Morning herald. [volume] (New York [N.Y.]) 1837-1840, 1838-01-25

CeuRT OF COMMON PLEAS, Jan. 23-BesOre Judge,
Ulshoeffsr.
The whole time OF the Court this day up to nine
o'clock al night was occupied in listening the tes-
timony and arguments in the case of Milford Smith
versus Morris Franklin, the Notary public This ia
the fourth time this has been tined, and it in
wolves the interest Of the mercantile community to
enormous extent on the one hand, and the interest
of the whole body of the noares public the other
hand, of course all that money, legal acnmeD, skill,
and manGuvrlng could effect has beeu accomplished.
To cat the mntler very short, we will SIMPLY say
that the case is now set at rest and as we trust for
ever. The notaries public are by this simple verdict
made liable in all cases where they give notice to-,
the enderser OF the note, and where the maker be-
mes nsovent.
The testimony was much the same that given in,
our paper Of the l2ih instant, when Judge Irving,
charged that he did not think the plaintiff bad clearly
proved that there no notice left Of the protest
on the promises of the endorser.
On the present occasion, however, the notary boy
produced, and he swore that he went to all four
of the corners of Canal street and Roadway, and
found no such name up that of Mr.. John Wright,
the endorser fe, the jury gave verdict for the
plaintiff, because they thought the notary ought to
have found the endorser he having his sign upin
Canal street.
The Judge charged the Jury to remember thatthere
was an agreement between the maker and the en-
dorser that when the note became due the endorser
was to take the place Of the maker. BY this act the
endorser waived his right TO receive notice OF pro-
test from the notary. 1t was then for the Jury 10
Wnetner,
case this agreement was understood by Mr.. milford
Smith the bona fde holder of the note, at the time
the note was paid to him. or if ne understood this
agreement at any time before ne brought the orr
g,na trial against Mr.. Wright the endorser II he
did so understand it, he ought to have shown
il on the first trial. and he could have got Judg-
against Wright; and his presen, action against
the notary must fall through. But il the jury thought
that the plaintiff IN way party TO this trans
action; or that the fact of the agreement if told to
Smith at all, was told 10 him in such manner, as he
either could not understand or could not avail HIM
self of that then his present action was good one,
and the notary was liable.
H fdd d that If notary only received % cents
for drawing notice of protest. and copy, he then IS
tabe for mons fNice OF the protes but II ne re-
lives as much 10 cents, he is bound to give no.
ce all the endorsers and If he fail TO do this, he
is liable the bona fde holder of the note, in case
the maker las in the present insisnce) becomes in
solvent.
The jury therefore mulc,ed the notary in the
amount of the note Sl07 So With interest, costs and
fees &c. &c.
Wednesday Jan. 24ih.-Two cases were tried TO
day between III in the morning ard atngh in which,
ali the defendants were watchmen. The first case
was that of a young female named Sarah Winnie,
by her next friend Michael Ma cGarvn) against John
Prang, Seth Duncan, and James Freezing all three
city watchmen II appeared that one Of these leath
er headed Chareys, Praag, lived in the same house
with the plaintiff and her stepfather, Mr.. MacGaryin
that he had quarrel with Miss WINES sister. He
came TO the police Office and although he was big
powerful fellow, and she weak little woman, he
swore that she had committed an assault on him, and
he was apprehensive she would commit battery on
him. He procured q warrant the warrant was q.
20 Capt Knapp; the parties lived in Wafer street
at the corner of Walnut street.
Al night the Waterman, Prang asked Cept. Knapp
for the warrant; il was gwen 10 him he then teok
the other two defendants with him, and rummaged
Macgarvln's house from top 10 bottom, but did not
find the female they wanted; as they were csmlng
away, Macgarvn saw them, and asked their bus,-
ness; they answered him saucly The was about to
put them out, when they cnched him, and were drag
Qing him of. The plaintiff Miss WinAe, cried out
ooh, no. nay dear father, you shall not go the watch
watch" and laid hold of him. For this very natural
act they took her TO the watch house. And Tor this
very brutal act and outrageous conduct on their part
the jury very properly muIcted them oil in the sum OF
500 each, and costs.
The second case was that of MI. Fort versus Cant.
Van Benhuyscn, of the city waish. IL is unnecessa-
ry to 60 into details of the evidence; Suffice TO
say, that Fort keeps porter house IN Chapel
street, close TO Riley's, 9Th Ward Hotel Some
young men in front Of his house about 10 At night.
drove a negro wench off the side walk King the
Waterman, did not talk TO them about this but hear
ing them say, Wonder what that leather head
stands there fort he then fetched Van Benthuysen;
the latter began taking the others to task for carg
the Charley aleather lead, and Fort came out "Do
you keep this house." said Van b. 81 do" said
Fort. It's disorderly house" said Van b. ct
Van B. then raped and threw his club out OF his
handl the watchmen came; seized Fort and one Of
his Fl ends, and dragged them to the watch house.
after, as King said, tickling them with his club not
over the head but over the other endp'
The Judge charged that this was an action 10 re.
cover damages for an alleged false imprisonment
Damages in civil cases were intended 10 COMPENSATE
the agsrieved parties for the injuries received Some
times in addition to this damages are gwen fer exam
Piles sake Where public officer oversteps his duty,
and uses high handed authority insult or njure CT
izen II is night to give damages for the sake of pun
ishnR the officer, as well as for examples sake
Alter the watch 10 set at night they supcrsede all
the other civil auhoriies-theya preventive police
and they arrest any they see commit breach
of the peace, without having warrant of mere
view of the assault But mere words of any kind.
made use ofby citzen-cannot Justify an assault by
a Waterman.
The offence by the citizen must be by acts not by
words. II party Of men assemble in the streetapd
talk loud-the watch comes up--the men use abusive
ephets to the waich-but he can't interfere TO arrest
any OF them, when they do not commit a breach of
the peace The question Of the agqressor in the pre-
sent case, and the amount Of damages was for them
TO determine from the evidence.
sealed verdict is to be brought in today Thurs-
day. at III O'Clock.
PeLrcE, January 24th.-A person who has hitherto
borne toersby respectable character was arrested
this day on charge OF arson in setting fire to GER
tain premises, somewhat recently burned for reasons
best known to himself and another Az the exami-