Volume 1 — Johnson's New York Chancery Reports

THE bill, which was for a ne exeat, and sworn to, March 3, 1814, stated, that the defendant, on the 22d of October, 1813, purchased of the plaintiff a house and lot of ground in Hillsdale, for 3,300 dollars, and for which he gave the plaintiff seven promissory notes, and a mortgage on the premises to secure the payment; that possession of the premises was immediately given to the defendant; that one of the notes would become due on the 15 th of April next; that on the 20th…

PETITION for the payment, to the father, as guardian to his children, of the sum of 17,166 dollars and 76 cents, already paid into court, by the defendant, as administrator of George Clinton, deceased, for and on account of the distributive share of that estate due the petitioners, who are minors. The father (E. C. Genet) was appointed guardian to his children by this court, in September, 1812, and gave the security required.

BILL for an injunction to stay the sale on two mortgages, under a power of sale- contained in them. The plaintiff deposited with the register the amount which he admitted to be due. The bill charged usury, but which was denied in the answer.

THIS was an application to the court, by petition, that the commissions issued to take the answers of the defendants, in England, be returned, in a short time, or that the bill, as against them, be taken pro confesso. The bill was filed on the 30th of July, 1808 ; an appearance was entered by the two defendants, being aliens resident abroad, on the 23d of November, 1808, by Mulligan, as their solicitor.

THE bill, which was for an injunction to stay waste, stated, that Abraham Tenbroeck, being seised in fee of the premises, devised them in fee to his daughter, Margaret, who devised them to her sister, Elizabeth Schuyler, for life, remainder to her children living at her death, and in default of such children, remainder to the children of her brother, Dirclc Tenbroeck, in fee.

THE report of ihe master, to whom it had been referred to compute the amount of principal and interest due on the bond and mortgage executed by the defendant, contained a calculation allowing compound interest, or interest upon interest, without any special agreement of the parties, or any settlement of accounts, (a)

THE bill, on which an injunction had been granted, filed 21st of May, 1813, recited the act of the legislature, passed the 26th of March, 1813, (sess. 36. ch. 80.,) for the incorporation of the Catskill Bank. The plaintiffs were subscribers. All the subscriptions amounted to 36,432 shares.

DICKINSON and MITCHELL, solicitors, applied to the court, by petition, stating that they had procured a commission of lunacy to be sued out and executed in this case, and that A. Staples was appointed committee of the lunatic’s estate, and that they had done other business for and in behalf of the said committee.; that the lunatic had since been discharged from the operation of the commission, hut the disease returning, a new committee, upon a new commission, had again been…

<p>THE answer of Dorothy Swaine, one of the defendants, was put in separately from her husband, and. without leave.</p>

<p>A guardian appointed by this court, during minority, continues until the infant arrives at 21, unless changed by order of the court, on good cause shown. An infant is not entitled, as of course, on arriving at the age of 14, to elect a new guardian.</p>

WILLIAM GREEK, one of the plaintiffs, and the husband of Temperance Green, in 1792, purchased certain lands in Cosby’s manor, and in the patent of Springfield, under a contract of purchase, made in 1791, from the heirs of John Morin Scott; and, in 1794, he purchased three tracts of land in the Oriskany patent, of the trustees of Governor Livingston, deceased.

WILLIAM TABELE died in July, 1808, intestate, and indebted on a promissory note to the plaintiff; and John Tabele, his partner, died in 1810, intestate, and insolvent; and the firm of John and William Tabele was indebted to the plaintiff. The widow of William Tabele took out letters of administration on his estate, and has fully administered the assets.

THE plaintiff filed a bill, in 1809, against the defendants, as the executors, heirs, and devisees of Thomas Moffat, deceased, for an account, stating an agreement, under seal, dated in April, 1769, between John and William Ellison and the testator, by which they agreed to furnish the testator with a store of goods, which he was to sell on certain terms; and the agreement was to continue for three years.

<p>A rehearing vests in the discretion of the couvt, and is not gvanted on a electee fot costs only, unless under special circumstances.</p>

THE bill, which was for an injunction, stated, that the plaintiff, as security for Jacob I. Vanderheyden, and with him, gave a promissory note for 511 dollars and 70 cents, on the 14th of March, 1811, to John Eddy. That judgment was recovered on the note, in the supreme court, against both the makers, in October term, 1811, on which a fi. fa. was issued immediately thereafter.

\ JOHN ATKINSON, being seized in fee of lot No. 98, in Junius, qn the 4th of June, 1804, by a written contract, agreed to sell to Lewis Birdsall, parts of the lot, or 296 acres, at 4 dollars per acre; 400 dollars of the purchase money to be paid down, and the residue in three annual payments ; and a deed to be executed and delivered, on payment of the second instalment, with a mortgage for the residue of the purchase money.

