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«Kh want of funds was not sufficiently proved in this case, as the testimony of Mr. Troup, and that part of the answer in chancery which related to the deficiency of funds, were improperly received, and ought to have been excluded.

Per curiam. Delivered by Thompson, justice. This was a suit on a promisory note, dated eleventh of June, 95, payable one year after date, and brought by the second indorsee against the maker.

The note being admitted upon the trial, the defendant gave in evidence, a bill and answer in chancery, between the partes, in which answer the plaintiffs admitted, that the defendant made the note aforesaid payable to Thomas Cooper, and delivered it to Nicholas Hoffman; that after it was payable, the defendant made and delivered to Nicholas Hoffman, a bill of exchange for the amount of it, upon Wifliam "W. Burrows, of Philadelphia, payable in 60 days, which bill, if paid, was to be a discharge of the note, and diat otherwise the note was to stand good; that the bill was accepted, but when presented for payment, wa» refused, the said persons having become insolvent. The defendant then moved for a nonsuit, on the ground that the plaintiffs had not given evidence of notice to the defendant of non-payment of the bill.

The plaintiffs then proved by Mr. Troup (who was objected to as a witness, because the communications from the defendant to him, were made in confidence, though not in the character of attorney or counsel for him, and the objection over-ruled) that on a settlement between the defendant and Mr. Burrows, he owed the latter 4-8,000 dollars, for which the defendant gave a bond the fourth of October, 1796; that he understood explicitly from both the defendant and Burrows, that the above balance arose from monies paid, and responsibilities incurred, by Burrows, for the defendant, in order to support his credit, and from motives of friendship, under an express agreement by the defendant, that funds should be provided by him, but that no such funds were provided; that these were the only transactions between Burrows and the defendant. It was proved, that Wjheji the bill was not paid, Thomas Y

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Cooper, the original payee, called on the' defendant, and the defendant said he knew the bill had not been paid, and that when the bill became payable, Burrows had no funds to take it up, and that he, the defendant, could not provide the payee with any.

The jury found a verdict for the plaintiff, and the defendant now moves for a new trial, on the following grounds.

That after acceptance of the bill, notice of non-payment was requisite to hold the drawer.

That if want of funds excused; here was no sufficient evidence of it, and that the testimony of Mr. Troup was inadmissible; that the defendant was entitled to read such parts of the plaintiffs answer in chancery, as he chose, without making the whole answer evidence.

The notice to the drawer of non payment, although in general requisite, was not necessary in this case, because the drawer had no effects in the hands of the drawee. And therefore he would receive no injury for want of notice. The reason for notice failing, the necessity of giving it is superseded. The acceptance by the drawer made no alteration in the rule. Notice of non payment was not necessary because of no use to the drawer. The proof of tha event of funds was conclusive, it arose from the repeated confession of the defendant himself. Nor was there any weight in the objection to the competency of Mr. Troup's testimony, his information being received in the character of a fnend, and not in that of counsel. The want of funds in the hands of Mr. Burrow's, was sufficiently proved independant of any facls contained in the plaintiff's answer to the defendant's bill in chancery.

It is therefore unnecessary to say, whether the whole answer ought to have been received as evidence or not.

Motion denied.

On a reference if a receipt given after the rule made, be offered in evidence on the part of the dc

Joseph Hawkins and others, against S. Bradford. VAN VECTEN moved for a rule, against the referees in this suit, to shew cause, why an attachment should not i-sua against; them for not making up their report, or that they be ordered so to do. The affidavit on which the application was founded set forth that at the meeting of the referees,

after the counsel of the, plaintiffs' had opened their case, and itated the nature of their demand, the counsel for the defendant presented a plea to the referees on receipt of which they refused to hear any testimony on the part of the plaintiffs, and neither reported any thing due to them, nor did they make any report in favor of the defendant.

Spencer contra, resisted the application and submitted to the conrt a special statement of the matter in the nature of a report. The facts as there stated were, that after the due assembling of the referees, &c. they called on the counsel of the plaintiffs to specify his client's demand, which, excepting the question of interest, was originally admitted by the defendant's counsel to amount to about ItOO dollars, but that there was a defence, which would supersede die necessity of proving the exact sum claimed, though it might be ascertained by the books and bills before the referees; that the defence was payment of 1469 dollars in full satisfaction, for proof of which a receipt was offered in evidence and an acknowledgment, under the hand of the defendant's attorney, admitting certain things which the subscribing witness would have sworn to, if present. That the plaintiffs objected to the admission of this testimony, but before the question of admissibility could be argued, the defendant produced the following plea. « And now at this day, that is to say on the 19th day of u July J80S, before George Hale, Samuel Edmonds and "Roswell Hotchkis referees herein appointed, it being the u first day and time of their meeting hereon and upon "the matters referred to them in the above cause, comes "the said John, by Erastus Root his counsel, and says that "the said Joseph, &c. ought not further to maintain their "said 'action against him the said John, because, he says, ** Aat after the 14th day of May last past, from which day, "day was given to the said referees to make their report "until the first Monday in August next before the justices "of the supreme court, &c. at the city-hall of the city of "Albany aforesaid, the aforesaid attion was continued, to "wit, on the 28th day of May in the year aforesaid at the "city of Albany in the county of Albany aforesaid, the * said John did pay to"the"said Joseph, &c. the sum of one

