Volume 1 — Barbour's New York Supreme Court Reports

This was an action of assumpsit, brought to recover the amount of a promissory noté for $275, executed by the defen dant, and payable to one of the plaintiffs before her marriage with her husband, her co-plaintiff in this suit. The cause was tried at the Tompkins circuit in August, 1845, before Edmonds, circuit judge.

An action was brought in the common pleas of Jefferson county, by the present plaintiffs in error, as overseers of the poor of the town of Clayton, to recover penalties for the violation of the excise law, (1 R. S. 677,) and judgment was rendered in that court in December, 1846, for the defendant, and against the plaintiffs, for costs.

<p>This is an action of covenant. The declaration contains several counts, in each of which the instrument counted upon is set out, and but one breach assigned. The defendant, after .craving oyer, pleaded non est factum, and then demurred to each count, commencing the demurrer substantially as follows: “And the said defendant says that the first count of the said plaintiff’s declaration is not sufficient,” &c. The plaintiff thereupon moved that the defendant be compelled to elect whether he would abide by the plea, or by the demurrers.</p>

In E gouty. The plaintiff filed his bill setting forth that he was the owner of real estate in the city of New-York, and a tax-payer. He' charged that the common council of the city were improvidently wasting the funds thereof by appropriating them to purposes not warranted by their act of incorporation ; and specifying particularly two instances of such misapplication of the funds.

This was a motion by the defendant to set aside a writ of replevin, and all subsequent proceedings on the part of thé plaintiff, for irregularity. It appeared from the return of the coroner who served the writ, that the bond taken by him upon the execution thereof had but one surety, instead of two, as required by the statute. And the return did not state the addition, residence, or occupation of the surety.

<p>Method of investing moneys in court, on bond and mortgage; and of ascertaining the sufficiency of the security.</p>

In Equity. This was a motion by the complainants to take the answer of one of the defendants off the files of the court; on the ground that it had not been properly sworn to by him. The defendant resided in England; and the answer put in by him had been sworn to before a master extraordinary of the English court of chancery.

The defendant’s default for want of a plea having been entered, the plaintiff’s attorney, upon a general affidavit that the inquiry involved the examination of a long account, moved, ex parte, for a reference to ascertain the amount of damages.

<p>Proceedings to ascertain the damages of the owner of land taken by the United States, under the act of May 5, 1847, (Laws of 1847, p. 189,) need not be instituted by, or in the name of, the governor of this state.</p> <p>It is his duty to apply, as chief magistrate, only when the land of a private citizen is wanted for the use of the state.</p> <p>The statute which directs that when land is wanted for the use of the United States,</p> <p>and it becomes necessary to issue a writ of inquiry of damages, the like proceedings shall be had as upon applications on behalf of the state, is sufficiently complied with, as respects the manner of commencing the proceedings, if they are instituted in behalf of the United States, by officers authorized to act for the executive, in the premises.</p> <p>The inquisition taken under a writ ad quod damnum should find who is the owner of the land taken, the amount of the damages, and to whom the same arc to be paid. It should also provide for the payment of the owner’s costs and expenses.</p>

<p>In Euuity. This was a suit for a divorce, on the ground of adultery. The bill having been taken as confessed by the defendant, the counsel for the plaintiff, on an affidavit showing personal service of the subpoena upon the defendant, moved for a decree of divorce.</p>

Motion to change the venue from New-York to Clinton county. It appeared that the defendants were sued for a bill of goods as partners, and they swore to a number of witnesses residing in Clinton county, their residence, to prove that they were not partners.

The plaintiff having commenced an action of assumpsit against the defendant, the latter gave a cognovit for the amount claimed. The plaintiff subsequently died, without having entered up judgment upon the cognovit; and the defendant refuses to allow judgment to be entered thereon, in favor of the plaintiff’s personal representatives.

The declaration in this case was special; alleging that the defendant had been employed by plaintiff to collect or compromise for him a certain claim, which he had settled, and had received in satisfaction sundry demands and assets, which he refused to give any account of, or to pay over. The defendant obtained an order for the plaintiff to furnish a bill of the particulars of the demands and assets which the declaration alleged he had thus received in settlement.

This was an action against the late sheriff of Kings county for not returning a fi. fa. An inquest was regularly taken at the last circuit in that county, and was set aside by an order of the late supreme court; dated June 8th, 1847, on the defendant’s paying the costs of the inquest, and the subsequent costs; but without costs of the motion, to either party.

T. E. Tomlinson., for the defendant, moved to set aside, or to modify, an injunction granted on a creditor’s bill, which injunction restrained the defendant from proceeding, under the insolvent law, to obtain a discharge. The bill merely stated the fact that the defendant had, prior to filing the bill, made his application under the insolvent law, and prayed that he might be restrained from proceeding on his application; but without stating any special reasons therefor.

P. J. Joachimssen, for a cestui que trust in a trust concerning real estate, moved upon petition, for the appointment of a trustee, in the place of one who had died. The petition set out that the trust was that the trustee should hold the land to the use of the cestui que trust, and to convey the same to such person as he should appoint.

Under the provisions of the act to incorporate the village of Williamsburgh, a jury had been summoned by two magistrates to assess the damages sustained by the opening of a street. The jury found their verdict, reduced it to writing, and signed it, but refused to deliver it to the trustees of the village until they should pay them for their services.

In Eq.uity. Motion to dissolve injunction, and to appoint a receiver. Warner purchased of the defendants’ testator certain lands, for the consideration of $48,093,75 ; $15,000 of which was paid in cash, and two mortgages given for the balance; one for $15,000, which was to he a first mortgage on the premises, and another for $18,093,75, which was subsequently reduced by payments to something between $8000 and $7000.

In Equity. The daughter of the defendants was married to the plaintiff, the Baron de Ferussac, in Paris, on the 26th of August, 1845. Prior to the solemnization of the marriage, an antenuptial contract was entered into, whereby the defendants settled on the plaintiffs 20,000 francs a year, payable quarterly in advance from the day of the marriage.

In this case, P. Reynolds, for the defendant, moved to set aside a judgment entered on bond and warrant of attorney, and an execution issued thereon, oh two grounds; 1st, fraud in obtaining it; and 3d, irregularity in entering it. The allegation of fraud was fully met by the counter affidavits, arid, was abandoned on the argument.

Bill of particulars. The first count of the declaration alleges that the defendant was acting as agent for the plaintiff in the collection of a large claim, and that by the defendant’s negligence &c. he was hindered in the collection of said claim. The second count charges that the defendant was the plaintiff’s attorney to collect certain claims, and that through his negligence the plaintiff was subjected to great damage.

In Equity. Motion to set aside an order taking bill as confessed against the defendant Abraham Voorhis for want of appearance. It was shown that the plaintiffs, after taking the bill pro confesso, had amended their bill by adding defendants; without having taken out any new subpoena. After the default, on the original subpoena, was entered, the defendant Voorhis entered an appearance and asked the plaintiff’s soliciten; to waive the order pro confesso ; which was refused.

In Egouty. Charles Edwards, for the plaintiff, on an affidavit showing that within five days after the time for replying had elapsed, he had served a replication upon the defendant’s solicitor, who refused to receive it—now moved for leave to file a replication.

In Equity. B. W. Rogers, being the owner of certain shares in the Apalachicola Land Company, of certain lands in Livingston county, and of an interest in the Seneca Reservation, in order to borrow money of the Farmers Loan and Trust Company, conveyed to that company the lands in Livingston county, and took back from them a declaration of trust, stating that they held the same as security for the loan, &c. Rogers was also indebted to the plaintiff, and to the defendant…

In EauiTY. Motion for alimony, to enable the complainant to carry on her suit against her husband for a separation. The petition sets forth the filing of the bill of complaint, which prays for a decree of separation, on the ground of abandonment by the husband; the defendant’s appearance, and his ability to provide a support for the plaintiff and the means of enabling her to defray the costs and expenses of the suit; and that she is wholly destitute of property.

In Egluity. This was a motion to dissolve an injunction. Moffat was the owner of certain premises in the city of New-York, which were held by Smith on a lease for two years, ending on the 1st of May, 1847, with a further term of three years; on condition that if at any time during the last three years the landlord should choose to cancel the lease, he might do so by paying the tenant the fair value of his fixtures and improvements.

In Equity. Motion for a receiver in a creditor’s suit. The bill alleges that the defendant is the proprietor of a large hotel in the city of New York, entertaining numerous guests, and receiving money from them, from time to time; and that he has a large amount of furniture and other personal property in his hotel. The defendant demurred to the bill, on the ground that upon the facts stated therein it appeared that the plaintiff had not exhausted his remedy at law.