<p>A demurrer to a bill in equity must be founded on some dry point of law5 which goes to the absolute denial of the relief sought.</p> <p>If the demurrer is bad in part, it is bad inioto.</p> <p>The appointing a receiver rests in the sound discretion of the court; and forms no ground for a demurrer to a bill praying for the appointment.</p>

THE petition, in this case, stated, that the defendant, in 1809, contracted to sell to Jacob Muller 50 acres in lot No. 45, in Cosby’s manor, (held by defendant in trust for plaintiffs, see S. C., ante, p. 26—44.,) for 750 dollars, with interest, payable in seven annual instalments, the whole of which, with the interest, except for one year, remained unpaid ; that G. W. Murray was appointed, by this court, a receiver of all moneys due to the trust estate, in trust for the…

BILLS were filed for an account of rents and profits, &c. of two lots of land, conveyed by James Arden, the defendant, to De Witt Clinton and others, in trust, for the plaintiffs, Louisa Ann, and Eliza, who are the daughters of the defendant, Arden, by deeds delivered to them, the 25th of December, 1805, and, afterwards, in 1807, redelivered by them to their father, and in 1809, depositedj by him, with Clinton. Louisa Ann married with the plaintiff, Sterry, in December, 1809.

THE bill stated, among other things, that Mary Jaques, deceased, late the wife of J. D. Jaques, defendant, was, while the widow of William Alexander, her former husband, seised of real and personal estate to the amount of 50,000 dollars, derived, principally, from the will of her former husband ; that before her marriage with the defendant, and in contemplation thereof, an indenture was entered into between her and the defendant, and Henry Cruger, on the 25th of September,…

' THE petition stated the previous proceedings in this •cause from the filing of the bill to the decree, in May last, (Vide S. C. ante, p. 26.;) that an appeal had been entered from this decretal order, which the master, before whom the account was ordered to be taken, considered as suspending the execution of that order; that the defendant was directed to pay the costs in the several cases mentioned, and on the dismissal of the appeal, heretofore entered by the defendant,…

THE bill, in this cause, which was filed in 1303, stated, that Edward Creighton and James Plains, partners in trade, were indebted, in 1798, and afterwards, to the plaintiff, in the sum of 213 dollars.

THE original bill, in this cause, was filed, in 1802, in the name of Ezekiel Travis, for a specific performance of a contract for the sale of land, and for an account. It stated, among other things, that the plaintiff took possession under the agreement, and made several payments ; and that the defendant had since commenced an action of ejectment, to recover possession of the premises, and had obtained a verdict at law.

THE bill stated, that the plaintiff recovered judgment in the mayor’s court of the city of New-Yorfc, in December, 1813, against the defendant, and E. Hart, for 4,585 dollars and 43 cents, damages, for certain assaults and batteries; that, afterwards, in the same term, the defendant, J. Hart, recovered judgment against the plaintiff for 500 dollars damages for certain assaults and batteries ; that on the 8th of January last, the plaintiff obtained an order to stay…

THE petition of Sarah Gilbert stated, that she was mother of the infant, who was born in October, 1807, and that in December, 1808, Justus Gilbert, the second husbafl-al of the petitioner, was, by the surrogate of Cayuga eíi'iníy, appointed guardian to the infant, and by virtue of that appointment possessed himself of the real and personal estate of the infant. r that in January, 1812, Justus Gilbert absented himself from the petitioner in a secret manner, and enlisted in…

THE bill stated, that, on the 31 st of March last, the parties to the bill submitted their matters in difference, relative to a lease of five acres of land, at Greenbush, from the plaintiff to the defendants, for five years, &c. to three arbitrators, and entered into arbitration bonds accordingly; that the arbitrators met, and heard the parties and their proofs; and after the arbitrators were left alone to deliberate, they called before them a witness who had been already…

THE bill stated, that William W. Sackett, being indebted to the plaintiff, on the 30th of July, 1812, conveyed to him certain lots of land in the town of Newburgh, in Orange county, in trust for all his creditors. The plaintiff, at the same time, made a declaration of trust, that the plaintiff was to sell parts of the land unencumbered, and to pay off encumbrances, and then to pay the debts, and return the surplus to Sackett.

THE petitioner stated, among other things, that she was a native of England, and, on the 9th, of October, 1808, intermarried, in that country, with the defendant, a citizen of the United States.

THIS case arose on a rehearing, against a decree of the late Chancellor, dismissing the bill. The bill stated, that the plaintiffs are the children and heirs at law of William Wilkin, deceased. John Wilkin, their grandfather, before the 29th of July, 1752, purchased of the Widow Phillipse, and her children, a lot of land, (now in Orange county,) of about 500 acres, paid part of the purchase money, and entered into possession, but had no deed. He owed Jacobus Bruyn 200 pounds.

