NEW-YORK, the defendants have, and had, a *right to use the water. The COLDEN V. ELDRED. Judgment for the defendants. The remedy by distress and sale of beasts, given bystatute, COLDEN against Eldred. IN ERROR, on certiorari to a justice's Court. The defendant in error brought an action of trespass in the damage feasant, Court below against the plaintiff in error, for damage done to Sess. 36. c. 35. his grain by the sheep of the latter. The plaintiff below proved s. 19, (2 N. R. the trespass and damages, and the defendant below offered proof not take away to show, that the sheep had been distrained and impounded by the common the plaintiff: the evidence, being objected to, was excluded by action of tres- the justice. A verdict was found for the plaintiff below. L. 134.)(a) does law remedy by pass. (b) Where beasts, damare feasant, trained, or even relinquish the satisfaction for sustained, and In an action ter of defence, Per Curiam. The only question in this case is, whether the have been dis defendant ought not to have been permitted to prove that the impounded, the sheep had been distrained and impounded for the same trespass. distrainer may The remedy, by distress, given by the statute, is cumulative, proceedings by and the plaintiff may, if he pleases, pursue the common law distress, before remedy by action of trespass. Had the plaintiff followed up the damage his remedy by distress, according to the provisions of the statute, which has been or had the merits of his right to recover been tried, it would bring the action have been a bar to the action of trespass. But the defendant's of trespass. offer did not go far enough. The distress offered to have been for trespass by proved does not appear to have been followed up by the plaincattle, it is mat- tiff; there might have been some irregularity which rendered it and to be shown necessary for him to abandon it; and the mere distress, or even by the defend impounding, if relinquished, would be no satisfaction for the fence which the injury. This part of the defence was, therefore, properly explaintiff was cluded. The evidence showed, very satisfactorily, that the in repair was sheep got over that part of the fence which for several years had been kept up by the defendant as his part of the division fence; and this was enough, at least, prima facie. What the situation of the fence was, or whether there were any rules or regulations of the town on the subject, does not appear. It, however, was matter of defence, and to be shown, on the part of the defendant, if any thing existed which would excuse the trespass. The judgment must, therefore, be affirmed. ant, that the bound to keep defective. [* 221 ] (a) 2 R. S. 517. Judgment affirmed. (b) Vide Turnpike Co. v. Coventry, 10 Johns. Rep. 389. Almy v. Harris, 5 Id. 175. HAIGHT. Where judgment a of the Court of Errors, affirming a judgment of this Court, is affirmed by the Su the Unite: THIS cause, (see vol. 13. p. 561-590.) having been carried by writ of error to the Supreme Court of the United States, was there affirmed, with damages and costs. The judgment of affirmance was rendered on the 27th of February last, and the mandate of the Supreme Court of the United States to this Court was presented and filed the first day of the term. The preme Court of Court above awarded the interest at the rate of six per cent.; States, and a question now arose, on the taxation of costs, whether the writ from tha: Court, interest was to be computed to the first day of this term, or only interest on the to the 27th of February, when the judgment of affirmance was judgment is allowed only to given, there being no direction, in the mandate of the Supreme the time of renCourt of the United States, as to the time to which the interest dering the last was to be computed. Hoffman, T. A. Emmet, and C. Graham, for the plaintiff. Baldwin, contra. Per Curiam. This Court cannot pronounce any new judg ment in this case. It can only carry into effect the judgment of the Supreme Court of the United States. In the computation of interest, therefore, the taxing officer must not go beyond the time of the judgment of affirmance, that being *the last act of the Court above. The practice in this respect, in our state Courts, is regulated by statute, which cannot apply to this case. on of error judgment of affirmance. [* 222 ] RYCKMAN and another against HAIGHT. THIS was an action of assumpsit, for work and labor, and materials found, and goods sold and delivered; and the declaration also contained the usual money counts. B. Haight, for the defendant, moved for judgment as in case of non pros, on the ground that the plaintiff's had not furnished to the defendant a bill of the particulars of their demand, pursuant to the order of the recorder of New-York, for that purpose. (Fleurot v. Durand, 14 Johns. Rep. 329.) Wilson, contra, read an affidavit, stating that the plaintiffs were ready to deliver to the defendant a bill of the particulars (a) Gay v. Cary, 9 Cow. Rep. 44. VAN DEUSEN V. VAN SLYCK. the NEW-YORK, of their demand; but to enable them to state the credits with May, 1818. accuracy, they had applied to the defendant for an account of moneys he had paid to them, which he had refused to give. He stated, on the authority of the case of Adlington v. Appleton, (2 Campb. N. P. Cas. 410.) that unless the plaintiffs could also state the credits, so as to show the precise balance claimed by the plaintiffs, it would not be a compliance with the judge's order; yet the plaintiffs were ready to give the particulars of the debit side of their account, and of the credits, so far as they were known. [* 223] Per Curiam. The practice of this Court is merely to compel the plaintiff to specify the particulars of his demand. We consider the bill of particulars as an amplification of the counts in the declaration. The defendant must know, as well as the plaintiffs, what sums he has paid, and if he is furnished with. the debit side of the account, he can readily ascertain the balance claimed. The defendant must take his rule, that the plaintiffs furnish a bill of the particulars of their