Statement of the Case. At a "Onondaga County, Syracuse Police-office: ss. court of special sessions this day held, in the town of Salina, before the undersigned, police justice of the village of Syracuse, in said county, Amison Powers was convicted of having, on the 30th day of Oct., instant, feloniously taken and carried away one pair of pantaloons, of the value of seven dollars, the property of Samuel P. Dewey and Alexander Thompson, at Salina aforesaid; and upon such conviction, I did adjudge that the said Amison Powers should pay a fine of five dollars, and stand committed until paid; which was paid to the undersigned, and the defendant discharged from custody. Given under my hand, the 31st day of October 1846. Indorsed-Filed, Nov. 16, 1846. WILLIAM A. Cook, The defendant's counsel objected to the reception of this certificate in evidence, but the court overruled the objection, and admitted the evidence, to which the defendant excepted. The defendant then offered to prove that, on the evening of his arrest, upon the complaint before the police justice, he was committed for trial, and not as a person convicted; that the next morning, he was brought before the police justice, and denied the charge of stealing; that he was not tried; that he settled with the owners of the property, and was dismissed, without payment of a fine. This evidence was objected to, as going to impeach the record or certificate of conviction; and was rejected by the court; to which an exception was taken. The prisoner was convicted on the indictment; and the conviction having been affirmed by the supreme court, he sued out this writ of error. Opinion of the Court, per JEWETT, J. Anderson, for the plaintiff in error. Gardiner, district-attorney, for the People. *JEWETT, J.-There are but two questions [ * 51 raised by the bill of exceptions in this case. The first is upon the admission in evidence of the certificate of conviction, made by the justice, and filed in the office of the clerk of the county of Onondaga; and the other is upon the rejection of the evidence offered on behalf of the prisoner, to contradict the fact of a trial and conviction, as set forth in the record or certificate of conviction. I think, that both questions were correctly decided by the supreme court, and that it is unnecessary for me, here to repeat the reasons sustaining the judgment, which are so ably given by the learned judge who delivered the opinion of that court, for giving the judgment. (7 Barb. 462.) The counsel for the prisoner, on the argument in this court, made a point, which was not noticed, if made, in the supreme court; namely, that the indictment is insufficient, because it does not charge the facts necessary to show that the justice acquired jurisdiction over the person of the prisoner, to try and convict him of the first offence of petit larceny. The point made in the court below was, that the certificate of conviction should show that the justice had jurisdiction, and that because it did not, it was inadmissible in evidence of the fact of conviction; and not that the indictment was bad, because it did not allege the facts necessary to show such jurisdiction. It is a general rule, that the facts of the charge must be set forth in the indictment, that the defendant may clearly understand the charge he is called upon to answer. In this case, it being the object of the indict 1 See People v. Neilson, 16 Hun 214; Ex parte Hogan, 55 How. Pr. 458; Ex parte Travis, Ibid. 347. 1 Opinion of the Court, per Jewett, J. ment to charge the prisoner with a second offence of petit larceny, it was essential to such charge, that the indictment should state facts to show that he had, prior to the last offence, been convicted of the previous offence in due form of law. And as the conviction is alleged to have taken place before a court of special and limited jurisdiction, the indictment should have alleged such facts as would show that the justice, holding such court, had jurisdiction as well of the subject-matter as of the person of the prisoner. (1 Chit. Cr. L., ed. 1819, 138; Cornell v. Barnes, 7 Hill 35, and note.) *The indictment in this case, in order to show * 52 ] a conviction of the prisoner for the first offence, in due form, should have, preliminary to the statement of his trial and conviction, stated the charge made against him before the justice, and in what form, the proceedings had before him upon it, and the issuing of the process thereon, his arrest and being brought before the justice; showing thereby that there was a charge for petit larceny made in due form against him, and legal process issued for his arrest thereon; that he was arrested, brought before the justice and elected to be tried for the offence charged, before the justice, pursuant to the provisions of the statute in such cases. Such allegations would have shown jurisdiction in the justice of the subject-matter and of the person of the prisoner. Instead of them, the indictment alleges, in general terms only, that the court before which the prisoner was tried and convicted, then and there, had competent power and authority to try and convict him for such offence. But the objection now made to this indictment, comes too late to avail the prisoner. The defect complained of, is a matter of form merely; I do not see that it tended to prejudice him. And 2 Rev. Stat. 728, § 52, provides, that no indictment shall be deemed invalid, nor shall See People v. Cook, 2 Park. 12. Opinion of the Court, per JEWETT, J. the trial, judgment or other proceedings thereon be affected, by reason (among other defects named)" of any other defect or imperfection in matters of form, which shall not tend to the prejudice of the defendant." The judgment should be affirmed. Judgment affirmed. * In People v. Golden, 3 Park. 330, the supreme court, on the authority of this case, sustained an indictment, setting forth the jurisdiction of the special sessions, in the same general form; holding that such defect could not prejudice the prisoner. And see Gibson v. People, 5 Hun 542. 55 Statement of the Case. WILSON V. HERKIMER COUNTY MUTUAL INSURANCE CO. Policy of Fire-insurance. A misstatement of the relative situation of the neighboring buildings, avoids an insurance upon personal property; there is no distinction, in this respect, between an insurance upon the building, and one upon the merchandise contained in it. APPEAL from the general term of the Supreme Court, in the eighth district, where a judgment upon a verdict in favor of the plaintiff had been affirmed. This was an action of assumpsit, upon a policy of insurance, whereby the defendants insured one Charles L. Mann against loss or damage by fire, to the amount of $2000, upon a stock of goods, in a store in Lockport, for the term of one year from the 25th November 1839. Mann sold the goods insured, and assigned the policy, to the plaintiff, with the assent of the defendants, on the 7th September 1840. The goods were destroyed by fire on the 26th of the same month. The declaration was in the usual form; and the defendants pleaded the general issue. The policy described the subject of insurance in the * 54] following terms: "On his merchandise *in the store occupied by the assured, in the village of Lockport, such goods as are usually kept in a country store, $2000."***"Reference being had to the application of the said Charles L. Mann, for a more particular description, and as forming a part of this policy." It also provided as follows: "It is also agreed, that this policy is made and accepted, subject to, and in reference to, the terms and conditions of the act of incorporation and bylaws of the said company, which are to be used and |