THE bill stated, that Samuel G. Ogden, on the 16th of December, 1805, being indebted to Isaa To imdemnify Murgatroyd, and, also, Governeur Before either of the notes became due, Ogden became insolvent, and notice of the non-payment of the notes was given to Murgatroyd, the endorser, who assured the holders that the notes should be paid out of the property so assigned to him by Ogden, as soon as the ship arrived; and relying on this assurance, the holders forbore to commence…

THE bill, which was filed in July, 1809, stated the act of the legislature, passed the 6th of March, 1807, entitled “ an act to raise moneys to drain the drowned lands in the county of Orange,” (sess. 30. ch. 25.) By the first section of the act, three inspectors were appointed to determine the number of acres belonging to each owner of the tract of drowned lands, which, in their opinion, might be benefited . in removing the obstructions and straightening the river Wallkill,…

WILLIAM I.'SWAN, of Charleston, S. C., being about to sail, as supercargo, on a voyage to the West-Indies, wrote a letter, dated New-York, August 31, 1810, addressed to John Magrath, which, among other things, contained the following clause: “ My dear friend, a thousand accidents may occur to me, which might deprive my sisters of that protection which it would be my study to afford; and, in that event, I must beg that you will attend to putting them in possession of two…

THE plaintiffs were joint owners, with the defendants, of the ship Mary, and her cargo, on a voyage from ./Veto- York to Batavia, and hack. W. I. Robinson, one of the defendants, who were partners in trade, engaged to go out in the ship as supercargo, and an agreement was, thereupon, made and executed between the parties interested, as follows: “We, the subscribers, owners of the ship Mary, having engaged William 1.

THE bill, which was filed in May, 1806, stated that letters patent were granted, on the 4th of June, 1688, to William Nicoll, the ancestor of the plaintiff, “ for all those islands, and small isles of sandy land and marshes, or meadow ground, with the appurtenances, situate, lying, and being on the south side of Long Island, between the Inlet, or Gut, commonly called Huntington Gut, and the lands of the said Nicoll, at a certain river called Conetqunt, in the bay, or sound,…

THE bill stated, that Brockway was imprisoned on a ca. sa., at the suit of Tallmadge and others; that Lyon The bill, then, stated some agreement that the case of the piajnt;gg should be brought within the last decision of the court of errors; and there was a prayer for general relief, and for an injunction to stay all proceedings, by the defendants, on the judgments at law. There was a general demurrer to the bill.

THE bill gave a summary of the suits and proceedings of Codwise and others against Sands and others, of whom the plaintiff was one, and on a petition presented to this court by Gelston, the order of the courts thereon, and the decree of the court for the correction of errors, on appeal. It is unnecessary to detail the voluminous proceeding^ in these causes. The substance of them is to be found in the reports. (10 Johns.

THE plaintiff filed a bill fora divorce against the defendant, her husband, charging him with adultery and cruel usage. The bill was taken pro confesso, for want of an answer; and a reference was made to a master to report the facts, and his opinion thereon. The master reported, 1. Cruel usage by the defendant, of his wife. 2. Evidence of adultery, in his opinion satisfactory, and that the evidence consisted of the testimony of three witnesses.

THIS was a motion to vacate the decree entered in this cause, and all proceedings subsequent to the 17th of December, 1800. It appeared from the affidavits, which were read, that the hill was filed on the 8th of March, 1799, and the answer put in on the 2d of September, 1799.

A RULE was granted, on the 13th of August last, to show cause why proceedings should not stay until adequate security for costs was filed; on the petition and affidavit of the defendants, that the plaintiff resided in the kingdom of France, and seeks, by his bill, an account of partnership transactions, alleged to have taken place partly in Europe, and partly in the United States.

THE plaintiff, on the 30th of April, 1814, filed a bill to obtain a divorce from her husband, on the ground of adultery, The bill stated, that the plaintiff was a native of Great Britain, and now an inhabitant of this state. On the 9th of October, 1808, she married the defendant. The place of the marriagewas not stated,but it was strongly to be inferred from the bill, that the marriage took place in England.

JOHN BRADWELL, the intestate, a native of England, died, at Flushing, in Queen’s county, in August, 1812, intestate, without issue, leaving a widow, and a clear personal estate, after the payment of all debts, &zc. of 6,219 dollars and 51 cents. John had four brothers, Benjamin, Jonathan, Joseph and Peter. He removed, with his brother Benjamin, from England to the United States, in 1802.

<p>Where a motion on some interlocutory matter in a cause, has been once heard and decided on, it cannot be repeated unless on a new ground. It is not enough that additional evidence is offered by the affidavits, of the matter urged in support of the former motion ; nor can affidavits be received on such motion to aid the answer of the defendants.</p> <p>If the answer denies all the equity of the bill, the injunction to stay proceedings, at law, will be dissolved of course ; otherwise, it will be continued until the hearing : and where it may be necessary to ascertain any matter o< fact, for the information of the court, it must be on an issue at law, awarded for that purpose.</p>

THE bill, which was for an injunction, stated, that Plainer, pretending to have a title to lot No. 28, in the Freemason's Patent, on the 30th of December, 1794, sold and conveyed it to JV- &/ I. Bumpus, for 1,788 dollars, of which the sum of 100 dollars was paid down, and a bond and mortgage taken for the residue, since which the sum of 450 dollars had been paid on the bond. The deed contained the usual covenant of warranty.