demand, exclusive of credits for payments by the defendants, in ten days, or that a judgment of non pros be entered. Rule accordingly. VAN DEUSEN and VAN DEUSEN against VAN SLYCK and Wife. In actions for IN ERROR to the Court of Common Pleas of the county of torts against several defend Montgomery. dence against Court ought to ants, who join This was an action of trespass for an assault and battery, in pleading the general issue, if brought by the defendants in error against the plaintiffs in error, there is no evi- to which the defendants pleaded the general issue jointly, and one of the de- the cause was tried at the June term, 1817, of the Court below. fendants, the At the trial, after the plaintiff's below had gone through with discharge him their evidence, the counsel for the defendants applied to the on the trial, that Court for the discharge of John G. Van Deusen, one of the ants may have defendants, on the ground that there was no proof against him, the benefit of in order to give the other defendant the benefit of his testimony. his testimony. The counsel for the plaintiffs objected to his discharge, that both defendants had joined in pleading the general issue; and the Court, for this reason, decided that they could not discharge this defendant, although they were of opinion that there was no testimony against him, on which the jury could find his co-defend (2) Schermerhorn v. Schermerhorn, 1 Wendell's Rep. 119. Bohun v. Taylor, 6 Cowen's Rep. 313. him guilty. The defendants excepted to the opinion of the NEW-YORK, Court, and a verdict having been found for the plaintiffs below, the bill of exceptions was removed into this Court, by writ of error. Conklin, for the plaintiffs in error. He cited Buller's N. P. 285. Phil. L. of Ev. 61. Brown and others v. Howard, 14 Johns. Rep. 119. *Cady, contra. 1 Saund. 107. n. 2. Per Curiam. This case comes before the Court on a writ of error to the Common Pleas of Montgomery county. It was an action of assault and battery; and, upon the trial, no evidence having been given against the defendant, John G. Van Deusen, application was made to the Court for his discharge, that he might be examined as a witness for the other defendant. The Court admitted that there was no testimony against him upon which he could be found guilty, but decided that they could not discharge him, because both defendants had joined in one plea. In this they erred. In actions for torts against several, although they join in the plea of not guilty, one may be found guilty and the other not guilty. The rule has been long and well settled, in such actions, that where there is no evidence against one of the defendants, he is entitled to his discharge, and may be examined as a witness for the other defendants. If this were not allowed, great injustice might be done by including witnesses in the suit, for the express purpose of shutting out their testimony. (2 Esp. Dig. 364. Phil. Ev. 61. 6 Bin. 316. 14 Johns. Rep. 122.) The judgment must, accordingly, be reversed. Judgment reversed. May, 1818. VAN DEUSEN V. VAN SLYCK. [* 224] VOL. XV. 23 177 NEW-YORK, HOAR V. CLUTE. Where a person engages to er for a year, [* 225 ] at a whole time, and that he went HOAR against CLUTE, by BENSON, his Guardian. IN ERROR, on certiorari to a justice's Court. The defendant in error brought an action in the Court below, labor for anoth- against the plaintiff in error, for work and labor, and upon an order drawn by the defendant below, in favor of the plaintiff certain below, upon Ann C. Hoar, dated March 22d, 1817, for 15 price for the dollars. The plaintiff below proved the presentment of the on leaving his order to the drawer, who refused to pay it, and that the payservice before ment was afterwards demanded of the defendant, who refused, the expiration of the year, it alleging that the plaintiff had run away or left his service. The not appearing defendant produced a contract, entered into between the deaway without fendant and the plaintiff and his father, by which the plaintiff his consent, was to work for the defendant for one year, at 120 dollars. It hirer gives him a draft, in con- appeared that the plaintiff began to work some time in Januapast services, ry, and left the defendant on the day of the date of the order; which was not but whether with the defendant's consent, or not, did not appaid nor accepted by the draw pear; and there was no evidence of any complaint at the time, ee, in an action on the part of the defendant, on account of his leaving him. on the draft by The jury found a verdict for the plaintiff below, for the amount gainst the draw- of the order. the sideration of his the payee a er, the latter cannot defeat the recovery by original con Per Curiam. The judgment must be affirmed. It was in introducing the proof that the plaintiff had labored for the defendant between tract of service. two and three months, and the amount recovered was not more (a) "An order, not than an adequate compensation, according to the rate agreed negotiable, for on for the year. The contract, it is true, was for a year, but the payment of the circumstances disclosed by the evidence afford a reasonable money, and which has not presumption that such contract was rescinded, and that the been paid or accepted by the plaintiff quitted the defendant's service with his consent. The drawee, is not a order for the fifteen dollars bears date the very day on which he payment or ex- left the defendant, and no complaint appears to have been made precedent at the time. There was, at all events, a consideration for the tinguishment of a debt. (b) order, and it must be considered as advanced upon the plaintiff's wages, and not having been accepted, and payment having been refused by the defendant, there can be no good reason why he should not pay it. (c) It could not be considered a payment or extinguishment of the plaintiff's demand: it was not negotiable, nor had it been paid by the person on whom it was drawn, so that the defendant could not, in any way, be exposed to a second responsibility for the same demand. Judgment affirmed (a) Rapelye v. Mackie, 6 Cow. Rep. 250. |