<p>Where papers are served by mail, in the manner directed by the rules, the risk of miscarriage is with the party to whom they are directed.</p> <p>No costs are allowed on motions, unless such motions are necessary, for the attainment of some substantial right in the cause; except they are awarded by way of punishment.</p>

In Eqouity. This was an application by the defendant, for leave to withdraw a plea, and file an answer. The defendant is administrator of S. Price, deceased, against whom the plaintiff had recovered a judgment previous to his decease. The plaintiff filed his bill in this cause, which charges the defendant with colluding with another judgment creditor of the intestate to give him a priority over the plaintiff’s judgment, contrary to equity.

In Equity. Motion by plaintiff for issues, to try the matters in dispute between the parties, by a jury; and that such issues be settled by the court, or by a referee, upon a reference for that purpose.

<p>In Euuity. On the 29th of April, 1844, Nicholas Tanner, father of the defendant Joseph D. Tanner, executed a mortgage to the plaintiff for $4500. On the 30th of September, 1845, Nicholas Tanner died intestate, leaving Joseph D. Tanner and Henry Tanner, his sole heirs at law, and being seised of the real estate covered by said mortgage. On the 27th of April, 1846, Henry conveyed his interest to Joseph ; the latter assuming the payment of the mortgage. On the 28th of April, 1846, Joseph applied to the plaintiff for a loan of $430, which sum the plaintiff lent him; making, together with the mortgage debt and interest, the sum of $5200; for which Joseph executed a mortgage upon the same premises. On the 29th of April, 1846, the plaintiff cancelled the mortgage given by Nicholas Tanner, without having received payment, except the mortgage given by Joseph. In December, 1846, the creditors of Nicholas Tanner, deceased, requiring payment of their debts, Joseph applied for letters of administration; and such proceedings were had, that on the 5th of January, 1847, letters of administration were granted to Joseph D. Tanner and George Huffart, jun. The debts against the estate were ascertained to be over $1300, while the assets amounted to but $35. The administrators therefore applied to the surrogate of Dutchess, under the statute, for authority to lease, mortgage, or sell the real estate of the intestate. On the 12th of April, an order was made by the surrogate that the administrators should sell the lands in question.</p> <p>Under this order the administrators were proceeding to advertise and sell the real estate, when the plaintiff filed his bill in this cause, and restrained them by injunction. The plaintiff now seeks to have the lands sold, and the proceeds applied in payment of his mortgage debt.</p> <p>The defendant, Shadrach S. Taber, recovered a judgment in the Dutchess common pleas against Joseph D. and Henry Tanner for $105 damages and costs, on the 24th of April, 1846.</p>

<p>In Equity. In October, 1837, Stephen Germond Mott filed a bill in chancery against Walter Cunningham, to obtain the specific performance of a contract to exchange lands, made in April, 1837, and to be performed on or before the first day of May, 1837. Cunningham put in his answer in February, 1838, and in December, 1840, a decree was made by the assistant vice chancellor, directing a reference to a master to ascertain the title of the complainant, <fcc. - On the 20th of May, 1841, the master made his report, which was confirmed in October, 1841. In October, 1842, Mott filed a supplemental bill against Cunningham and wife and Alexander Forbus ; it appearing from Cunningham’s answer that he had conveyed the lands to For-bus. In January, 1843, Forbus filed an answer to the supplemental bill. On the 11th July, 1843, a motion was made by the complainant to refer the cause to the assistant vice chancellor ; which was denied by the chancellor, on the ground that it appeared that Mott had been declared a 'bankrupt, and his assignee was not a party to the suit. Subsequently Ammi T. Butler, the present plaintiff, filed his bill in this cause, setting forth the above facts, and stating that on the 4th of May, 1837, Mott assigned all his estate to him in trust for the payment of his debts. This bill further states that Mott has been discharged under the bankrupt act; and that the plaintiff “ is advised that the proceedings upon the said original bill and the said supplemental bill have been in such form, and your orator’s title has been acquired in such a mode, that your orator can only have relief in the premises by filing this your orator’s original bill in the nature of a supplemental hill, and by means thereof praying for and claiming the benefit of said previous proceedings, and said original and supplemental bill and decree thereon.” The bill requires an answer to all the matters and things “ hereinbefore stated and charged,” and to all the matters and things “ herein mentioned to have been stated and set forth in said original and supplemental bill, and that your orator may have the full benefit of the proceedings had under the said original and supplemental bill, and of the said decree,” &c.; and prays that the defendants may be required to convey, <fcc. and to pay the costs of this suit “ and of the previous proceedings had upon the said original and supplemental bill.”</p> <p>The defendants demurred to the bill.</p>

<p>In Equity. The bill set forth that the defendant being the son of the testatrix, on the first of November, 1824, executed a bond to one Joanna S. Reeve, daughter of the complainant’s testatrix, Nancy Reeve, conditioned for the payment of $1000 in one year from that date. That he paid to her the interest on such bond up to the 1st of November, 1828. That on the 9th of June, 1829, Joanna S. Reeve made her will, and thereby bequeathed the bond specifically to Nancy Reeve, whom she constituted sole executrix of such will, and that Joanna died previous to the 1st of December, 1829. That at the time of her death the principal sum of $1000, with interest from the 1st of November, 1828, was due on the bond. That Nancy Reeve proved the will and took upon herself the administration thereof. That she paid all the debts, and fully administered the estate of the deceased, except collecting the amount due on the bond. That she thereupon became entitled to such bond as her sole property, and held it accordingly. That the defendant paid the interest thereon up to the 1st of November, 1840, and that the principal and the interest from that date were still due. That Nancy Reeve, on the 15th of January, 1832, made her ' will, of which she constituted the complainant sole executor. That she died in the month of November, 1844, and that on the 10th day of January following the plaintiff proved the will, and took upon himself its execution. That he found the bond among, and a part of, the assets of her estate. That the defendant refused to pay the bond. That the plaintiff, in order to enable him to recover the amount due on the bond at law, on the 13th of January, 1847, presented a petition to the surrogate of Orange county, praying that he might be appointed administrator of the estate of the said Joanna S. Reeve, deceased, with her will annexed. That notice of such application was served upon the defendant as next of kin, who thereupon, on the 23d of the same month, also presented a petition to the surrogate to be himself appointed such administrator. That the defendant being entitled to such letters of administration, the surrogate granted them to him. on the 26th of January, 1847. The plaintiff averred that the defendant, at the time, knew that the debts of Joanna S. Reeve had all been paid, and that all her estate, except the bond, had been fully administered ; and that he took out such letters only with a view to prevent the plaintiff from recovering the amount due on the bond, at law. That the plaintiff could not in fact maintain a suit at law against the defendant on such bond, and therefore prayed that the defendant might be decreed to pay him the amount due thereon.</p> <p>The defendant, by his answer, admitted the material facts set forth in the bill, but he alleged his ignorance as to whether Nancy Reeve collected all the debts due to Joanna S. Reeve, or paid all the debts owing by her; and he stated that he had been informed and believed that her estate was not fully administered. He denied that the bond was the property of Nancy Reeve, but he admitted that he paid her interest. He alleged, however, that it was in her character of executrix. He denied the plaintiff’s right to collect the moneys due on the bond as executrix of Nancy Reeve, and said that he refused to pay it to her, as he thought it unsafe for him to do so. He admitted that he took out letters of administration upon the estate of Joanna S. Reeve, but denied that it was for the purpose of obstructing the plaintiff in the recovery of the money due on the bond at law. And he insisted that the plaintiff had a full remedy at law, and therefore denied his right to a decree for the amount due, in a court of equity.</p>

In Ecujity. Jacob Lewis, of Munroe in the county of Orange, by his will dated on the 23d day of July, 1820, amongst other things, devised and bequeathed as follows: “ I give and bequeath to my wife Eunice Lewis all my real and personal estate, except such of my personal estate as is hereinafter otherwise bequeathed, whether it consist of lands and tenements, goods and chattels, or moneys due to me on bonds, notes or otherwise, for her own use and benefit so long as she…

This was an action of ejectment, tried at the Columbia circuit, in September, 1846, before Whiting, circuit judge ; who directed a verdict for the plaintiff subject to the opinion of the supreme court, on a case containing the following facts: The plaintiff is a daughter of Nathaniel Olmsted, who died in 1821, leaving a last will and testament, upon the construction of which the question in this case arises: and also leaving his widow, and four children, viz. Nathaniel,…

In Egluity. This case came before this court on an appeal by the defendant Perry, from a decree of the late vice chancellor of the seventh circuit.