THE plaintiffs, Nicholas Roosevelt, and Elizabeth Gilchrist, wife of Robert Gilchrist, and the defendant, Thurman, are the. nephews and niece of John Thurman, deceased, and his only surviving devisees and heirs at law; and the defendant is the only surviving executor of the last will and testament of John Thurman, who died in 1809. His will was dated in 1769. These were original and cross suits.

THE plaintiffs, as heirs and residuary legatees of David Mann, deceased, filed their bill against the widow and executors.

THE plaintiff, Eliza Bouquet, and her former husband, Vital Antoine Servant Grangiac, filed their bill against James Arden, De Witt Clinton, and Richard D. Arden, to compel a conveyance, to the plaintiffs, of a lot of land in the city of New-York, and, also, for an account.

LOUISA ANN, one of the plaintiffs in this case, and one of the daughters of James Arden, and Robert Sterry, her husband, filed their bill to obtain the benefit of a convéyance made to the defendants, Richard D. Arden and Be Wilt Clinton, in trust for her, by her father, James■ Arden, and for an account.

THIS cause came on upon a petition for a rehearing. The bill stated, that the plaintiffs, on the 7th of April, 1797, applied to the defendant, as proprietor of lands in the Oriskany patent, who agreed to sell, or lease to them, lot No. 4, in the second allotment of the patent, containing 740 acres; hut he being then a tenant in common with the heirs of Mr. Clark, and no partition made, gave to the plaintiffs the following memorandum, in writing : “ Messrs.

THE bill in this cause, which was filed in April, 1808, stated, that Frost, one of the plaintiffs, and Martin Goddard, then deceased, in August, 1803, agreed to purchase of Henry Corl, jun., lot No. 33, in the town of Marcellus containing 600 acres; that, on the 19th of September, 1803.

<p>A creditor filing a bill against an executor^ cannot make a debtor of the estate a party, except where the executor is insolvent, or there is collusion between the executor and debtor, or in some other special case.</p> <p>As where A. and B. carried on trade, as partners, with the funds of A., in the name ofB., and, without any dissolution of the partnership, or rendering any account to A., B, afterwards, without the consent of A., entered into a partnership with C.,'and carried into the new concern all the funds of the former partnership $ and A., on the death of B., filed a bill against his administratrix, and C., his surviving partner, for a discovery and account; and C. demurrred to so much of the bill as sought an account from him of the transactions and profits of the partnership between him and the intestate, and of the personal estate of the intestate in his hands: the demurrer was overruled.</p>

THE bill stated that the plaintiff sold to James Green, now deceased, intestate, in his lifetime, the one undivided third part of a house and lot of ground, of which the intestate was seised of two undivided third parts, in fee; and for which he was to pay the plaintiff 700 dollars, 200 dollars in cash, and the residue in 55 days, for which he was to give his promissory note; that on the 2d of December, 1807, the plaintiff executed and delivered a deed to the intestate, for…

MOTION, on the part of the defendant, to postpone the master’s sale of mortgaged premises on affidavit of the defendant, Romayne, stating that the bill was filed in March, 1811, that in the latter part of the year 1812, the defendant agreed to relinquish all opposition to the suit, and to give the plaintiff a decree, by consent, for $38,595 75, provided he would wait until the 1st day of September, 1814, for payment; and a decree was entered in pursuance of that agreement.

<p>in a suit between the representatives of a father, and the representatives of liis son, where all the matters in controversy were referred to a master, the court refused to allow the exceptions made to the report; the transactions being very stale and ancient, and most of them family dealings and concerns, and the parties, and their witnesses, having been fully examined before the master.</p> <p>Though the statute of limitations is no bar to p. legacy, yet the court, in regard to very stale demands, will adopt the provisions of the statute, in the exercise of their discretion. Though a lapse of 30 years affords a presumption that a legacy has been paid, yet that presumption may be repelled by circumstances.</p> <p>Where a testator directed his executors to sell his real estate, to pay debts and legacies, in case of a deficiency of the personal estate; and a bill filed by the executors of a legatee and creditor, prayed a sale of the real estate, the executors of the testator having admitted that the personal estate was insufficient, the court directed a master first to ascertain and report whethei the executors had duly administered all the assets, before recourse could be had to the land, or determining whether the devisees in remainder were to be brought in.</p>

That before the purchase, the plaintiff, for 20 years and upwards, had been in the quiet possession ofthe greater part of the premises, as tenant to Glen, and of the residue for about 3 or 4 years. That Glen had good right and title to sell. That the plaintiff had continued, and still was in possession as owner.

THE bill, which was for an injunction, stated, that in May, 1811, the plaintiffs contracted to deliver to the defendant, in satisfaction of a debt of 675 dollars, owing to him, 140 barrels of salt, at Portland, on the southerly side of lake Erie, on the 1st of September, 1812.

PETITION of the three infant plaintiffs, with their names subscribed by A. Burr, their solicitor and counsel, stating, that on the 31st of May, 1814, they exhibited their bill, claiming the whole personal estate of John Bradwell, their deceased uncle; that, “ by the decree of this court, one third of the personal estate was directed to be paid to certain persons who were of kin to the deceased, but subjects of Great Britain, and resident in Englandthat they deem the decree…

THE bill in this case stated, that Thomas Marston, deceased, being seised of a large real and personal estate, made his will, on the 27th of July, 1808, by which he devised parts of his real estate to his grandchildren, and made some of the defendants his executors. The testator died January 11, 1814.

