Volume 1 — Lockwood's Revenue Cases

Plea in abatement of another suit depending. A suit was commenced by the plaintiff below against the defendant in error, and discontinued before his attorney received notice of retainer from defendant’s attorney, the plaintiff’s attorney having duly entered his rule for discontinuance of the suit: a new suit was then commenced, to which the above plea was interposed.

This was an action by a physician against the overseers of the town of Hebron for medical attendance bestowed on paupers, in cases of urgent necessity, but without any actual employment by the overseers, or any promise to pay. The Supreme Court held the overseers liable upon their implied undertaking or legal obligation to provide proper medical aid for paupers. But on error

The facts of this case were as follows: the master of a canal boat laden with merchandise, being in the city of New York, obtained from the defendants, who had been engaged for ten years in the business of towing boats by means of steamboats, on the Hudson river, a permit in the following words.. “ Capt. H„ of the steamboat N., take in tow for Albany, canal boat A. &c., at the risk of the masters and owners thereof, and collect $30.” The permit was delivered to the captain…

This was an action of trover by Hallett, plaintiff below1, for a brig and' cargo. The plaintiff being owner of a brig called the Jane, sent her to trade in the West India seas, under Spanish colors. On the second of April, 1813, she set out on her voyage from Porto Cabello, loaded with a valuable cargo, protected from British capture by a Spanish owner and papers.

Upon the special verdict, setting forth the particulars of the entry, grant, and possession under it, of the 'premises in question, The Supreme Court held that the adverse possession set up by the defendant, La Fromboise, was not available under the statute of limitations, as the grant under which his ancestors entered, (from the French Government in Canada,) was not an effectual deed, as the grantor had no color of title.

Petition in partition, under statute for the partition of lands of April 12,1813. Plea, that defendant, at the time of preferring the petition and at the time of pleading, was sole seised, and possessed in his demesne as of fee, &c., and traversing the tenancy in common. To this plea was annexed a notice, that he had been so seised, for twenty-five years previous to the exhibiting of the petition, adversely to the claim of the petitioners.

This was a bill to set aside a deed of premises, charging it to have been fraudulently obtained by the grantees, and praying other appropriate relief. The complainant was the grantee of the same premises under a deed bona fide and for good consideration.

The statement of the facts in this case, is taken from the opinion of Stebbins, Senator, and seems to contain all that is essential to a right understanding of the points decided in the Supreme Court and in the Court of Errors. That Senator was for reversal. “ The lands in controversy in this cause, are situated in the county of Saratoga, and are part of a tract granted by letters patent to William Appel in 1708.

<p> Adverse possession; Encroachment; Acquiescence; Evidence. </p>

Irr ejectment for an undivided part of a lot of land, brought by N. who claimed under a deed from one of the children of A., the following facts appeared. A. died in possession of the lot sometime between 1776 and 1782, leaving several children to whom he devised his real estate, in general terms, as tenants in common.

Bradford, the plaintiff below, defendant in error, brought his action to recover a portion of his salary as minister of the Reformed Dutch Church in Albany, under a contract with the Church, to act as its minister for a staled salary, founded on a call referring to the rules of church government, established in the national synod held at Dordrecht in 1618, and 1619, and the articles explanatory of the government and discipline of the Reformed Dutch Church, in the United…

Covenant against subscriber to articles of joint stock purchase of lands.

This was an appeal from a decretal order of the Chancellor, in a case where a bill was filed charging a deed conveying lands, absolute on its face, to be a mortgage, and claiming to redeem, &c. The… Held: that such an order of reference was not a final order or decree within the meaning of the statute limiting appeals; and the appellant not having brought his appeal within the time limited by statute to prosecute it, the appeal was accordingly dismissed.

In this case, the defendant brought a writ of error for several defects in the record. 1. The verdict was defective ; the damages found by the jury exceeding the damages laid in the declaration. 2. The judgment was entered for the damages and costs only in an action of debt, thus giving damages and costs, where no debt was found. 3.

This was an application on motion for a peremptory mandamus to the trustees of Brooklyn, to compel them to file a report of commissioners of assessment and estimate, and obtain a confirmation of the same, and to have the damages which had been awarded, duly assessed, The Supreme Court refused to issue the peremptory mandamus, as the relator did not show a complete, but only an inchoate right, and therefore, was not entitled to a mandamus ; that this writ will not be allowed,…

The bill in this case was filed by Underhill and others, in the Court of Chancery, to have carried into effect an appraisement or award made in their favor against Tan Cortland and others, by three appraisers or arbitrators, appointed by the parties under the covenant in a lease for a term of years of certain water privileges, mill, &c., of which lease Under-hill, and others, the plaintiffs, were assignees.

The Supreme Court held, in a suit against a surety in an arbitration bond, that where a submission in writing had been made, (before the Rex'. Held: in a suit against a surety in an arbitration bond, that where a submission in writing had been made, (before the Rex'.

<p> Award; Submission; Evidence. </p>

<p>Assumpsit; Money had and Received ; Champerty. ■</p>

This case began thus:— Mann sued Hatch before a justice of the peace, for services rendered by him in arresting one G. on a justice’s warrant. He proved that he, on being applied to at an unseasonable hour, declined the service; but on Hatch’s offering to “ pay him well for it,” he agreed to perform it, and employed a person to assist him; that they went to the house of G. at three o’clock in the morning, and at about day break, succeeded in arresting him.

This was an action of assumpsit, brought on articles of subscription for the benefit of Hamilton College, by which the subscribers bound themselves: 1.

