W. Neilson, on the partition of lands.-Phelps ads. Higby.-&c.

trial, and it is incumbent on the plaintiff to contradict this proof, if he be in fact alive.

W. NIELSON and others, on the partition of lands.

ORDERED the rule to plead in partition to be 20 days, and it is not necessary to serve the rule more than in ejectment ; the parties having notice of the application is sufficient.

PHELPS and wife ads. HIGBY.

A delivery of the narr. in chief, cures a defective notice of bail, and acknowledges the sufficiency of the bail.

WATSONS ads. HALSEY.

ON a motion for a new trial on the ground of the discovery of new evidence, if it tends only to impeach the former witnesses, is not enough of itself, and the court will still judge of the weight of the testimony.

2d. Swearing that other witnesses are also material without stating their testimony, is also insufficient.

A new trial awarded on the ground that the verdict was against evidence.

SMITH ads. Dow.

1st. An adjustment of a policy is, prima facie, sufficient evidence for the plaintiff.

2d. The court will not inquire into a defence founded on facts which, at the time of the adjustment, were fully in the knowledge of the defendant.

3d. If there appear fraud or mistake, the adjustment will not conclude.

4th. A schooner of 35 or 40 tons, not considered sufficiently manned for a voyage from New York to Edenton, by the captain and one hand only.

On the last point, a new trial awarded to examine and determine it by jury.

THE PEOPLE against YOUNG.

1st. In order to punish a person as for a second offence, it is necessary to charge the first offence in the indictment, and he must be found guilty by the jury, of having committed a second.

2d. The sessions have no jurisdiction of a second offence, which thereby is punishable with imprisonment for life.

Hallet ads. Huguet.-Potter v. Briggs.-&c.

HALLET ads. HUGUET.

THE plaintiff by proceeding in the original suit, waives further proceedings on bail bond suit, and cannot proceed on both at the same time. The costs of the bail bond suit, until the time of entering special bail, are however to be paid.

POTTER against BRIGGS.

MOTION to amend a sheriff's return on the part of the plaintiff, denied; the return having long since been made, and it being a competent return of a rescue; if it be false, the plaintiff must be left to his remedy by action.

In the matter of JAMES MANNING.

ONE who prosecutes a felon to conviction, is not of course entitled to his expenses by the act. It is on a consideration of the circumstances of the prosecutor only that they are to be allowed.

STEEL and FULLER ads. TENANT.

JUDGMENT on the bail bond directed to stand as a security, a trial having been lost, but the defendant swearing to merits, he is permitted to defend on pleading, &c. instanter.

Hoyt ads. Murry-Beatty v. Bruyn.-Valentine ads. Manhattau Co.

HOYT and Toм ads. MURRAY and others.

JUDGMENT of nonsuit granted, although the plaintiff had taken out a commission which was not returned, it having been out an unreasonable time.

BEATTY ads. JACKSON ex dem. BRUYN and WIFE.

MOTION by default for leave to make out a case, the time having expired, was denied; no reason for the laches being given.

VALENTINE ads. MANHATTAN COMPANY.

A prisoner once supersedable for not being charged in execution, may still be charged at any time before supersedeas allowed. Vide Brantingham's Case, ante.

AUGUST TERM, 1803.

ABBOT against BROOME.

A master re-purchasing a ship for the benefit of all concerned which was not afterwards adopted or ratified by the owners, is not a waiver of an abandonment and of the claim for a total loss.

Coulon v. Bowne.-Lyle v. Clason.-Clason v. Lyle.-&c.

2d. Having once abandoned, and an acceptance of it refused, they are not bound to tender the ship, &c. again after its arrival here.

3d. In such a case a sale here at auction for the benefit of the underwriters is justifiable. Vide United Insurance Company ads. Abbot.

COULON against Bowne.

A representation equivocal in itself and capable of different construction in its grammatical and popular sense, without being required to be explained at the time by the assurer, held not to vitiate the policy.

LYLE against CLASON.-CLASON against R. & J. LYLE

THE same referees were appointed in both these cases, and they blended the demands in each suit, and in both reported in favor of the defendant. Both reports were therefore set aside; the suits being between different parties, it was not proper to blend them, and the rules of reference were discharged.

ARNOLDS ads. BAKER & ROWLSON.

THE payee and endorsee of a note may be admitted to prove the time he endorsed it, to show it was then overdue; this is not impeaching its validity, which, if attempted, must still be done by other proof.