The plaintiff in error was convicted, at the oyer and terminer in New-York, of grand larceny, and brought a writ of error to this court on a bill of exceptions taken at the trial, during the third week of the term.

On error from the superior court of the city of New-York. The facts are stated in the opinion of the court. On the decision o.f the cause in the superior court, the following opinion was delivered by Chief Justice Jones, upon the demurrer of the defendant Livingston.

<p>The declarations of a defendant in a slander suit, made during an attempt to arbitrate, that he had satisfied the plaintiff by writing to his brother, and exculpating the plaintiff, are not admissible in evidence in favor of the defendant; although such declarations tend to prove one branch of the defence, viz. accord and satisfaction.</p> <p>Where, on the trial of a cause, improper evidence was received, yet if it appears to the court that such evidence could not have materially influenced the jury in arriving at their verdict, a new trial will not be granted for that cause.</p> <p>So in respect to an erroneous charge of the judge.</p> <p>Words imputing the commission of a crime are privileged, if addressed to police officers while engaged in the investigation of such crime, it seems.</p>

Error from the superior court of the city of New-York. The action in the court below was by Spies against Gilmore and J. Jewett and G. W. Jewett.

This was an action of assumpsit, tried at the New-York circuit, before Edmonds, circuit judge. The declaration contained only the common money counts; to which the defendants pleaded the general issue. Upon the trial of the cause, the circuit judge directed a nonsuit to be entered; and a motion was now made to set the same aside.

The plaintiffs having recovered a judgment in ejectment against the actual occupants of the premises in question, brought this suit for mesne profits, against the defendants, as the parties of whom the occupant held. The facts are set forth, with particularity, in the opinion of the court.

Covenant on a charter-party. At the trial, before Kent, C. Judge, at the New-York circuit in October, 1844, the defendants Drew, Dunlop, Stevens and J. C. Heartt, severally pleaded in bar, puis darrein continuance, a general release from the plaintiff to J. C. Heartt and the legal representatives of K» P. Heartt deceased, two of the covenantors.

<p>The act of congress entitled “ An act to provide for the apprehension and delivery of deserters from certain foreign vessels in the ports of the United States,” passed March 2d, 1829, confers no power upon any but courts and officers of the United States. And no court, judge, justice, or other magistrate of this state, can lawfully assume to execute its requirements.</p> <p>The proceedings, upon an application under that act, against an alleged deserter from a foreign vessel, must show that the person proceeded against deserted from the vessel while in a port of the United States.</p> <p>Unless that fact appears, the officer to whom application is made will not obtain jurisdiction to act upon the complaint.</p> <p>It is in the discretion of the court either to allow a writ of certiorari in the first instance, or to grant an order to show cause.</p> <p>The supreme court has power to review, upon certiorari, the proceedings of a magistrate of this state who, while professing to exercise a jurisdiction conferred by act of congress, acts in the name of the people of this state, by writs of the people, directed to state officers.</p>

<p>In EauiTv. The bill in this cause was a creditor’s bill, filed against R. Sedgwick, jun., the judgment debtor, and R. Sedgwick his assignee. The judgment debtor is a son of the defendant R. Sedgwick; and after his failure he executed an assignment of all his property to his father, in which he gave the latter a preference for a large amount, in the payment of the debts owing by him. The bill charges that the assignment was fraudulent; that the assignee is insolvent, and that there has been no change of possession as to the property assigned. And it prays for an injunction and receiver, and that the assignment may be set aside.</p>

This was an action on the case for obstructing a private right of way, by erecting a gate at the end of a lane running along by the side of, and adjoining, the plaintiff’s land. The cause had been tried previously before two juries, and on each occasion a verdict was rendered for the defendant. These verdicts were set aside by the supreme court, and the cause sent back for a third trial. In each instance, the court decided that the plaintiff made out a clear right of way.

In Euuity. The above named banks commenced their suits at law to recover of Mallett, as maker, the amount of two promissory notes, endorsed by one Fenner, on whose estate Dexter bad taken out letters of administration. Mallett filed his bills in these suits against the banks and Dexter, alleging that he had an offset of a claim against Fenner; that the notes did not belong to the bank, but in fact to Fenner’s estate; and that they were prosecuting them as his trustee.

This was a motion by the defendants for leave to issue a new commission to re-examine one of the same witnesses who was examined under a former commission. One of the witnesses had died since the former commission was returned. The party moving asked a new commission upon the ground that from recent occurrences, the surviving witness would now be able to testify more definitely than before.

In Equity. This was an application on the part of the plaintiff, for an order of reference to settle the form of the issues, under the 59th rule, for the taking of testimony.

In Euuity. Application by the plaintiff to take a demurrer, filed by the defendants, off the files, with costs. The defendant, within forty days after the service of the bill, obtained an order extending the time to answer, plead or demur. This order being irregular, for having been obtained without affidavit, as required by rule 85, was on application to the court, vacated.

In Equity. Motion to dissolve an injunction. The plaintiffs, merchants in New-York, had accepted for the accommodation of Howard <fc Lathrop, drafts to the amount of about $2000; some of which had been taken up by the plaintiffs, and others were about falling due.

In EauiTY. After an attachment, an alias and pluries attachment, and an attachment with proclamations, the defendant Andrews was arrested and' brought into court on a commission of rebellion, for a contempt in refusing to appear and submit to an examination before a master on a breditor’s bill. On being brought into court and asking time to answer the interrogatories, he was committed to prison, in default of bail in $3000.

In EauiTY. Motion to suppress depositions taken before an examiner, under the 85th rule of the late court of chancery; on the ground of irrelevancy and immateriality.

Motion to change the venue from New-York to Monroe; on the ground, among others, that neither of the parties to this suit are residents of the city of New-York, but that one of them resides in Seneca county and the other in Monroe, and that the suit was commenced after the first Monday of July, 1847.

In Eq-uity. In this case a bill was filed in the late court of chancery for the purpose of foreclosing upon two mortgages ; one executed by Alexander Webb to the plaintiffs on the 1st of April, 1840, to secure the sum of $1650, with interest at 7 percent ; and the other executed by Webb to Stephen Smith, of New Canaan, Fairfield county, Connecticut, on the 31st of October, 1838, to secure the payment of $2500, “ with lawful interest of the state of Connecticut.” The latter…

This was a motion in behalf of the defendant to set aside a report of referees, on the ground that interest had been improperly allowed on the plaintiffs’ account. The plaintiffs were merchants, doing business under the name of M. Esterly & Co., at the town of Plattekill, in the county of Ulster; and the storehouse occupied by them belonged to the defendant, who had been a regular customer, at the store of the plaintiffs, from January 1, 1837, till the 1st of May, 1840.

In Eq.tjity. The facts in this case were as follows: Chapman Fulkerson, one of the defendants, being seised of several pieces of land in Tompkins county, mortgaged one of them to one Lamont in 1834, and another piece, of 63 acres, to Burr in 1829. Burr obtained judgment on his bond accompanying his mortgage, on the 21st of January, 1843 ; and soon afterwards he assigned his judgment and the mortgage to the defendant Toogood.

<p>In Equity. The plaintiff filed his bill in the late court of chancery, before the vice chancellor of the eighth circuit, to set aside two mortgages, as void on the ground of usury, and because given in violation of our restraining law. And he obtained an injunction, ex parte, to stay a statute foreclosure of them. It appeared that the premises were worth $110,000, and the amount due on the mortgages, for principal and interest, was $103,000; that the plaintiff was in possession or enjoying the rents and profits of the mortgaged premises, and that he had omitted for several years to pay any interest on the mortgages.</p> <p>On this state of things the vice chancellor, on a motion to dissolve the injunction, ordered that it should be dissolved unless the plaintiff, within thirty days, gave the usual injunction bond, in the penalty of $40,000, with sufficient sureties. This was in June, 1847, shortly before the new constitution went into effect. The plaintiff did not give the bond required, but after the first Monday of July, discontinued that suit and filed a new bill in this court, seeking the same relief, and containing substantially the same averments. On an ex parte application to one of the judges of this court, he obtained the allowance of an injunction in this court, on filing his own bond in the penalty of $500; without disclosing to the judge the prior proceedings.</p>

This was a special action on the case for deceit. The defendant was held to bail on a judge’s order, and a motion was now made by him to vacate the order.

The prisoner was a notary public in one of the departments of France, which country he left and came to this state. After he had left his residence, it was charged against him that he was a defaulter to his clients to a large amount, for moneys of theirs which he had embezzled, which embezzlement he had attempted to conceal by means of forgeries. Complaint to that effect was made against him, before a French committing magistrate, who issued a warrant for his arrest.