THE plaintiffs, by a deed, dated the 5th of January, 1799, conveyed to the defendant, in fee, a house and lot in JVezo- York, for the consideration of 2,500 dollars, subject to two mortgages ; one to T. Gardner, for 600 dollars, and one to John Jones, for 650 dollars; the deed was in the usual form, with full covenants and warranty, except as to the mortgages specified, and was duly acknowledged by the grantors, and recorded the 16th of July, 1801.

THE bill in this cause stated, that Philip Wendell, oti the 8th of December, 1808, died seised of real estate, &c. in the city of' Albany, part of which consisted of a lot of ground in Court-street; 10 acres of land, called WendelPs Pasture, and lots No. 3. and No. 2., on the east side of Beaver-street.

THIS was a bill for a specific performance of an agreement, under seal, made between the parties, on the 22d of December, 1812, by which they agreed to exchange the farms specified in the agreement, and to execute to each other “ good and valid conveyances in the law of the same,” with covenants of seisin and warranty; and they agreed further to refer it to J. i?.

THE petition of the plaintiff stated, that, in January last, she filed her bill against the defendant, setting forth that she was married to the defendant on the 25th of October, 1795, in this state, and that they were then, and still are, citizens and residents of this state. That, on the 20th of April, 1814, the defendant broke up housekeeping, though, for years before, his annual expenses for housekeeping were between 4 and 5,000 dollars.

MOTION, on the part of the plaintiff, that the answer filed by the defendants be sworn to by Richard Ward, president, and John Bonnett, jun., secretary, of the said society, and by Philemon Halstead and Ichabod Pratt, directors thereof.

BILL for an injunction, charging that the plaintiff applied to the defendant, on the 16th of March, 1812, for the loan of 500 dollars, and agreed to give him at the rate of . 11 per cent, interest, and to execute a negotiable note, with Beriah Palmer, as endorser, payable in six months.

<p>A witness who has been examined before a commissioner, by consent of parties, on affidavit that his testimony was not truly taken down by the commissioner, who had mistaken it materially, was ordered to be re-examined before the examiner, there being no suggestion of any tampering with the witness.</p>

THIS was a bill for the specific performance of an agreement for the sale of the land.

<p>If exceptions are taken to an answer, and the defendant submits to the exceptions by putting in a further answer, the plaintiff, if he thinks the second answer not sufficient, should, within a reasonable time, say three weeks, obtain an order to refer the answer to the master for insufficiency. And the plaintiff ought, either in the order of reference, or by notice to the defendant, to specify to which of the exceptions the second answer is still impei'fect.</p> <p>Where exceptions to an answer were taken in November, and the defendant put in a second answer in December, and the plaintiff, in March following, obtained a rule of reference to the master, without any notice to the defendant, the plaintiff was deemed to have acquiesced in the second answer, and the order of reference was set aside :</p> <p>And though the second answer was not accompanied with an offer to pay the costs of the exceptions, which the defendant, in such case, is regularly bound to pay ; yet, as the plaintiff made no objection on that ground, nor called on the defendant for the costs, he was precluded from making that objection afterwards.</p>

BILL for the redemption of a mortgage. On the 26th of February, 1789, William Brown, being seised of the premises, lot No. 54., in Smith & Graves’s patent, conveyed the same to Joseph Roe, who, for securing the purchase money, reconveyed them to Brown, by mortgage, dated the 27th of February, 1789, and conditioned for the payment of 40Z. with interest, on the 1st of May, 1790.

THIS was a bill for a divorce, a vinculo matrimonii, Sled by the husband against his wife, Ja.mary 15. 1813, on the ground of adultery. The plaintiff stated, that in the year 1780, then being a resident in Mew-York, he married the defendant, then Jane Lowndes, an inhabitant of Mew-York, with whom he cohabited until the year 1784; and during their cohabitation had three children by her, two of whom are still living.

THE bill stated that, in 1804, William Tucker made a verbal agreement with William Alexander, now deceased? in his lifetime, for a lease to Tucker, in fee, for lot 4., in the village of Little Falls, subject to the annual rent of three pounds. That Alexander then acted as a sub-agent, to majtp. verbal agreements, under Barent Bleecker, who was the attorney in fact of Ellis, the owner of the property, and authorised to make and execute leases in his name.

THE bill, which was for an injunction, stated, that on the 23d of January, 1801, the plaintiffs purchased of John Smith, 200 acres of land in lot No. 54., in the township of Manlius, for 1,900 dollars. That the land was then subject to a mortgage by Smith to Michael Myers, for 800 dollars, which the plaintiffs paid to Myers, who agreed that the mortgage might remain for their use, and to secure their title.

THE following are the material facts on which the controversy between the parties in the above causes arose, and will be sufficient to explain the grounds on which the decis'on court turned, without a minute detail of the voluminous pleadings and proofs.

