Gale v. Gale.-Hoffman ads. Tappen.-&c.

being at the time engaged in other business, no reason to set aside an inquest taken against him by default.

GALE, Executrix, against GALE.

An executrix plaintiff who recovered under $250 in consequence of a set off, is entitled to county court costs only.

HOFFMAN ads. TAPPEN.

A DEFAULT was set aside as irregular, because notice of the rule to plead was served before the rule was in fact entered.

DEN er dem. COLDEN against CORNELL.

1. WHERE a party claims under the state on a sale of forfeited property, he need not produce the evidences of the title antecedent to the forfeiture, presumptive evidence ought to be received.

2d. A recital in the will of a person formerly owning the premises, that he had conveyed the same to the person attainted, is good evidence, and such conveyance shall be deemed to be in fee. Vide S. C. post.

Murray v. Ringwood Co.-Jackson v. Clark.-King ads. Grim.

MURRAY against THE TRUSTEES OF THE RINGWOOD IRON CO.

THE trustess sold all the right of the company in lands, to part of which the title failed; held, that they are not liable to refund the consideration money; caveat emptor.

JACKSON, er dem. RENSSELAERS against CLARK.

1. LESSORS claimed as heirs at law and proved a descent to them. On cross examining their witnesses they proved there was a will; held, this did not preclude the lessors from claiming as heirs and it was not incumbent on them to show the will, but it might be shown by the defendant.

2d. The confession of the defendant is good evidence to show under whom he held.

KING ads. GRIM.

CASE of a prisoner brought up under the £1000 act. 1. Ruled that he may be examined by the creditor after taking the general oath prescribed by the act.

2d. That notice left at the house of the plaintiff is sufficient, although it does not appear that he could not otherwise be met with or found.

Benner ads. The People.-Gale v. Gale.-Bostwick ads. Rosekians.-&c.

BENNER ads. THE PEOPLE.

By our act, appeals of felony are abolished. An habeas corpus directed to be allowed by a judge at his chambers.

GALE, Executor, against GALE.

WICKHAM against GALE, Executor.

EXECUTIONS in both these cases are in the hands of the sheriff of New York, and the money is collected on the first; ordered, that the same be applied to the execution in the second cause.

BOSTWICK ads. ROSEKIANS, &c.

1. SERVICE of a demurrer on the agent of the plaintiff's attornies, when both attornies lived within 40 miles of each other, is irregular.

2d. A notice in these words "take notice that a rule to plead in the above cause has been duly entered," is good.

JULY TERM, 1801.

GOODRICH ads. PHELPS.

1. Oyer must be demanded by the defendant and is other

wise not necessary to be given.

Ludlow v. Baker.-Butterworth v. Stagg.-Gilbert v. Field.

2d. On an affidavit of merits, the court ordered the judgment to be set aside on the usual terms, and on condition that a judgment obtained by defendant against the plaintiff on a note given for the consideration money of a deed on the covenants in which this action is brought, be stayed, till the event of this suit be determined.

LUDLOW ads. BAKER.

THE expression of dry fish in the memorandum of a policy will not apply to fish in general as waranted free Pickled fish is not within it, expressio

from average.

unius exclusio est alterius.

BUTTERWORTH against STAGG.

It is a contempt of the process of the court to bring a suit in the name of another without his privity or consent; and in this case an attachment was granted against a person for so doing, and for costs.

GILBERT against FIELD.

To obtain judgment of non-pros for not declaring, the defendant must enter a rule to declare, and serve a notice of it.

Jackson ex dem. Potter &c. v. Sissons.-&c.

JACKSON ex dem. POTTER, &c. against SisSONS.

A grant to A. and B. for themselves and their associates, being friends, &c. does not convey an estate at law to the associates, and their interests cannot be noticed by this

court.

JACKSON er dem. BEACH, &c. against DURLAND.

1. A devise to a wife, her husband being a witness to the will, is void.

2d. A devise to the use of another till Thomas shall be of age, to whom the estate was previously devised, after the death of his mother, is not a condition precedent to the vesting of the estate in Thomas. It vested on the death of the mother.

FOSTER against HOYT and TOм.

AN agent who effects a policy in the name and for the benefit of another, cannot transfer or pledge the policy as a security for his private debt; the creditor who takes it must, from the face of the policy, have notice of the interest of the assured, and if he receives money upon it must refund, except as to the mere commissions of the agent.

2d. In this case too the agreement made by the agent with the defendants, if he had power, would not entitle them to keep the money.