In EauiTY. The plaintiffs filed their bill to foreclose a mortgage executed by the defendant Edwards, on a lot known as No. 23 Nassau-street; and upon a sale on that foreclosure there was a surplus of $3439,15.

In Equity. The plaintiff was the owner of two lots of ground in the city of New-York, which he agreed to sell to the defendant Farley for $2400 each. Farley entered into'the negotiation for the purpose of building on the lots, but was unable to make any payment toward the consideration of the lots.

<p>On an application to confirm the report of commissioners of estimate and assessment, affidavits made by persons who are only interested in the question, and not in the result of the proceedings before the court, may be read, in opposition to the motion.</p> <p>When private property is to be taken for the public use, it is important that all the forms of the law should be complied with; for those forms have been devised, and certain restrictions adopted, for the protection of private right against public oppression.</p> <p>In all cases of public improvements, where private property is to be taken without the owner’s consent, at the demand of a local corporation, it is essential to inquire whether all the requisitions of the statute have been complied with. And courts cannot allow any essential departure from them, without jeoparding private rights, which have no adequate protection except in our courts.</p> <p>The acts of the legislature relative to the city of Brooklyn, and the.opening of streets and avenues therein, give no authority to proceed against unknown owners of lands; and if any of the owners of land required for a street are unknown, a lawful assessment cannot be made.</p> <p>It is an inflexible rule of law, that no man ahall be deprived of his property without an opportunity of defending himself. Upon this principle, a report of commissioners of estimate and assessment will not be confirmed if it contains an assessment upon property in Brooklyn belonging to unknown owners.</p> <p>What degree of particularity is necessary, in describing the owners of property assessed for the opening of an avenue in the city of Brooklyn.</p> <p>The commissioners are required by the statute, to specify in then report the respective interests of the owners, the amount awarded to the several parties interested, the amount assessed upon the different interests in the premises affected, and to designate the interests of the parties, and their liabilities in relation thereto. And if their report does not contain these particulars, it will not be confirmed.</p> <p>Courts must obtain jurisdiction as well of the person to he affected by their judgment, as of the subject matter.</p> <p>It sometimes becomes necessary, especially in proceedings m rem, to proceed against persons who are unknown; but courts have no power to do so, unless the legislature has interposed, and by some sort of substituted service, given to the court jurisdiction over the person.</p> <p>It is the duty of commissioners of estimate and assessment in the city of Brooklyn, to estimate the expenses of opening a steeet or avenue. This includes not merely the costs and expenses of making the assessment, but also the costs and charges of making the improvement, and the amounts to be paid for the lands and buildings required to be taken for it. And the several items of the expense should be stated in the report.</p> <p>The commissioners are also required to estimate the benefit to be derived from the improvement, not only in the aggregate, but that to be derived by the parties respectively.</p> <p>Where it appeared from the report of commissioners respecting the opening of an avenue, that such avenue crossed a public turnpike at two distant points, and thus opened a road whereby travellers could avoid the toll gate of the company, thereby materially injuring, if not destroying, the value ofthe franchise; for which injury the commissioners had not awarded any damages, but they had awarded the company two small sums for the damage arising from taking the road for the avenue, and had assessed them an equal amount for the expense of opening the avenue ; the court refused to confirm the report.</p> <p>The franchise which a turnpike company obtains from the legislature, by its act of incorporation, is as much the subject of value to the company as the private property of any individual. And they have as clear a right as any person owning land to be indemnified for an injury sustained by them in consequence of the appropriation of their property to the public use.</p> <p>The doctrine that because a turnpike company derived its franchise from the same source from which the city of Brooklyn obtained its power to open an avenue, therefore the company are not entitled to any compensation for an injury to their property, is untenable.</p>

<p>The act to abolish imprisonment for debt, and to punish fraudulent debtors, has a double aspect;—as a civil remedy, and as a criminal proceeding.</p> <p>The proceedings under the act are never fo.r the benefit of the creditors at large; except in the single instance of an assignment after the debtor has been convicted of a misdemeanor.</p> <p>Previous to the execution of the assignment, the proceedings are for the benefit of the prosecuting creditor alone.</p> <p>The prosecuting creditor is entitled to a preference over the creditors generally, either for himself alone, or for himself and others of a certain class.</p> <p>It is not necessary that the refusal of the debtor to apply his assets to the payment of the judgment of the prosecuting creditor should be fraudulent, to authorize a warrant of arrest. It is enough that such refusal is illegal, in violation of law, and in contravention of rights acquired by the creditor under the statute. It then becomes unjust, because it is illegal.</p> <p>And when it is established, by the judgment of a competent tribunal, that the prosecuting creditor has a valid claim against the defendant, and when it is also established as a matter of fact that the debtor has evidences of debt to which, as a matter of law, the creditor has a claim prior, and more potent, than the debtor himself, or any other creditor, it is illegal and unjust for him to attempt to deprive the prosecuting creditor of that right; especially with the object of wresting from him the preference which the law gives him, and conferring it upon others to whom the law does not give it.</p>

On the 25th of August, 1847, a judgment was entered up against the defendant, on a bond and warrant of attorney, in the sum of $1000.

In Eq/uity. The bill of complaint alleged that the defendant had agreed with the complainant to perform and sing in concerts, operas, <fcc. throughout the United States and Canada, and that he would not make engagements with any other person. That he was about to make other engagements, and was about to leave the state.

In Equity. Application by the complainant for an injunction, and for an order to show cause why an attachment should not be issued for a violation of an order to show cause against an injunction. The bill was founded upon an agreement between the parties respecting certain manufacturing works, which agreement the defendants insisted was a mere contract of hiring, and that it did not give to the plaintiff the right to the possession of the property.

In Equity. This case comes before the court upon exceptions taken by the defendant to a master’s report, in relation to certain amendments proposed by him to a feigned issue; and upon a motion by him to amend the order of reference. The plaintiff filed his bill against the defendant, for a divorce, on the ground of adultery. In her answer, the defendant wholly denied the allegations in the bill, and set up, as a defence, the adultery of the complainant.

An agreement was entered into on the 11th of May, 1835, between Butler, the defendant in error, and the mayor, aldermen and commonalty of the city of New-York, for the erection and completion by the former, of a certain public building called the Halls of Justice, upon the plan, and for the sum of money, therein specified.

<p>Upon a writ of habeas corpus the court cannot look beyond the colorable authority Of the judge who issued the warrant on which the defendant was imprisoned. It cannot inquire into the technicalities, nor the strict regularity, of the proceedings before that officer.</p> <p>The writ of habeas corpus is not intended to review the regularity of the proceedings, in any case, but rather to restore to his liberty the citizen, who is imprisoned without color of law.</p> <p>Upon a writ of habeas corpus the court will merely look into the sheriff’s return containing the warrant by virtue of which he detains the relator, and into the affidavits upon which the warrant was issued, so far as to see that the officer issuing the warrant had colorable jurisdiction.</p> <p>And if the cqurt finds that the officer had jurisdiction of the process, and assumed to take proof upon the issuing of the same, which proof he adjudged to be sufficient, it will not review his adjudication upon that question; nor undertake to say whether he erred in adjudging the proof to be sufficient.</p> <p>If the court finds that the warrant under which the relator is imprisoned is prima facie sufficient to justify the imprisonment, and if, on looking beyond the warrant, and examining the affidavit upon which the same was issued, it is satisfied that there was at least colorable proof before the officer issuing the Warrafat, on which he might exercise his judgment in awarding the process, that is as far as the court will go, upon a writ of habeas corpus. And where these facts appear, it will not discharge the person imprisoned.</p> <p>The general provisions of the habeas corpus act show that it was not intended as a writ of review, to correct the errors of inferior tribunals.</p> <p>It seems that nothing is properly before the court, upon the return of a habeas car-pas, except the warrant, on which the relator is imprisoned. If that is regular on its face, and if the sheriff would be protected in an action of trespass, it is sufficient ; and the relator cannot be discharged. Per Hürlbut, J.</p>

