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Elwyan v. Drako.-Nielson Kimberly-Robinson v. N. Y. Ins. Co.

Elwyn, WITTAKER and WITTAKER ads. DRAKE.

On a note signed “ John Elwyn & Co." a co-partnership was proved, but not that they acted under the firm of Elwyn & Co. It being signed by one of the partners; held, it was prima facie good evidence of such a firm existing, and it lay on the defendants

prove it to be different. It must without other proof also be intended to be given on the partner ship account.

NIELSON and BUNKER ads. BROWN and KIMBERLY.

A certificate to stay proceedings was discharged on the ground of there not being probable cause.

NOVEMBER TERM, 1803.

Robinson against New York Ins. Co.

on

New trial awarded, (the court being equally divided,) for the purpose of a special verdict. Kent and Radcliff for the plaintiff, Lewis and Thompson for defendant. Livingston gave no opinion, having been counsel. The case was

a policy upon commissions, and the question was whether they were lost or whether the plaintiff would recover from the owners of the cargo, which depended on a special agreement shown to the defendant at the time of subscribing the policy.

N. B. This case has been since decided for the plaintiff.

Hitchcock v. Aiken.--Given v. Driggs.—&c.

HITCHCOCK and Fitch ads. AIKEN.

The judgment of the court of a neighbouring state is not conclusive but prima facie evidence only.

Given against DRIGGS.

1st. A bond given to a sheriff to indemnify him against a past escape is valid.

2d. On an indemnity of this kind it was not necessary that a defence should be made to a suit where it appears that none could legally be made.

BEEDLE ads. HOPKINS.

Two counts were bad and the third good, and the verdict general; the judgment must be arrested, but the plaintiff has leave to discontinue on the bad counts, and take a venire de novo on the good counts.

TUPPER ads. Nash.

On a contract made in Connecticut and sued here, our own statute of limitations must govern.

Jackson ex dem. Putnam v. Bowen.-&c.

JACKSON ex dem. PUTNAM against Bowen.

1st. On a motion for a new trial, the affidavit of a witness on the trial that he was misapprehended in his testimony cannot be received.

2nd. On the question of adverse possession, under the statute of limitations, the possession of a defendant claiming by color of title and for valuable consideration, shall be extended by construction to the entire tract so claimed, although he had not possession by enclosure or a pedes positio of the whole.

JACKSON ex dem. QUACKENBOSS against Dennis.

The bounds of the Hosick Patent, according to Bleecker's survey in 1754, established, as against a claim under an adjoining patent.

PEOPLE against Brown.

The people cannot maintain an information for an intrusion without an office previously found.

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ON certiorari. Rule granted on a justice to return to a certiorari the summons, venire, and other proceedings.

Hallet nds. Peyton.—Marshall ads. Fitch and others.-&c.

HALLET ads. PEYTON.

An agent who has an order on defendant to pay out of the proceeds of the demand in suit, a debt due him from the plaintiff, is an interested witness.

MARSHAL ads. Fitch and others.

In ejectment. A defendant who derived the possession from his father on his decease, which was held by the father under the plaintiff's title, deemed sufficient to presume, that he (the defendant,) held under the same title.

Isaacs ads. REMSEN, Administrator.

The testator's book containing entries made by him relative to his business as an attorney, is not evidence.

2d. Referees cannot split a demand consisting of a single item, the evidence concerning which supports the whole or nothing. Report therefore set aside.

LOWNSBERRY and others, administrators, ads. V. ALS

TYNE.

A notice by defendant's attorney of being concerned, having been sent and probably miscarried, the judgment was set aside on payment of costs, it being done also in favor of administrators.

Duff v. Lawrence & Van Zandt.--Voorbis ads. Prior and others.-&c.

Duff against LAWRENCE & VAN ZANDT.

Decided in the same manner as in July term, 1802, S. C. ante. Vide written opinion, and an able argument of Mr. Hamilton in writing, for defendants.

Vooruis ads. JACKSON er dem. PRIOR and others.

Costs for not going to trial in Westchester, allowed to defendant, although it appeared that the only reason was the want of a will which was in New York, and could not then be obtained on account of the fever.

2d. The time consumed at the circuit in a negotiation about admitting the will, not deducted from the witness' charges.

BONOUGH against Bedlow.

Motion for a reference on the usual affidavit, denied ; it being stated in an affidavit of the opposite party that a question of law would arise, as he was advised and believed, though the question itself was not stated. I was contra, considering that the question ought to have been stated. (Vide Lasher v. Walton, contra.)

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