THOMAS NICHOLSON, (the brother of the plaintiff, John,) and John Cantine, now deceased, made a joint location on 4,132 acres of land in the township of Chemung ; and before they obtained the patent, Nicholson died, the 4th of January, 1792.

THE original bill, which was filed April 7th, 1807, stated, that on the 16th of March, Í 795, William Cooper conveyed to John Richardson, lot No. 98., in Dully; lot No. 88., in Brutus ; lot No. 82., in Camillus ; lot No. 29., in Ulysses ; lot No, 72., in Sempronius ; and lot No. 46., in Dryden , being 2,900 acres of land, for the consideration of 2,300 pounds, for which a bond and mortgage were given.

THIS was a bill for an injunction. It set forth an agreement with the defendants, relative to a quantity of timber to be drawn from the lands of the defendants, and rafted to New-York. The plaintiff settled with the defendants for 666 pieces of timber, but the defendants, alleging that the raft contained 1,000 pieces, brought an action against the plaintiff in the supreme court, for the difference; and the parties submitted the matter to the award of three arbitrators.

PETITION, by the defendants, to have the bill in this cause, which was an injunction bill, and had been amended by the plaintiffs, taken off the files of the court; on the ground, that after the injunction had issued, and after the defendants’ solicitor had given notice of his appearance, but before he had actually entered it with the clerk, or had put in an answer, the plaintiffs had amended the bill in a material part without leave, or notice, and without the bill having…

PETITION'of Alexander Crofts, and Mary, his wife, stating, that on a commission, in nature of a writ de lunático inquirendo, Margar H Livingston was found a lunatic ; that she is the widow of Robert T. Livingston, deceased, and entitled to real and personal estate ; that the petitioner, Mary, is the only child of the lunatic ; that the lunatic is in a state of deplorable helplessness and lunacy, and has been so for many years, and is now, and has been, since the death of her…

THE bill in this cause was filed against Blachly, the guardian of the plaintifi, and against the executors of Vail, who was a surety for the guardian, for a breach of trust by the guardian, and for an account.

THE bill stated, thafthe plaintiffs applied to Powell, one of the defendants, to borrow 500 dollars, on a note for that sum, payable in 60 days, made by one of the plaintiffs, and endorsed by the other; that Powell agreed to discount the note, and gave the plaintiffs 400 dollars, in money, and a quantity of indigo, amounting to 70 dollars, retaining the residue, or 30 dollars, as discount.

WELLS, in behalf of the defendant, moved that so much of the order ofthe 23d February last, in this cause,† as directs the issuing of a writ of ne exeat, he discharged; and that the bond given in'pursuance thereof be given up to be cancelled; and that the. defendant have leave to depart from this state, either unconditionally, or upon giving security to return within some given time., The motion was accompanied with an affidavit ofthe defendant, denying any intention, before…

ON the coming in of the answer, in this cause, a motion was made, by the defendant, to dissolve an injunction restraining the defendant, who was a copartner with the plaintiffs, as booksellers, in the city of New- York, from using the copartnership name, or doing any act whatever on account of the copartnership concern.

THE following are the material facts in this case : On the 9th of July, 1806, Benjamin Willson (defendant) sold and conveyed to John Wells, (defendant,) 163 acres of land, in Oxford, in the county of Chenango, and, at the same time, took a mortgage from Wells, to secure the payment of the purchase money, and which was duly registered on the day of its date.

THE bill was for an account of the real and personal estate o{Mary Jaques, deceased, late the wife of the defendant, J. D. Jaques, and’who was formerly the wife of William Alexander, deceased.

<p>Where the facts charged in a bill are fully denied by the answer, there can be no decree against the answer, on the evidence of a single witness only, without corroborating circumstances to su pply the place of a second witness.</p> <p>And where publication had passed In a cause, without any witnesses being examined on either side, the court refused, especially after the lapse of more than two years from the time of filing the bill, to open the rule for publication, on the affidavit of the plaintiff of the discovery of a witness who would prove a material fact in the cause, denied in the answer.</p> <p>Nor would the court, under the circumstances, award a. feigned issue in the cause, that being a measure of sound discretion.</p>

THE bill was filed by the plaintiffs, as assignees of a policy of insurance, underwritten by the defendants, for William Titus and George Gibbs, on which the plaintiffs claimed payment for a total loss. The insurance was on 500 barrels of flour from Newport to St. Jago de Cuba, on board the Spanish brig Patriota, which was captured by a Carthagena privateer.

THE plaintiff authorized Michael Connellin, at Mew-Orleans, to purchase and ship for him a certain quantity of flour and cotton, and to draw on him for payment. Connellin, in March, 1812, drew bills on the plaintiff, in favour of Elkins at 60 days sight, which were accepted by the plaintiff, but, afterwards, protested for non-payment. Elkins claimed the amount as holder of the bills.

