The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1849-09-24

Common Pleas
Before Judge UlshoeHer
6srr. 1B.-Edpdrd Eiswsyh ps Wi!liSw A Foster ct
sTbis was an action check Of the defendant for
dated 9th December lS48 payable to the order Of
Irish Davis, and by him endorsed the plaintiff loaned
?lhs on the check to Davis In uncurrent money week
refused At the bank fer want Of funds The defence
was usury and that notice Of non payment was not
$ls7 Oh f
skrr 1s-Erawder Kemp rs Orlando q. Forsvh-
This sctisn for libel The plaintiff is master OF
vessel in the California trade and the defendant
pesred that In 1S4e the plaintiff being then chief
OF vessel trading to South America was introduced
BY man named Pratt to the defendant who gave to
plaintiff three gold watches and two gold chains to
by him sold at the port Of his destination proceeds
including half profits to be paid to on his re-
turn, and the watches not sold to ereturned in
kind the plaintiff met with disaster the voyage,
and on his return could neither pay tho proceeds give
back the watches and chains but said that he
could get money he would pay for Thorn Several
angry discussions took place between plaintiff aud de-
fendant, and much reorimn alton and finally the de-
fsndant wrote the letter containing the libel TO MIR.
Pratt who had introduced the parties to each OF Their
The letter was dated the oath Of March 1s48 and was
addressed to VIM. w Pratt. II commenced by stating
that the writer had just heard that Kemp sailed, and
he Intended to put officer on his heels ON the
day of sailing, but that he bad been telling him
truths to get of without his knowledge The writer
then complained Of Pratt for Introducing him to the
defendant ~ man verify OF confidence, aud recon-
mending him as safe person to deal with; that no
. swindler and liar and that he would have him
goods under false preteDcee, and for unlawfully
tanning them. &c. The letter put in and read,
and the plaintiff rested For the defence it stated
that the defendant resided in Brooklyn and was
dealer In watches and swelry, and that previous to
the transaction In question he had no soqusintance
with tn plaintiff Shortly before that time Pratt and
plaintiff called at his store, when the former intro
duced the latter to the defendant person who
trading between New York and ssme port In Mexico,
and desrous Of gettRg articles to take out
there Tor sale After the introduction Pratt and de-
PENDANT entered into negotiation which ended in
ohArrIH foka
and two chains to be by him sold in Mexico for which
no was to ray certain price to Forsyth, and also ta
event Of his not selling the watches to give them back
to Forsyth on his return 1t further appeared that
seeing him. and that when he did him he said that
Of the watches had been taken from him by a
tom house officer that he had sold another and that
he had the third In his possession, which he intended
to keep for his own Defendant then called upon
him to pay for the watch which he had sold, aud to
return the he had in his pocket Plaintiff refused
but ssd ~ he was in funds he would ray for
all Defendant then called on Pratt to consult with
the present suit Alter counsel summed up the Judge
charged the jury who without retiring, brought In
verdict for defendant
SEPTEMBER 20 The Mercantile nsrane. Company u.s.
Spauidng and Others, Of the Great Western Trans
portstton and Forwarding Line-Tbs action to
recover s444o The facts and circumstances Of the
case seem to be as follows In ls4s, eight western
merchants from the States Of Indiana Ohio aud Mich
gan purchased goods in this city and them the
defendants store to be forwarded to their places Of
destination having fret insured them with the plain
tifs and having received the Defendants receipts for
the goods. The latter put them on board the barge
"Superior owned by the Swiftsure Line. to be for
wsrded to Albany The goods arrived In Albany, and
were there landed and put In store, preparatory to
their being put into another boat and sent to
Buffalo Before this could be done, the great nre
which happened in Albany, In 1913, took place, and
plaintiffs paid the the amount insured and now
seek to sgainst tho sporaen company on
the ground that ths latter are common carriers and
that they 1.-THE plantihs) having paid the owners the
amount Insured, they stand In their shoes and
titled to recover from defendants There three
defences set upFrst that the goods to the
defendants under express contract entered into
between the and the defendants by which the
expressly assumed the risk OF damage by fire.
