DILTS vs. TRIMMER.

ON CERTIORARI.

AT the trial below, the defendant, Trimmer, who was also defendant below, gave in evidence a scaled bill, given by Alexander Ramsey to Nicholas Stillwell, and by Stillwell assigned to Dilts, and by Dilts to Trimmer, and contended that Ramsey was insolvent, and the money lost, and that the insolvency of Ramsey was known to Dilts at the time of the assignment. This assigned bill was allowed, and the defendant obtained a judgment in his favor, for $25 69.

Mr. Halsey moved to reverse the judgment, on the ground, that the assignee of a scaled bill could not resort to the assignor in case of the failure of a maker of the bill to pay, as was decided in the case of Garritsie v. Van Ness. (a) That if the defendant went on the ground of fraud in the assignment, it was a tort and not a subject of set-off.

BY THE COURT.-Whichever way it is taken, it cannot be supported. Judgment reversed.

KIRKPATRICK v.. MURPHY,

ON CERTIORARI.

ONE of the items in the state of demand, and on which a recovery was had, was as follows, viz:

To [*] half of an execution obtained against me and said defendant, to the amount of $35 his share.

The insufficiency of the state of demand was alledged as a ground of reversal.

BY THE COURT.-Merely that an execution or judgment was obtained against the plaintiff and defendant jointly, furnishes no ground of action. If the plaintiff had been compelled to pay the whole, or had done it at the request of the defendant, no doubt but he would maintain an action for one half; but as this case is stated, it lays no ground of action. Judgment reversed.

TAYLOR vs. HUTCHINSON,

ON CERTIORARI.

THE action below, was brought by Hutchinson against Taylor. There was a declaration for meat, drink, washing,

(a) Ante. 20.

lodging, clothing, and other necessaries found and provided by Hutchinson, for one Israel Taylor, the infant son of the defendant below. From the case disclosed on the argument, it appeared that Taylor put his son to Hutchinson as an apprentice to learn the blacksmith's trade; that the boy stayed with his master five or six years, and learnt his trade; he was not bound, but the father put him to Hutchinson until he was twenty-one years of age; that the boy left his master a year or eighteen months before he was of age. The action was brought for board and necessaries furnished the boy, while he lived with Hutchinson.

KIRKPATRICK, C. J. and PENNINGTON, J.-Were clearly of opinion, that the action could not be sustained. The board, washing, &c. furnished the [*] boy, was furnished him as an apprentice, and while the boy was serving the master as an apprentice; that if he had any remedy against the father, it must be on the contract. It did not appear that the father contracted to pay the board of the boy, and the nature of the transaction repelled the idea.

ROSSELL, J.-Doubted.

Judgment reversed.

Ewing and Armstrong, for the plaintiff.

Wall and Hunter, for the defendant.

POTTS vs. STOUGHTENBURGH,

ON CERTIORARI.

THE justice, in his record, had omitted to put down the month to which the summons was returnable. There was no appearance of the defendant. This was assigned for

error.

BY THE COURT.-The record of the justice is sufficiently intelligent. That says that the 13th April, 1811, the summons was issued returnable the 27th, that is, the 27th of the same month.

Judgment affirmed.

STEELMAN vs. COX.

ON CERTIORARI,

THIS cause had been adjourned several times, carrying it much beyond the fifteen days allowed by law; [*] but it had been done by consent; on the last meeting, on an ad

journment by consent, the justice adjourned the cause from the 11th, to the 25th of November, as he says, by his own authority. This was assigned for error.

BY THE COURT.-The adjournment cannot be carried beyond fifteen days without consent. There is not fifteen days given for adjournment, after the adjournments by

consent.

Judgment reversed.

ROGERS vs. WOODMANSE.

ON CERTIORARI.

THIS cause was referred, and the justice was made one of the referees.

BY THE COURT.-The justice cannot be a referee. He being the sole judge, must act on his own finding as a referee. Judgment reversed. (a)

SPRAGUE vs, CRANE.