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fondant, and objected to by the plaintiff, the special matter and fait* should not be returned to the court, but the referees should admit it and make the report upon it that the party aggrieved may bring it fully before the court. Query If a special return of fa£U without a decision be, in any cate a report within the meaning of the rule.

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ABLANY, « thousand four hundred and sixty nine dollars in full sa« tisfaftion, anddischarge of all and singular the matters and "things and the sums of money due to the said plaintiffs and « for the recovery whereof this aforesaid action hath been . «* brought and prosecuted, and which said sum of one thou

« sand four hundred and sixty nine dollars was then and "there accepted, taken and received by the above plaintiffs, "in full satisfaction and discharge of all and singular mat« ters and things, and of the sums of money due to them *• and for the recovery whereof this aforesaid action hath "been brought and prosecuted, and this, &c. wherefore, « &c. That thereon the referees adjourned the further hearing and returned the said plea.

This was a report, it was all the referees could do as they could not undertake to decide, whether the plea was good or not, that being matter of law.

Per curiam. The motion is that the referees be ordered to make a report, they having, instead of that, made a special return of all the facts, to which they have annexed the plea of the defendant offered to them at the hearing. The application must be granted, therefore let the rule be thai the referees report by the first day of next term. N. B. After giving the opinion of the court, Kent J. observed, that their honors would advise the referees in making up their report to allow the receipt, if they believed it genuine, and to have been fairly obtained, in order that the plaintiff, on whose affidavit the application was made, If he thoughr himself aggrieved, or that it was improper to allow a receipt given after the rule to refer, might apply to the cour to set aside the report on that ground, at which time the question might be fully argued.

THE COURT desired that all cases submitted to them without argument should be so indorsed, because they mij;: otherwise be laid aside under an idea that an argumc: would take place.

Jackson, on the demise of Le Roy and others, against Abraham Sternbergh. wSdJtof tvi- THIS WBS an a£tion of eJe&ment, brought for the toieuic. covery of lands situated in Scoharie, in a patent grantc« toMradert Schuyler and others, tried at the Scoharle circuit, Ob the 30th of May 1802, before Mr. justice Thomp

On the trial it was admitted by both parties, that the

htic to the premises in question, was once vested in Rip

Van Dam; and that it was included within the equal one

•eventh pan of the said patent, which fell to the share of

the said Rip Van Dam, who was one of the patentees of

the said patent.

Al» that the title of the said Rip Van Dam to the whole of the equal and undivided one seventh part of -the said patent, which included the premises in question, was legally Conveyed by the said Rip Van Dam, to Johanne* Sduetter, Henrick Schaeffer, Teunis Swart, and Henrick Van Valkenbergh.

The plaintiffs gave in evidence, a deed from them to Jonas Le Roy, dated in January 1730—31, realeasing "all the "one full and equal seventh part of all the undivided lands *• between Sctharit river and the hills, from Fox's creek "to a place where two rivulets or runs of water come in ." one, and fall or run in Scoharie river, by north of Gar"lkktTown." After this, was adduced the will of Jonas Le Roy, made in January 1749—50, by which he devised the one half of the lands owned by him in Scoharie, to Levinus Le Roy, and the other half to David Le Roy, after tie death of Maria his wife. It was then proved that David died, leaving an only son, named William, one of the lelfors of the plaintiff, in behalf of whom Adam B. Vroman further testified that, about fourteen years since, the defendant himself shewed the comers of the lot called No. 156, and its boundaries, which included die premises in question, and said it was Le Roy's lot. That one of the lessors, Levinus Le Roy, about the same time requested the witness to take charge of this lot, and see that there was no waste of timber, that it had always been called Le Roy's lot. That it had never been cleared or fenced till about four or five years since.

Peter Becker deposed, that Le Roy's lot lay north of Fox's creek, and south of Crab's hill, between the hills and Scoharie creek, but he did not know whether lot No. 155,

ALBANY, Augslt 1803.

Jackfon

T.

Sternbergh.

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