SO and, moreover, the contract entered into on
the basis that should be released those
risks and upon that the insured
with the plaintiffs and paid them the amount Of the
risks instead Of paying them to the defendants The
next defence was that the defendants
put the goods board the barge SUPERIOR, owned
by the Swiftsure Line, different company; and that
II there a. any liability In the IL the Swift
sure Line that liable. And lastly, that II they
(the defendsnts) were common carriers they could
be made liable nasmuch as the goods we're lost by
accident, attributable to the act OF God and not by
the negligence OF any OF the parties entrusted with
their care The jury found verdict for the plaintiffs
for the amount claimed subject to the opinion CT the
full court upon case to be made
Ioveito Smith, BY her Guardian, Georse b. Smith rs
Stas Wood This was an action to recover damages
for injury received by the plaintiff through the al
legged negee Of the defendants servants ana work
men IL appeared that dsfen dsnt Is owner Of house
and LOT IN Roosevelt street; that In May, lsts he
ployed persons to pull down the house aud rebuild i
the contract TO pull down entered into on the 4th
OF May, aud on some day between that and the 9th,
the operation OF pulling down commenced on the 9th
the roof had been taken down TO very near the walls
and In the forenoon Of that day the plaintiff An inte
resting child Of about eight or nine years old was
either going from her own house in m. .tra. 20
fchool. Was returning from school to her house,
(Which did not distinctly appear) and IN passing, a
brick Was either accidentally thrown fell, and hit
the child the head she fell seseess from the force
Of the blow, sod was picked up by policeman, named
Cuban, who happened TO be near when the accident
occurred and taken to q dostor's, but was brought
back by him again, and then taken home Doctor
sleignt vas immediately called IN and examined her
head and found that the skull badly fractured
that she had to he trepsnned and y still In very
delicate state Of health particularly when thors Is
change OF weather. The plaintiffs counsel insists
that defendant was guilty Of gross negligence la not
putting up fence or scaHoding so AS TO prevent per-
coming on the side walk during the operation OF
pulling down the house and ought to be made to re-
spond IN damages. The defence was that although
Mr. WOOD was owner Of the lot, be was aot owner Of
the tenement at the time of the accident; that on the
4th day of May he had contracted with three persons
Of the name Of Ryder. Ware and Cassdy-the srst a
carpenter, and the other two masons-to pull down
the building aud Go furnish materials 20 put up new
house the lot that they with their workmen werc
but his worsmen but q. contractors
on their own responsibility, and II any liability has
been incurred they alone liable He slso insisted
that n the plaintiff was injured II was through her
own csrelessness and neglect In coming too the
building.
SIR u-smifh w her Guardian. r., Ws,i-Thl
cause resumed this morning. aud the evidence on
both sides closed Counsel then summed up aud his
Honor charged the jury after giving briof history OF
the He ssid the fret remark TO bs made and
which was common one, was that the plaintiff must
prove her She first bound to prove the Injury
to herself and secondly, that II from th. care
lessness 81 the defendant his workmen or servants
You have heard the testimony % the plaintiffs wit
and likewise that Of Rider the part Of the de.
fendant and you to say whether the been
substsntisted not her part IL l. here necessary
TO remark that where the testimony Of witnesses con.
hots you TO compare u carefully; also their man
the stand their interest In the after In dis
puts and the relative situation In which they stand to
the parties There IL con hict between tine testimony
OF Cuthane and Ryder-the former that they
stood the sidewalk at the time the accident hap
pened and that Ryder WAS doing nothing; while nv
der they stood In the middle 81 the street. and
that be wsrxing the people away IL Ia not no
cersary for to remark further the dsscrepaucy
between them; you have heard them yourselves,