<p>Error from the superior court of the city of New-York. In April, 1838, James Bottomley was arrested on a; warrant issued by S. Rapelje, an officer of the United States government, (a commissioner,) for smuggling and peijury. The prisoner was taken before that officer, and entered into recognizances to appear at the chambers of Judge Betts on the 24th of April. On the return day of the recognizances, Bottomley did not appear ; and his recognizances were subsequently estreated, by the circuit court, and an entry made on the minutes of the court, ordering execution to issue. Corlies, the plaintiff, was the surety in the recognizances. He told Rapelje, the marshal, that there was no necessity for issuing execution, but that he would pay the money whenever it was called for. Accordingly, no execution was issued. Rapelje afterwards called on Corlies for the money, who delivered to him $4000, to be paid to Waddell, then United States marshal, to be applied to the discharge of the recognizances. Subsequently, however, and while the money was in Waddell’s hands, Corlies changed his mind, and gave him notice not to pay the money over, and thereupon brought his action, in the superior court, to recover the amount, as money had and received. In that court a verdict was rendered for the defendant; the court holding that the defendant: had the power to receive the money either as the marshal of the United States, or as being considered a disbursing officer of the United States; and that his receipt was a satisfaction of the recognizances.</p>

<p>Where an injunction has been allowed by an officer competent to act in either of two characters, and where it does not appear clearly in which character he did , act, it will be presumed he acted in the higher office of judge of the court, instead of that of injunction master.</p> <p>A court of equity has jurisdiction to restrain a party, by injunction, from proceeding against the person, and the equitable interests, of his debtor, under the third and subsequent sections of the act to abolish imprisonment for debt and to punish fraudulent debtors, in cases proper for the interference of such court.</p> <p>That statute, as regards its provisions for compulsory process against debtors by contract, is a mere civil remedy.</p> <p>Where a court of equity has acquired jurisdiction of a suit for one purpose, it may retain it for all purposes, which are necessary, in order to afford complete relief.</p> <p>A decree cannot be impeached, after enrolment, except by a bill of review, or a bill in the nature of a bill of review, charging fraud.</p> <p>Where the assignee of a decree in a foreclosure suit is unconscientiously enforcing the same, against the mortgagor, for the deficiency, in violation of an agreement made by the assignor not to do so, a court of equity has power to interfere, for the protection of the mortgagor. And the mortgagor is not bound to wait until the deficiency is wrung from him, by execution^upon the decree, or by proceedings under the Stilwell act, before he can ask for that protection..</p>

<p>What articles of property are to be considered fixtures.</p> <p>A pump and pipe, balances and scales, and a beer pump are prima facie personal property, and can only descend to the heir in consequence of being annexed to the freehold in such a manner, and under such circumstances, as to come within the seventh section of the article of the revised statutes relative to the duties of executors, &c. in taking and returning inventories.</p> <p>As a general rule, it seems, that previous to the passage of the act to abolish distress for rent, where a tenant died leaving rent in arrear, the landlord could distrain for rent, after administration granted. But if the landlord was also the administrator of the deceased tenant, he could not distrain. For a landlord, by accepting the office of administrator of his tenant, waives his right to distrain.</p> <p>A surrogate, upon an accounting by administrators before him, oh the application of creditors, is authorized to give a preference to a charge made by the administrators for rent paid on a lease of premises held by the intestate, if it appears to his satisfaction that such preference will benefit the estate. And where a surrogate gives a preference of that nature, and certifies, in his decree, that it appeared to his satisfaction that it would benefit the estate, his decree is conclusive upon that point. And the appellate court will not inquire whether there was any proof of that fact before the surrogate.</p>

The return states, among other things, the following facts. That on the 27th day of September, 1845, the defendant, as sheriff of Orleans county, sold the premises in question, by virtue of an execution against John Henderson, the former owner, in favor of Clark S. Potter, issued on a judgment recovered January 4, 1844, in a justice’s court, and docketed in the clerk’s office pursuant to law; that Archibald McAlister and John L. Moulthrop, formerly partners in the mercantile…

It appeared by the affidavits submitted to the court, that in the month of May, 1846, the plaintiff in the above suit recovered a judgment in the superior court of the city of New-York for $206,87. That shortly afterwards, he brought a suit on that judgment in the court of common pleas for the city of New-York, and recovered a second judgment. That he then brought another suit on the same judgment, in the same court, and recovered a third judgment.

In Equity. On the 3d of May, 1841, the defendants Moses Camack and wife executed a mortgage to the plaintiff, to secure $300, upon a lot of land in Newburgh, thirty feet front and rear, and ninety feet deep. On the 6th of September, 1841, the same parties executed a mortgage to the defendant Brown for $1000, upon a portion of the same premises, and upon other lands.

<p>An infant feme covert cannot bind herself by deed, so as to bar her right of dower.</p> <p>Where, in a suit for the recovery of dower, a former owner of the land, who has conveyed the same, by warranty deed, to the person from whom the defendant derives his title, is introduced as a witness for the defendant, a release executed by the defendant to the witness is good and valid, and removes the objection to his competency on the ground that he will be liable over to his grantee, or to the defendant, in case of a recovery by the plaintiff in the suit for dower.</p> <p>It is sufficient if, at the time of testifying, the witness is disinterested. It is not a question whether he may, by possibility, or in the course of events, become interested.</p> <p>A covenant of .warranty runs with the land, so long as it remains unbroken. When it is broken by an eviction of the purchaser, or his assignee, a right of action accrues to him to recover the consideration money, and interest. It then takes the character of a chose in action, and can be released by the covenantee, or his assignee.</p> <p>Where, upon the purchase of land, a deed is executed by the vendor, and a mortgage upon the land purchased is executed by the purchaser, and both conveyances are acknowledged and recorded at the same time, the presumption is that they were executed simultaneously, and that the mortgage was intended to secure the purchase money, although given to a third person, instead of the vendor, by the direction of the latter.</p> <p>Where the husband has only an instantaneous seisin of land—as where he takes a conveyance thereof and gives back a mortgage for the purchase money—the wife is not entitled to dower therein.</p> <p>The section of the revised statutes declaring that, where lands are mortgaged by the husband previous to his marriage, his widow shall nevertheless be entitled to dower out of the lands mortgaged, as against every person except the mortgagee and those claiming under him, is not applicable to the case of a mortgage for the purchase money.</p> <p>Where land is sold, and a mortgage for the purchase money is given by the purchaser to a third person, by the direction of the vendor, the latter is to be regarded in equity as the real mortgagee.</p> <p>Distinction between an exception, and a reservation, in a deed.</p>

In Egujity, Dedrick Shafer, of the county of Orange, grandfather of the plaintiffs and defendants, died in 1807, leaving his last will and testament, by which he devised to each of his three sons, Bedrick, Daniel and Frederick, a farm, generally, without words of limitation, or inheritance, and gave to his daughter Elizabeth £720, to be put out by the executors, and the interest paid to her annually.

In Equity. This was a motion for an attachment against the defendant, for the violation of an injunction. The defendent is a measurer connected with the custom house in the city of New-York, and as such is entitled to a salary of $125 per month, payable on the last day of each month.

This was a suit in partition. On the 14th of April, 1847, the usual order of reference was made, to ascertain and report the specific and general liens upon the undivided shares of the several parties. The time for creditors to come in and prove their liens before the master expired on the first of June.

In E&uity. The plaintiff moved to take from the files of the court, the plea of the defendant Brooks, on the ground that it was not duly verified by the defendant’s oath.

<p>It is a general rule that if a creditor has an adequate remedy at law, so that he can hold his debtor to bail, by suit at law, he is not entitled to a writ of ne exeat from a court of equity.</p> <p>The application for a ne exeat is addressed to the discretion of the court; and if there is any exception to the rule that the writ will not be issued when the plaintiff has a right of action at law, such exception must be founded upon some difficulty in proceeding at law.</p> <p>Even where a court of equity has the power to grant the writ of roe exeat, it will be very cautious in the exercise of such power.</p> <p>The fact that there has been a previous holding to bail at law, from which the defendant has been discharged, is a fatal objection to an application for the writ.</p>

This is a motion to set aside the defendant’s default for not pleading to an amended declaration. The suit was commenced by declaration. One of the defendants pleaded in abatement the non-joinder of Joyce as a defendant. The plaintiff, within the time allowed by the 22d rule, amended his declaration by making Joyce a defendant, and served on the defendants’ attorney a copy of the amended declaration, with the usual notice to plead; which the defendants’ attorney disregarded.

This was a motion on the partof the defendant in error, to amend the copy of the record sent to this court by the New-York common pleas, with the writ of error issued in this ease; so as to make such copy correspond with the record as amended by the court below.

In EauiTY. The bill in this cause was filed by the wife against her husband, for a separation, on the ground of cruel and inhuman treatment. The plaintiff applied for alimony and for an allowance to enable her to carry on this suit..