THIS was a bill for an account between the parties, as partners in trade. The articles of copartnership were dated the 10th of March, 1783, both parties then residing in the United Netherlands. By these articles, the parties agreed to establish a trading house at New-York ; and the plaintiff was to proceed to New-York, for that purpose, as soon as possible, after the 1st of May, ensuing.

<p>An administrator, or trustee, who resists a claim, and litigates bonajide, from a conviction of duty, and where no intentional default is made to appear, will not, under the circumstances of the case, be charged personally with the costs ; but they must be paid out of the assets of the intestate.</p> <p>On a rehearing the court refused to alter the decree before given in the cause, (see ante, p. 119.,) except as to the payment of costs by the administrator.</p> <p>And the court refused to order the costs of the adminstrator of the mortgagor, on the sale of premises mortgaged in fee, to be paid out of the proceeds in this court.</p>

THE plaintiffs recovered four judgments against W. Dunlap, the elder, and James Gardner, defendants, on four promissory notes, made in May, 1811.

THIS was a bill for a divorce.* The plaintiff stated, that, , . . , m 1780, he was married to the defendant, m the city of New-York, where they both resided. That at the time of adultery charged, the plaintiff was, and still is, an inhabitant of, and resident within this state.

MARGARET JAUNCEY, of New-York, widow, being possessed of considerable real and personal estate, on the 29 th of August, 1798, made her will, the parts of which, material to be stated, were as follows : “ My worldly substance I do dispose of as follows ; to my step-daughter, Sarah Jauncey, 1 do give and bequeath such a portion of my household furniture,” &c. “ The rest of my household,” &c. “ I direct my executors to sell,” 8zc. “ and apply the proceeds thereof to the…

A MOTION was made, that the rule to pass publication, in this cause, be enlarged, until the plaintiffs had put in and perfected their answer to a cross-bill filed by the defendants. Issue had been joined, and witnesses examined on the part of the plaintiffs, when one of the defendant’s died; and the answers of all the present defendants to the bill of revivor, and supplemental bill, were not put in until the 8th of May last; and the cross-bill was filed the 23d of June last.

THIS was a bill for an injunction. On the 2d of April, 1812, the plaintiff purchased a farm of the Westchester Manufacturing Society, and gave a bond and mortgage to secure part of the purchase money. On the 22d of September, 1812, he conveyed the equity of redemption to Fanning, subject to the mortgage, which Fanning undertook to discharge; but the plaintiff took no security, by way of indemnity against the bond.

THE bill stated, that on the 30th of July, 1812, Sackett, one of the defendants, was seised of the premises, being indebted to the plaintiff and others; and, in order to secure them, conveyed the premises to the plaintiff, his heirs and assigns; and the deed was registered the 6th of August, 1812.

THE hill stated, that the plaintiffs are the only surviving children and heirs of Andrew Dunscomb, son of Daniel 'Dunscomb, deceased. That Daniel Dunscomb, on the 7th of January, 1795, made his will, and devised the one fourth of all his estate, real and personal, to his son Andrew ; and if he died before the testator, then his share to go to his children, in. equal proportions.

ON the 8th December, 1807, Munro obtained a judgment in the supreme court against Green, which became a lien on land of Green, in the town of Schuyler, in Herkimer county, being lot No. 50., in Cosby's Manor. In August, 1811,1 a test.fi. fa. was issued on the judgment, and the lot, with other lands, was conveyed, by the sheriff, to the plaintiff, as the highest bidder, on the 12th of December, 1812.

THE bill stated, that the defendant, pretending to he lawfully possessed of a bond, made by James Hamilton, the father of the plaintiff, dated the 27th of September, 1794, conditioned for the payment of sixty pounds, had brought an action, at law, thereon against the plaintiff, as administrator of his father’s estate, and the cause was at issue. That the defendant pretended to have another bond, executed by the plaintiff’s father, for 800 pounds, which he refused to show.

MOTION to expunge some part of the deposition of one of the witnesses, examined on the part of the plaintiff, on a certificate of the examiner, that the witness applied to him, a short time before publication was passed, alleging a mistake in taking down his testimony. The examiner, also, certified that the witness was very deaf.

THE testator, James Manning, made his will on the 29th of November, 1808, and died the next day, leaving a consi- ■ derable real and personal estate. By the will, his executors were empowered to sell all his real estate, except that on York Island.

<p>If, on application for a loan of money, the sale of shares in an insurance company, at par, is made the condition of the loan, when the shares are, in fact, below par, the transaction is usurious.</p> <p>And ifit be impossible to ascertain the cash value of the shares, the company having failed, the sale will be rescinded, and the mortgage taken by the lender, ordered to stand as security only for the cash lent, and the interest thereon.</p>

THE petition of the defendant stated, that on the 1st of February, 1798, he obtained a judgment, in the supreme court, against George W. Cook, for 1,600 dollars, that in 18’13, he sued out execution on the judgment, and was proceeding to sell the lands of Cook, which were bound by the judgment, situate in Norway, in the county of Herkimer, when the plaintiffs, in August, in 1813, filed their bill in this court, stating that they were the owners of the land, having acquired a…

MOTION to dissolve the injunction granted by the master in this cause, on the matter of the bill only, and before answer.