THE judgment was reversed in this cause, because no state of demand was delivered the justice.

[*] TUCKER_ v8. SCOTT,

ON CERTIORARI.

Feme covert may not sue in her own name.

SARAH SCOTT, the wife of Alexander Scott, the action below, to recover the value of certain household goods, which she had put into the hands of Tucker, the defendant below, in confidence, to keep for her. Mrs. Scott had had a former husband, by the name of Haviland, who had died and left her in possession of the goods in question : after which she married Scott, who after living with her some time, left her, and had not been heard of for five years. The defence set up below was, the coverture of Mrs. Scott, the plaintiff, which the justice over-ruled.

(a) S. P. Ante, 414, 680,

BY THE COURT.-This, as it appears from the return of the justice, is a hard case; but the judgment cannot be sustained. A married woman cannot bring an action in her

own name.

Judgment Reversed.*

JONES vs. DE KAY.

ON CERTIORARI.

The reason assigned for the reversal of the judgment below was, that the justice admitted the book of account of the plaintiff below, in evidence, without proof that it was the plaintiff's book of original entry. It turned out, that the real objection was, that the book was of a suspicious cast. Some leaves had been cut out, and the account was kept ledgerwise.

BY THE COURT.--The book was admissible in evidence. The credit due to it was for the determination of the jury. Judgment Affirmed.

[*] RITTENHOUSE vs. SEARGENT.

ON CERTIORARI.

THE reason assigned for the reversal of the judgment of the justice was, that the justice has refussed to the defendant below, the benefit of the statute of limitations. The fact was, that the defendant had pleaded the statute; but the verdict and judgment were against him.

BY THE COURT:-This was a question of fact for the determination of the jury. It appears by the record, that witnesses were examined; it is not for this court to say that the jury have erred in deciding this question of fact. Judgment Affirmed.

MURRAY vs. M'DOUGALL.

IN DOWER.

Voluntary nonsuit irrevocable.

ON the trial of this cause at the Essex Circuit, before PENNINGTON, J. the demandant voluntarily suffered a non

*Quere:-Why cannot Mrs. Scott get some friend to take out letters of administration to her late husband, and sue for these goods, as administrator to Haviland?

suit; a rule nisi had been taken on the part of the demandant to set aside this nonsuit, and for a new trial, on the ground that the judge at the Circuit had admitted, on the part of the tenant, illegal evidence. The cause being called in its turn on the paper,

Van Arsdale for the tenant, brought up for the consideration of the court, as a preliminary question, whether in any case, the court would sustain a motion to set a nonsuit aside which had been voluntarily suffered. The demandant voluntarily, of her own free will and accord, departs the court, and abandons her cause, and now requests to be re-instated.

I. H. Williamson, for the demandant. If the [*] judge was correct in admitting the testimony, which we complain of, we have nothing to say; but if he was wrong, we were driven out of court by this erroneous proceeding. As the cause stood after admitting the testimony, it was clearly against the defendant; there was no use in taking a verdict. But we contend, that the testimony admitted on the part of the tenant, was illegal; if we are right in this, we ought to be re-instated, and a new trial awarded.

KIRKPATRICK, C. J. and ROSSELL, J.-Were of opinion, that the demandant, by voluntarily suffering a nonsuit, was out of court, and had precluded herself from any claim on the court.

PENNINGTON J.-It is every day's practice to set aside a nonsuit improperly ordered by the court, if a judge at the Circuit, has, by illegal admission or rejection of evidence, driven the plaintiff to suffer a nonsuit. I am not satisfied but that the nonsuit should be set aside, and the plaintiff re-instated; and incline to the opinion, that the plaintiff be heard on the illegality of the testimony admitted at the Circuit. Rule refused. (a)

(a) Vide 1 Sell. 466. Burr. 2692. 1Taunt. 10.

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