<p>Loaning uncurrent money, upon an agreement that the amount loaned shall bo repaid in current funds, does not amount to usury where the discount upon the money loaned is very trifling, and the same yill pass current in the market, in the way of trade.</p> <p>Such a loan is not a violation of the statute, unless there is something in the transaction from which it is to be inferred, as a matter of fact, that it was a mere contrivance to obtain more than the legal rate of interest by loaning bills which were not intrinsically worth their nominal amount; and where it does not appear that the money loaned was not worth, to both parties, the amount at which it was received by the borrower.</p> <p>It seems that the plaintiff in a junior judgment cannot set up the defence of usury against the claim of a plaintiff in a prior judgment to the surplus moneys arising from the sale of premises upon which both judgments are liens; without consenting to the allowance of the amount actually due upon the prior lien.</p>

<p>The reason of the greater strictness which prevails in the English court of chancery in relation to the form of the inquisition upon a commission in the nature of a writ de hmaiico inqtdrendo, has no Connection, it seems, with the question of jurisdiction. But it is to be found in the fact that by the English statutes, the party who, by an inquisition, has been found to be a lunatic, or person of dnsound mind, has a right to traverse the finding of the jury.</p> <p>Here, the right to traverso the inquisition does not exist; and therefore there is not the same reason for insisting upon a particular form in the finding bf the jury.</p> <p>By the statute of this state, the care and custody of the persons and estates 'df lunatics, idiots, &c., is confided to the court of chancery, without any restriction or limitation. The manner in which the control thus given is to be exercised, is entirely a matter of discretion. The form of the return to the inquisition is only important so far as it is necessary to satisfy the conscience of the court.</p> <p>If enough appears upon the inquisition to enable the court to adjudge the party to be within some one of the classes of persons over whom the statute has given it jurisdiction, it is suificient. It is enough to give the court jurisdiction if the jury find that the party is mentally incapable of governing himself, or managing his affairs.</p> <p>Yet it seems it is better to adhere to the technical form of finding in the language of the statute itself.</p>

In Equity. The bill in this cause was filed to close up the business of a copartnership. On the 24th of September, 1847, an order was made appointing Philo T. Buggies, Esquire, a receiver of the partnership effects, and also a referee to take and state the partnership accounts, and requiring the parties at his request and under his direction, to deliver over, among other things, all books relating to the partnership.

In Equity. Upon filing the bill in this cause, the plaintiff, with two sureties, executed a bond to the defendant, in the penalty of $800, conditioned to pay such damages as he might sustain by reason of the injunction to be issued in this causo, if the court should eventually decide that the plaintiff was not equitably entitled to such injunction; such damages to be ascertained by a reference to a master, or otherwise, as the chancellor or vice chancellor having…

<p>The general rule, on the subject of jurisdiction, is that it depends upon the state of things at the time the action is brought; and if the circumstances be such, then, as to vest jurisdiction in the court, the same cannot be ousted by any subsequent event.</p> <p>If there is any exception to this rule, it is when such a change in the parties takes place after the commencement of the suit, as to work an abatement.</p> <p>The appointment of a person as consul of a foreign power, does not work an abatement of a suit previously commenced against him in a stale court.</p> <p>The privilege conferred upon the consuls of foreign governments, by the constitution and laws of the United States, of being sued in the federal courts only, does not eigtend so far as to enable a party, after a suit has been commenced against him in a state court of competent jurisdiction, to divest that court of jurisdiction by voluntarily accepting the office of consul of a foreign power.</p> <p>Jurisdiction of the state courts in suits to which foreign consuls are parties, is excluder! only in suits against them. They are at liberty to bring suits against other persons, in the state courts, if they choose to do so.</p> <p>A party who brings a writ of error to the supreme court, to reverse the judgment of a court below, occupies the position of one voluntarily bringing his suit in the higher court, for redress. And by calling upon the supreme court for its decision upon the merits of the cause, he admits its jurisdiction to make such decision; and he is concluded by that admission.</p> <p>Where, subsequent to the commencement of a suit against a party, in a state court, he accepted the appointment of consul of a foreign power, by virtue of which he became exempted from liability to be prosecuted in the state courts, but he proceeded to trial in the suit, upon the merits, without suggesting his privilege to the court, and afterwards brought a writ of error to the supreme court, to reverse the judgment of the court below; Held, that he was estopped frpm setting up his privilege, in bar of the jurisdiction of the state courts.</p>

In Equity. On the 6th of September, 1843, the defendant Phillips, being indebted to the plaintiff in the sum of $3500; gave to him five drafts upon J. Cohen, jun., of Charleston, S. C. for the amount of the indebtedness, and also gave him security for the debt upon the schooner Eliza Jane, of which he was owner and master, by an instrument alleged by the plaintiff to have been intended as a mortgage, and by the defendants New-bold & Cruft to have been a bottomry bond.

In Equity. Exceptions to the answer of the defendant for insufficiency. The bill is a creditor’s bill in the usual form. The grounds of the exceptions will appear in the opinion of the court.

<p>Upon the dissolution of a copartnership between S. &P. an agreement was entered into by them, by which it was stipulated that the business of the firm should be settled by S., and that all the personal property, books and effects of the firm should be delivered over to him, and that he should provide for, and pay, all the debts and liabilities, and charge tile same to the firm. By the fifth clause of the agreement, it was provided that when all the debts and liabilities of the firm should be paid and discharged, then the accounts of the partners should be made equal by S. selecting and taking to his own account, from the assets or effects of the firm, an amount sufficient to equalize the accounts of the partners, with interest, (P. being indebted to the firm;) and that the balance of the assets and property of the firm should belong to, and be immediately divided equally between the parties. At the time the agreement was executed, the effects of the partnership exceeded, by more than $26,000, its debts and liabilities. And the parties did not contemplate a deficiency of assets to pay the debts and equalize the partnership accounts. All the debts having been paid, debts to the amount of about $26,000 still remained due to the firm, most of which were uncollectible. A balance of $1568,28 being still due from the firm to S., he filed his bill against P., praying for an account and a settlement of the copartnership affairs, and that P. might be decreed to pay the balance which should be found due from him. Held that there was nothing in the language of the agreement which furnished any evidence that S. intended to release P. from his liability to contribute his share towards the losses of the partnership ; or that P. was stipulating for an indemnity against his liability to pay . any balance which might be justly due from him to his copartner, after a full administration of the partnership effects. Nor that either party intended, or expected S. would take to his own account, in payment of any portion of the amount due him from the partnership, doubtful or uncollectible debts, at their nominal value.</p> <p>Held, also, that the deficiency of the partnership effects to pay the debts and liabilities of the firm, and then to pay S. the amount which should be due to him from the firm, was assumed as the basis of the agreement. That those effects having turned out to be insufficient for those purposes, it was a case of mutual mistake or misapprehension as to the value of those effects. And that it would be doing violence to the intention of the parties to make the agreement applicable to the existing state of things.</p> <p>Where a written contract is capable of a sensible construction, and there has been no fraud or imposition in obtaining it, such construction must be determined by the language found in the instrument itself, and cannot be affected, by parol evidence of what was said by the parties at, or before, the time of execution.</p>

In Eojuty. This was a bill filed by the purchaser, to rescind a contract for the sale and purchase of a farm. The vendor also filed a cross-bill for the foreclosure of a mortgage, executed by the purchaser, for a portion of the purchase money. The facts upon which the sale was sought to be set aside, are stated in the opinion of the court.

The relator was arrested upon a capias issued out of the superior court of the city of New York, in an action of trover, at the suit of Brian O’Hara. The writ was returnable on the first Monday of July, 1847; The defendant in the writ appeared by putting in and perfecting special bail. At the August term of the court the plaintiff in the writ, upon notice to the defendant, applied for and obtained a rule enlarging the time to declare, to the first of December.

In Equity. The bill in this cause stated that on the 14th of July, 1834, a copartnership was entered into between the plaintiff and the defendants and one Donald C. Stevenson, since deceased, which was dissolved in July, 1835.

In Equity. This was a motion to dissolve an injunction staying proceedings in an action at law, granted upon filing a bill of discovery. The defendant had commenced against the plaintiff two suits in the New-York superior court; one in trover, the other in assumpsit. The declaration in the former action showed that the plaintiff’s claim in that suit was for the conversion of three pagaris, or promissory notes, made in the island of Porto Rico, amounting to about $7000.