EDMUND PRIOR, a merchant in the city of New-York, became bankrupt, in March, 1802. The defendant, who was his confidential clerk, and kept his cash and papers, paid and received moneys, sold goods, made entries in the books, &c.; was retained in his service, as such clerk, from the 29th of November, 1790, to the 1st of May, 1796, and from the 4th of July, 1797, to the 4th of July, 1801.

IN the first of these causes, the petition of E. C. Genet stated, that, pursuant to an order in this cause, of the 21st of October instant, the defendant, M. B. Tallmadge, as administrator of George Clinton, deceased, had deposited in court 6,338 dollars and 37 cents, in cash, a promissory note, several certificates of stock, and a power of attorney, as mentioned in the order; that the money, &c. belong to the plaintiffs, as part of the distributive share coming to them from…

THE bill, which was filed in October, (after the 10th,) 1814,‘stated, that the plaintiff, Winter, was trustee of Healley, for certain lands, including a subdivision of lot No. 26., in Cosby’s Manor, containing 50 acres.

THE bill, which was filed in January, 1812, stated, that the plaintiffs, in March, 1803, entered into articles of agreement, in writing, with Thomas Golden, whereby he agreed to sell to the plaintiffs, in fee, and they agreed to purchase, a lot of land in Newlurgh, containing 10 acres, for which the plaintiffs agreed to pay 1,000 dollars, in 4 years, with interest from the 1st of May, 1803; and Golden agreed that the plaintiffs might take possession, and that he would…

JOSEPH LATHAM, deceased, in his lifetime, was seised of a house and lot, (No. 318 Water-street,) in the city of New-York, andón the 14th of July, 1806, made his will, at Charleston, S. C,,by which he gave one half of the lot to his wife, Martha, in fee, one fourth to his son Gilbert, in fee, and, if he died unmarried, then to his wife, and one fourth to his nephew, John Latham, and his niece, Mary. Gilbert Latham died unmarried.

On the the 19th of August last, a commission, in the nature of a writ de lunático inquirendo, was issued, directed to certain commissioners, to inquire of the lunacy of A. II. Wendell, of the town of Water Vliet, in Albany county.

BILL filed by the wife against the husband for a divorce from bed and board, for cruel usage, and, also, for a maintenance, out of the husband’s estate, for herself and child. It charged that the parties were married in 1807, and between that time and November, 1813, when the plaintiff abandoned him, the defendant was in the habitual practice of beating her, and otherwise treating her in a cruel and inhuman manner; and many instances of cruel treatment were specified.

<p>The 12th section of the act concerning divorces, (sess. 36. ch. 102.1 N. R. L. 197.,) relative to security for costs to be given by the plaintiff, does not apply where the bill is filed on the ground of adultery, though the bill contains, also, a distinct charge of cruel and inhuman treatment.</p> <p>Jt seems, that-the charges of adultery and cruel treatment cannot both be con* tained in the same bill.</p>

THIS cause coming on to a hearing, H. BleecJcer, for the defendants, objected to the hearing, on the ground, that to the answers of the executors replications had been filed, and that no rule had been entered to produce witnesses.

<p>An injunction will be granted to secure to a party the enjoyment of a privilege, conferred by statute, of which he is in the actual possession, and when his legal title is not put in doubt.</p> <p>As where a turnpike company, incorporated with the exclusive privilege of erecting toll-gates, and receiving toll, had duly opened and established the road, with gates, &c.; and certain persons with a view to avoid the payment of toll, opened a by-road, near the turnpike, and kept it open, at their own expense, for the use of the public, by which travellers weie enabled to avoid passing through the gate and paying toll to the plaintiffs; the court granted a perpetual injunction to prevent the defendants from using, or allowing others to use, such road, and ordered the same to be shut up.</p>

THE bill, which was filed the 30th of October, 1815, stated, that the defendant, Capron, on the 30th of September, 1813, mortgaged to the defendants, Lockwood and 'M-Pherson, certain lots of land in Albany, to secure the payment of 1,890 dollars, being the consideration money for the purchase of the lots of them, on that day; the amount was to be paid in three instalments, of 630 dollars each, with interest, on the 30th of September, 1814, the 30th of September, 1815, and…

JOSEPH HOPKINS, of the city of New-York, died, in July, 1803, intestate, leaving a widow and several infant children. The plaintiff and Elijah Ferris, with the widow, were appointed administrators of the estate; and the plaintiff was appointed guardian to the children, who are still under age. The principal burden of the administration devolved on the plaintiff, and.the goods and effects of the intestate, to a large amount, came into his hands.

THE petition of the defendants stated, that the plaintiffs filed their bill on the 11 th of April last, and it set forth the substance of it, which related to fraud alleged in the purchase of a lottery ticket that had drawn a prize ; that an injunction was issued, &c.; that the defendants, intending to defend the suit, employed D. Rodman as their solicitor, who gave notice of his appearance on the 13th of April; that he prepared an answer to the bill, the substance of which…