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Kerley v. Cogswell.—Baudee ads. Zobriski.—Manly ads. Herrick.

Kerley against Cogswell.

Motion to discharge a certificate of probable cause denied, because

1st. Notice of this motion has not been given.

2d. The plaintiff might after the defendant's default have noticed the argument himself.

BAUDEE ads. ZOBRISKI.

In slander. It is not sufficient to retain the venue in a county different from that in which the cause of action arose, because there are political differences in the proper county, which also pervade the state at large, unless some personal or local cause be shown.

MANLY ads. HERRICK.

AFTER a new trial was granted, the defendant was allowed to add a new plea to the general issue, it having been pleaded alone, by mistake of the attorney.

Matter of Freer.— Bordes v. Hallet.-Rozell ads. Yates.

In the matter of Freer, Printer of the Ulster GAZETTE.

An application to postpone, showing cause, denied, it being desired merely to expunge certain facts improperly inserted in the affidavits, not to add any new fact. Asterwards the rule for an attachment was made absolute, the party showing nothing to purge the contempt, but merely to extenuate the offence.

BORDES against HALLET.

1st. Property taken and carried in as prize, although decreed by the admiralty to be restored, yet if the restoration could not be obtained without unreasonable conditions annexed, the insured may abandon.

2d. He may also recover for expenses attending the fair prosecution of his claim.

3d. An indorsement of such expenses made by the usual agent of the underwriters on documents, which at the time appeared to him authentic, is prima facie good evidence to charge the defendant.

ROZELL ads. YATES, Executor, &c.

A regular judgment refused to be set aside, although the defendant swore to merits, there being a lache in the agent of the defendant's attorney, not accounted for. Agents come within the rule that a reasonable excuse must be given.

Clason ads. Mulligan.—La Green ads. Eushreaud-&c.

Clason ads. MULLIGAN, Assignee, &c.

A motion to add a new plea, denied, on the ground that the defence stated applied 10 a partnership transaction, inadmissible, as against this suit.

LA GREEN ads. BUSHREAUD.

An application for a second commission to suspend the proceedings denied, the plaintiff having issued one which was returned not executed, as to his principal witness who refused to be regularly examined. A commission not to suspend the suit was allowed.

WOLCOTT & VAN ORDEN ads. ABEEL.

A sheriff's inquisition was set aside on the ground that he refused to admit testimony which was proper on the part of the defendant, under a written agreement.

Administrators of Scott against MORGAN.

A motion for a commission was denied on the ground that the notice was served in the office of the defendant's attorney, and it did not appear at what time of the day. It ought to have been within office hours, which the court de. fined to be from 9 A. M. to 5 P. M. Vol. III.

87

Le Roy and others v. Stout, Executor.-&c.

In the following cases opinions were prepared but never delivered.

APRIL TERM, 1802.

Le Roy and others against Stout, Executrix.

In a suit on recognizance of bail, the defendant pleaded nul tiel record, and relied on a mistake in the bail piece, which was capped of a wrong term. This being the act of the defendant, it ought to be amended, although the present defendant be an executrix.

AUGUST TERM, 1803.

JACKSON ex dem. Lewis and wife against Sissons.

A covenant in a lease or deed not to sell or underlet with. out leave in writing of the landlord, is collateral, and does not run with the land, so that an assignee of the reversion can take advantage of it.

2nd. An assignee of a reversion in fee is not within the stat. of 32 H. 8, (adopted here) which applies only to estates for life or years. This opinion was agreed to by all the judges except the chief justice, who was a party, but the motion on which it was to be delivered was withdrawn, and therefore never given. (Vide Errs of Platner ads. Er'rs of Rensselaer, Same ads. Derisees of Van Rensselaer, ante.)

PRENDERGAST and others ads. Prior.

Vide in this case the authorities and points deduced by Judge Benson on the question of traversing the return of a rescue.

Jackson, ex dem. Verder and others v. Gourlay.-&c.

The following cases were submitted to Judge Kent and myself, and the

parties acquiesced in our opinions.

FEBRUARY TERM, 1802.

JACKSON er dem. Verder and others against Gourlay.

A power in a will respecting real property, not being pursued according to the intent of the will, its execution is void and cannot help the party claiming under it.

NOVEMBER TERM, 1801.

Rogers against Coon. When one party has performed his part of an executory contract, it is not in the power of the opposite party to rescind it.

2nd. Where it may be rescinded, a mere neglect of performance for a short time is not sufficient to show it to be rescinded, it remains then still open. The party intending to rescind must do some act to determine his election, as tender and notice.

3d. The action for money had and received cannot be maintained except where there be evidence of money having actually passed. (Vide Walker ads. Ballard, ante.)

Dole against PRENDERGAST, who, &c.

In replevin. 1st. The bond to be taken by the sheriff at common law was to prosecute the action with effect.

Ву the statute he is also to take pledges for the return of the goods.

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