of the premises under a witness offered by plaintiff, cannot object to such witness on the ground that he comes to impeach the title he has af firmed.

SAVAGE & DUGAN against UNITED INS. Co.

THE insurer is entitled to retain the premium where the risk has once commenced and a voyage is entire, unless the risk be divided by the contract or by usage.

Lenox v. United Ins. Co.-Bates v. New York Ius. 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 sums due to them before they had notice of the assignment, but for their subsequent demands they could not retain. Judgment accordingly.

COIT & WOOLSEY against HOUSTON.

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

2nd. A tender and refusal are equivalent to an actual performance, 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.

4th. 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 cause.

Warren v. Conroy.-Doe 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 & Barnewall, ante.

DOE 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,