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Purdy v. Delavans-Kipley v. Wardell.-Beach ads. Martin.
2nd. A previous suit in the name of the payee, and after negotiations between the endorsees and the defendant, is prima facie evidence that the endorsees were trustees for the payee, or privy to the original transaction.
PURDY against DELAVANS.
AN award certain to a common intent is sufficient and conclusive.
RIPLEY against WARDELL.
UNDER an agreement to give a note for a certain sum, if the party who was to give it become bankrupt and obtain his discharge without giving the note, and he afterwards give the note, he cannot be allowed to antedate it so as to be affected by his discharge, although he might have given it before the discharge, according to his contract.
BEACH ads. MARTIN.
IT is settled that an action for an escape will not lie against an executor or administrator.
Shaw ads. The People.-Rust ads. The People.-&c.
SHAW ads. THE PEOPLE.
AN indictment for forcible entry and detainer must directly allege that the complainant was seised at the time of the force, that he "long since was seised," is not sufficient, Proceedings set aside.
RUST ads. PEOPLE.
AN indictment for extortion must state how much was due, how much more was taken, and in what items; otherwise it is too general.
HASKINS and others against Bradford.
RULE for an attachment granted against referees, but there being a question before them as to the admissibility of a receipt in evidence, the court intimated that they had best admit it, and leave the parties to make it a question in court thereafter.
STERNBERGH ads. JACKSON er dem. Le Roys, &c.
A verdict set aside as against evidence, it being a question on the proofs only.
Wyckoff ads. Combs.--Smith ads. Deas.--Jackson v. Mackabay.-&c.
WYCKOFF ads. COMBS.
Inter alia. The defendant not being able to procure the attendance of witnesses who were absent, nor a delay from the referees, is not a cause for setting aside the report; he ought to have applied before they reported for an order on the referees to the court, as in the case of Sands and Birds, ante, which he had time to do in this case.
SMITH ads. DEAS.
AFTER a stipulation to try, and no sufficient cause shown for a subsequent neglect to try the cause, nonsuit granted.
JACKSON ex dem. WINTER against MACKABAY.
A third person cannot be admitted to defend in ejectment, unless it appears there is a privity between him and the
LASHER against WALTON.
MOTION for a reference granted on the usual affidavit of defendant, and of another person to the same effect, although opposed by the affidavit of the plaintiff.
2d. An objection that a question of law will arise, must
Monel ads. Gilliland. -Munger ads. Campbell.-Pettingal v. Brown.
be supported by an affidavit that the party is so advised by counsel, and in what such question consists. Vide Bonough v. Bedlow, post, contra.
MONEL ads. GILLILAND.
MOTION to set aside a verdict for irregularity, denied, on the ground that it was cured by the defendant appearing at the trial and making a defence.
MUNGER ads. CAMPBELL.
MOTION for a nonsuit denied, on the ground that another cause depending on the same question, was tried, in which a. point was referred for the opinion of this court.
PETTINGAL against BROWN.
IN an action qui tam, for the penalty on a usurious contract, the borrower is a competent witness to prove the usury. In this case the security from the borrower for the debt had been cancelled.
Milward v. Hallet.-White ads. Bancroft and Wife.-&c.
MILWARD against HALLET.
A new case under the idea of amending a case made on the opposite side, is irregular, and the first case will stand. But a mistake of the practice in this instance appearing, the party was allowed to amend.
WHITE ads. BANCROFT and Wife.
IN dower, the possession of the husband held independently, is prima facie evidence of seisin in the husband to put the tenant on his defence.
MANHATTAN Co. against LEDYARD & LEDYARD.
Ir is not necessary to aver in a declaration, that one of a partnership made or indorsed a note for the firm, it is suficient to say, that they (the partners,) made it, and to prove that any one of them did so.
STUART against RICH and others.
A turnpike case. Every person passing a gate is bound to pay full toll, as if he had travelled the whole distance between the gates.