<p>Where a draft was drawn by a consignor of cotton, upon the consignee thereof, on account of such consignment, and was discounted by a bank, upon the faith of representations made by the payee and the drawer that such draft was drawn against the consignment, and would be paid out of the proceeds thereof; which draft was accepted by the drawee, but before the cotton was received by him, he executed a general assignment of his property, for the benefit of his creditors, and his assignee claimed the cotton as a part of the assigned estate; Held that the proceeds of the cotton, in the hands of such assignee, was a trust fund, applicable to the payment of the draft drawn against such proceeds.</p> <p>An assignee claiming under a general assignment made by a failing debtor, for the benefit of creditors, is only entitled to the same rights and equities which the debtor would have possessed.</p> <p>Where a principal debtor provides, in the hands of his surety, or of one standing in the situation of a surety, a fund to pay his debt, the creditor is entitled to have such fund applied in payment of that debt. And this even where the creditor had no knowledge of the existence of the fund, when he became such creditor.</p> <p>Where a foreign corporation appears in court, it must establish its right to bring the suit, and to make the .contract it seeks to enforce. But it is sufficient if this is shown upon the hearing of the cause. It is not necessary to set forth, in the pleadings, the authority upon which it relies to sustain its right to sue or enforce the contract.</p>

In Equity. Exceptions to the defendant’s- answer, for insufficiency.

<p>Where a party makes a contract for the sale of land, and dies before the performance of the contract, leaving an only child as his heir at law, who is a lunatic, a court of equity has power to decree a specific performance of the contract, and to direct the committee of the lunatic to execute all necessary conveyances, for the purpose.</p> <p>Costs of a suit, to compel the specific performance of a contract, cannot be allowed to the plaintiff, where no application has been made by him to the defendant, previous to the filing of the bill, to carry the contract into effect, and there has been no refusal or neglect on the part of the latter, to execute the contract; and where the defendant has not been guilty of any improper conduct, and has not improperly resisted the plaintiff’s claim to a specific performance.</p> <p>Where a bill for a specific performance of a contract, is filed against the heir of the party who made the contract, and such heir is a lunatic, neither the lunatic, nor his estate, can be charged with the costs of the suit.</p> <p>Where a contract is made for the sale of land, the vendor is, in equity, immediately deemed a trustee for the vendee, of the real estate, and the vendee a trustee for the vendor, of the purchase money. The vendee is treated as owner of the land, and it is devisable and descendible as his real estate. The money is treated as the personal estate of the vendor, and is subject to the like modes of disposition by him, as other personalty, and is distributable in the same manner, on his death.</p> <p>The trust in the vendor, for the vendee in such a case, attaches to the land, and binds the heirs of the former.</p> <p>And if the vendor dies, before the execution of the contract, by the conveyance of the land and the payment of the purchase money, the purchase money must.be paid to the personal representatives of the vendor.</p>

In Equity. This cause was heard, on the pleadings and the testimony introduced by the parties, on the hearing. The bill was filed for a partition of a farm of about 100 acres .of land, in the town of Milton in the county of Saratoga. The complainant, Hannah Green, claims, as devisee of her father, Daniel Thomas, one equal moiety of the farm. Daniel Thomas died seised of the same, in April, 1825.

In Equity. This was a motion by the defendant Merrill, to dissolve an injunction restraining him from foreclosing a mortgage on certain land in Salem, Washington county.

<p>This was a motion, by the plaintiff, for an order directing the defendants to pay to the plaintiff the costs of suit. It appeared by the affidavit of the plaintiff’s attorney that the suit was brought to recover an account the plaintiff claimed against J. Burr, the defendant’s intestate, for professional services, as attorney, solicitor and counsellor. In April, 1845, he presented the account to Mr. Lane, one of the administrators, and .requested payinent. Lane declined to pay the same, but said he would examine it, and give the plaintiff an answer. Hearing nothing from the administrators, in December, 1845, a copy of the account was verified by the affidavit of the plaintiff, according to the statute, and the attorney went to Troy to present the same to Lane, with instructions, if he refused to pay it, to offer to refer the same. Lane being absent, the attorney called on a gentleman who he alleges was the counsel for the administrators in all matters-relating to the estate, and counsel in this suit and partner of the defendant’s attorney, and left the account and affidavit with him, and requested him to ask Lane to pay it, and if he declined, then to offer to refer it. That person replied, it would be useless to do so, as Lane had already made up his mind to reject the claim entirely, and had a few days before so written to the plaintiff; and that he was authorized to say Lane would not consent to a reference, as he considered the credit of $50 which the plaintiff had given on the account, was ample compensation for all he had done; but that he would present the account to him. That eight or ten days afterwards, he saw the defendant’s counsel again, who told him he had presented the account and affidavit to Mr. Lane, who refused to allow or refer the claim, and that the plaintiff might sue as soon as he pleased, as the account was absolutely rejected. The suit was commenced in April, 1846, after the plaintiff’s attorney had received from his client a letter of instructions to that effect, enclosing the following : “ David Russell, Esquire, Dear sir: I have submitted to the parties interested in the settlement of the estate of the late Jonathan Burr the bill presented by you for professional services, amounting to about $1480. They do not consent to the payment of it, and therefore, in compliance with their wishes, I do reject the bill. Yours respectfully. J. L. Lane, adm’r, &c. of Jonathan Burr, dec’d. Troy, Dec’r 18, 1845.” It was also shown that this cause had been referred to three referees, who reported $300 due to the plaintiff.</p> <p>In opposition to the motion, the defendant Lane swore that an account of the plaintiff against the estate which was affixed to his affidavit, and which was not verified and contained no credit of $50, was the only account ever presented or shown to him, and was'handed to him in the spring or summer of 1845, by the person spoken of in the affidavit of the plaintiff’s attorney as the counsel for the estate, and that it was never presented by the plaintiff’s attorney. That he never heard of any account verified by the affidavit of the plaintiff, or in which was a credit of $50 or any other sum, until service of the papers for this motion. That the person referred to as being his counsel never-presented any such account, nor did Lane ever tell him, or any one, that he would not refer the claim. That he had never-refused nor been unwilling to refer, nor authorized any one to say so. That notice to creditors to produce their claims was given, by order of the surrogate, and published in July, 1845. The affidavit stated nothing in relation to any conversation with the plaintiff’s attorney. The person alleged in the affidavit of the plaintiff’s attorney to be the counsel for .the estate, swore that the account spoken of by Lane was left by the plaintiff or his attorney, with him, in the spring of 1845, to be presented to Lane, and was so presented by him previous to July, 1845, and was the only account he ever presented to Lane; and that he never asked Lane to refer the same, nor did Lane authorize or instruct him to refuse to refer. That no other account had been left with, or presented to, him, and no account verified by the affidavit of the plaintiff had been presented to or left with him. Nor did he recollect of seeing or hearing of any account on which $50 was credited. That the plaintiff’s attorney was mistaken in the statement contained in his affidavit of the conversation between them. At the foot of the account mentioned in both of the opposing affidavits, there was a certificate of a counsellor at law, that the plaintiff was counsel for the decedent, attended the terms of the court to argue, dec. and that he thought the charge reasonable.</p>

This was an appeal by Butler from the decision of the surrogate of the county of Washington, admitting to probate an instrument purporting to be the last will and testament of Cole Benson, deceased, on the application of Sanford R Benson, the respondent. There were two subscribing witnesses, John F. Beadle and Elijah Brownell; who, together with one Peleg Thomas, were called by the respondent to prove the execution of the will.

In Equity. Motion for leave to amend bill of complaint. The bill in this case was filed about the 3d day of June, 1844, before the vice chancellor of the eighth circuit, upon which an injunction and a ne exeat were issued against the defendant Blair; both of which were served upon him. He gave the requisite security on the ne exeat, and soon after removed from this state to the territory of Wisconsin, where he now resides.

Executions were issued on the judgments recovered in the above suits, to the sheriff of the county of Washington. The execution, in the cause first above mentioned, was received by the sheriff on the 14th of April, 1847.

Lawrence common pleas. Heaton declared before the justice, against Fulton and one Whitney, in trespass, for taking and carrying away certain clothing, &c. The defendants pleaded the general issue, and a justification under an attachment, issued by Cummings, a justice of the peace, against Heaton, in favor of Fulton. Heaton proved that in September, 1845, Fulton and Whitney took a coat, &c. of Heaton. Whitney told Heaton he had an attachment against him.

On the third day of February, 1847, at a special term of the late supreme court, the relator obtained an order for an alternative mandamus to be directed to the defendant, late sheriff of Ontario county, commanding him to file in the office, of the clerk of the county of Ontario, the certificate of sale executed in his name by Alonzo Seymour, his deputy, a copy whereof was annexed to the moving papers, or show cause &c. at the then next special term of said court, why a…

In Equity. This was a bill for partition. Some time previous to the commencement of the suit, Nathaniel Wallis, jun. died intestate, seised of real estate situated in the county of Steuben, _and leaving a widow (Betsey, since married to the defendant Jonathan Niles) and twelve children him surviving.

This was an action of ejectment, brought to recover lands lying in Kings county, tried at the Kings circuit, in April, 1846, before Edmonds, C. J. A verdict for the plaintiffs was taken, by consent, for one undivided half part of the premises, subject to the opinion of this court on a case made, containing the following admitted facts.

Motion to. set aside the report of th,e sole referee. The. action was Eissumpsit, brought in the court of common, pleas of the county of Kings. The declaration contained the common counts for work and labor and materials, together with the. money counts, and an account, stated. The defendants pleaded the general issue, and gave notice of set-off.

This was an action of trespass for cutting timber and trees on the plaintiff’s premises, in the town of Dover, Dutchess, county. The defendant pleaded the general issue, and gave notice that he had a right to cut wood and timber on the premises in question, by virtue of a lease executed by the father or ancestor of the plaintiff, to one John Wheeler, which had been assigned to the defendant and one Shadrach Sherman,.

In Equity. This was an appeal from a decree of the former assistant vice chancellor of the first circuit, dismissing the plaintiff’s bill. The nature of the case, and the facts therein as stated in the pleadings, and established by the proofs, appear suificiently from the opinion of the court.

In Egiuity. The bill in this case was a creditor’s bill, filed by the plaintiff, as administrator with the will annexed of David Judson, deceased, against David Ely, the judgment debtor, and against the other defendants, to reach property of the debtor, alleged to be in their hands.

In Equity. This case came before the court upon an appeal, by the defendant, from a decree of the late vice chancellor of the seventh circuit.

<p>In the interpretation of a contract, and for the purpose of ascertaining the intentions of the parties, it is allowable for the court to resort to the extrinsic circumstances which surround the transaction, and thus to place itself in the situation of the contracting parties, whose language it is called upon to construe.</p> <p>The diversion or use of a part of a lot leased by the superintendent of the Onondaga salt springs for the manufacture of salt, for other purposes,—e. g. the erection of dwelling houses, barns, &c.—will not work a forfeiture of the premises to the people of this state.</p> <p>The statute declaring that the diversion or use of salt-lots, for other purposes than the manufacture of salt, shall work a forfeiture of the estate of the lessee, and divest him of his interest therein, does not apply to the diversion of a part of a lot. It only prohibits the diversion and use of an entire lot, for purposes foreign to the object of the lease.</p> <p>A party to an agreement for the exchange of lands, for leasehold premises, will not be permitted to repudiate the contract, after having enjoyed the leasehold premises assigned to him, for years, without disturbance, and after the other party has expended large sums in improvements upon the land received in exchange by him; on the ground that a legal forfeiture had been incurred by such other party, previous to the exchange, which has given to the lessors a right to re-enter into the leasehold premises; especially in a case where such forfeiture, if any, had occurred by means of the use of the land for a purpose, and in a manner, known to the objecting party, and by virtue of a public law of which he was bound to take notice.</p> <p>Although a legal forfeiture has been incurred by the lessee of land belonging to the state, which gives to the people the right to re-enter, yet the lessee has an interest in the lease until the forfeiture is enforced, and a contingent right to a new lease, in case the people think it proper to waive the forfeiture and to grant a renewal.</p> <p>Such an interest in land will be protected by a court of equity; and a specific performance will be enforced in relation to it.</p> <p>It is a maxim of equity, that what has been agreed to be done, and what ought to be done, shall, for the advancement of justice, be regarded as done.</p> <p>Neither the making of a contract for the exchange of parts of lots held under a lease from the superintendent of the Onondaga salt springs, nor the execution of a conveyance of such parts, by the lessee, will work a forfeiture of the premises, to the people; although such contract and conveyance are in general terms, and contain no restriction upon the grantee, as to the manner in which the premises are to be occupied and used.</p> <p>Statutes creating penalties or forfeitures are to receive a strict construction. And it is no part of the duty of courts to extend the meaning of the words and phrases employed by the legislature.</p>

This was a motion, by the plaintiff, for a rule requiring a special report of the referee to be made, under the direction of P. G. Buchan, the referee, of the facts proved before him, and for leave to incorporate the same in the judgment record.

<p>On the 30th of April, 1845, upon the termination of a copartnership between W. L. N. & I. H. B., under the firm of N. & B., a new copartnership was formed between I. H. B. and T. B. the plaintiff, as their successors in business, under the name of I. H. B. & Co., to commence on the 1st of May. Previous to the time when the new partnership commenced, I. H. B. paid and took up outstanding notes of the old firm to the amount of $10,000, and received in payment for that advance the draft of N. & B. upon J. T. S. & Co., for $3000, and their order upon J. T. S. & Co., dated May 1, 1845, requesting them to deliver to I. H. B. & Co., or order, certain specified drafts, or their avails, to the amount of $6228,88, which J. T. S. & Co. had previously received from N. & B., for collection ; the new firm giving their note to N. & B., for $940,93, the difference between the $10,000 paid by them and the amount of N. & B.’s draft and order. The order was, on the day of its date, endorsed and sent by I. H. B. & Co., to X T. S. & Co., by mail, in a letter requesting the latter to acknowledge the receipt of the drafts called for by the order, and hold them for collection on account of I. H. B. & Co., and to sell two of such drafts, and credit the proceeds. On the 9th of May the drawees of the order wrote to the drawers, merely acknowledging the receipt of such letter and order from them, and promising to refer to such order in their next letter. On the 16th of May J. T. S. & Co. failed; without having complied with the requirements of the order; and having, in fact, parted with the drafts therein mentioned, and used and converted the proceeds of the sale for the purposes of their business, generally, previous to the date of the order, by virtue of a general authority as the agents of N. & B., to sell any paper of theirs whenever their account required it. Up to the time of their failure X T. S. & Co. maintained a good credit and paid all legal demands when presented.</p> <p>On a bill filed by T. B. against I. H. B. & W. L. N., claiming that by reason of the failure of the drawees to meet the order, I. H. B. & Co., the holders, became entitled to receive from N. & B. as the drawers, in proportion to their shares and interest, the amount which they had paid for the order on X T. S. & Co., and praying that W. L. N. might be decreed to refund and pay over to I. H. B. & Co. the moiety of such amount for which he was liable:</p> <p>Held, 1. That the transaction between I. H. B. and the old firm of N. & B. was to be regarded as an adjustment and settlement, pro tanto, of the copartnership business of that firm, and as a purchase by, and a transfer to, I. H. B., one of the copaitners, of all the effects of the firm then remaining in the hands of J. T. S. & Co.</p> <p>2. That at the time of the assignment of the drafts, or their avails, by N. & B., a fund representing such drafts was in the hands of J. T. S. & Co. subject to be transferred by any lawful contract or assignment executed by N. & B.</p> <p>3. That T. B., the plaintiff, deriving his title to relief under the order of N. & B. upon J. T. S. & Co., he became jointly interested with I. H. B. in the fruits of his purchase of the partnership funds, and merely succeeded to an undivided moiety of his interest therein.</p> <p>4. That the agreement was a fair one, without fraud or warranty, and was binding upon both parties; that the new firm were the absolute owners of the entire beneficial interest in the fund; and that the loss thereof, by the failure of the drawers sixteen days after the date of the order, fell upon them, and furnished no ground for relief to the plaintiff, against W. L. N.</p> <p>5. That the order upon J. T. S. & Co. was not a bill of exchange, or an order drawn on a particular fund, but was an assignment of the fund to the holders, and transferred the property therein to them; especially after the presentment of the order.</p> <p>6. That the conduct of J. T. S. & Co., instead of being a refusal to comply with the order, was to be regarded as an acquiescence in its directions, with a postponement of an immediate compliance therewith.</p> <p>7. That J. T. S. & Co. being requested to deliver and receive the fund, themselves, for the new firm, were to be presumed to,have performed that duty; inasmuch as they had the money in their possession. That upon the receipt of the order, and of the letter of I, H. B. & Co. they were thenceforward the holders of the fund as the agents of that firm; and the omission to place it formally to the credit of I. H. B. & Co., or to acknowledge the holding of it for them, was the neglect of an act to be done as the agent of that firm solely. And that by the omission of that act N. & B. ought not to be prejudiced.</p> <p>8. That the payees of the order were bound to use reasonable diligence in presenting the same to the drawees, and demanding payment. That a demand of payment made by J. T. S. & Co, of themselves, was no such demand as the law contemplates when it holds the party to the use of a reasonable diligence; but that a demand should haye been made by some third person authorized to receive the actual possession of the fund.</p> <p>It is a general maxim of the court of chancery that equity regards whatever is ordered to be done by one having authority—as by a testator in his will—or, what ought to be done, as actually done.</p>