Debt on bond in New York Common Pleas, the condition of which was, that if the said W. C. G. and C. V. S. K., (obligors and defendants below,) should pay all such… Held: in the opinion of the Supreme Court, that the declaration is bad, in not alleging a request, pursuant to the provisions of the 16th sect, of the statute. The court reversed the judgment of the Common Pleas, for these reasons; and now on writ of error to the Court of Errors, after the argument was closed,

<p> Attorney's Lien for Costs. </p>

This was an action against the owners of a steamboat as common carriers, for the loss of a packet of bank bills delivered to the captain for carriage and delivery. Held: that the owners of such a boat, carrying not only passengers, but light freight and parcels for hire, were common carriers, and answerable for all goods shipped on board their vessel, unless lost by inevitable accident or the enemies of the country.

Action against drawer and endorser of a bill of exchange as follows: “Farmer’s Bank of Seneca County, At thirty days after date, pay to… Held: that associations under the general banking law, have no authority to make bills of ex-cfiange, or to issue any negotiable paper, save under the sanction of the comptroller, and in the form prescribed by the statute; and that no action can be maintained against the bank or others who are parties to the paper so illegally issued, this…

In this case, the Court of Errors held, that the act entitled “ An act to authorize the business of banking,” passed April 18th, 1338, was… Held: that the act entitled “ An act to authorize the business of banking,” passed April 18th, 1338, was constitutionally passed, although it did not receive the assent of two thirds of the members elected to each branch of the legislature, was a constitutional and valid act, and that the decision in the case of Warner v. Beers, to that…

Error from Supreme Court. This was an action on the case for negligence in the collection of a draft, originally brought in the Superior Court of the city of New York, by Suydam and Boyd, against the… Held: that the laches of the agents, in forwarding the draft for acceptance, made them liable for this neglect; and that the amount of the draft was, in the absence of any other proof in the case, the rule of damages.

<p>This case was first decided by the Superior Court of N. Y., in favor of the defendants, upon the following facts.</p> <p>The defendants received from plaintiff for collection, a bill of exchange on Philadelphia, payable five days after date, which they transmitted to the Philadelphia Bank. ,On the 28th of' June, (the bill being dated the 26th,) the bank delivered the bill to their notary, who the same day presented it for acceptance, which was refused, but the notary omitted to give notice to the endorsers of the non-acceptance. On the third of July, the bill was protested for non-payment, and notices sent to the Merchants Bank, under cover, directed to the parties to the bill. On the 6th, the holders received their notice, and gave notice on the 7th to the other endorser. The plaintiffs having failed in their suit against him for want of notice of non-acceptance, this suit was commenced against the bank to recover the amount of the bill and their damages. It was proved on the part of the defendants, that by the law-merchant of Pennsylvania, it was not necessary to present the bill for acceptance, and to give notice of non-acceptance, but that it was sufficient to present it at maturity for payment.</p>

The Supreme Court held in this case, (overruling the case of Cuyler v. Nellis, 4 Wend. 348,) that a notice of protest sent by mail, directed to the town where the party resides, is sufficient,… Held: that where the sum specified in the notice of protest, varies from the true amount of the note, it is for the jury to say whether the party has or has not been misled; and gave judgment for plaintiff.

The judgment in this case was affirmed, the Court of Errors holding with the Supreme Court, that the plaintiff was properly non suited in the court below. But as the cases of Herrick v. Carman, (12 J. R. 159,) and Tillman v. Wheeler, (17 id. 176,) are commented on and explained, and that of Nelson v. Dubois, (13 id. 175,) overruled by it, we have thought proper to call the attention of the reader to the case.

The plaintiffs in error brought assumpsit, in the court below against the partners of the firm of Norton, Bartle and M'Neiland the defendant Westfall, to recover the amount of a bill of exchange, drawn by them upon the plaintiffs, which the latter accepted, and paid at maturity. The bill was in these words:— Phelps, July 1, 1839. Messrs.

January, 1835, In Supreme Court. The Supreme Court held, that 1. “ The proprietors of islands, separated by a 'stream in which the tide… Held: that 1. “ The proprietors of islands, separated by a 'stream in which the tide does not ebb and flow, own respectively to the centre of the stream unless the language of the grants under which the islands are held, is such as clearly and unequivocally to show that the intent of the parties was that the grant should not extend beyond…

Lyon sued Jerome in trespass for taking a quantity of stone from his quarry, for the construction of locks on the Oswego Canal. Held: that the authority of the canal commissioners, under the canal statutes, to enter upon and take possession of the lands, &c., of individuals for the construction of a canal, can only be executed by them, in person, or under their express direction; and that an engineer or any other sub-agent of the state, can not lawfully exercise…

The defendant below, and another person, in November, 1834, contracted with the canal commissioners to perform certain work on the Chenango canal, by October, 1836; and having commenced the work, they, in January, 1836, assigned their contract to the plaintiff, who agreed to finish the job at his own expense, for the price stipulated in the original contract ; which upon his completion of the work, were paid to him.

The appellants (complainants below) exhibited their bill in Chancery against the respondents and 16 other defendants, in which they set forth that Governor Sir Henry Moore, on the 2d of February, 1768, purchased of the native Indians, a tract of land containing 25,000 acres, then in the county of Albany, now in the county of Montgomery, for the use of Peter Lewis, and about 25 others, named in the bill; who thereupon petitioned for a patent, which issued to them accordingly,…

This was a bill by the appellants, complainants below, substantially similar to the foregoing, setting forth a title to a part of the same lands, under the executors of Sir William Johnson, and stating the same facts in relation to the loss or destruction of the deeds, and setting forth that defendants Morgan, &c., the complainants had commenced two actions of ejectment against two of the defendants, 'which were at issue.

In this case the Court of Errors, on appeal from an interlocutory order of the Court of Chancery, granting a new trial, held, that… Held: that although the Supreme Court had ordered a vacatur to be entered of a satisfaction of a judgment which had been paid to the original plaintiff, after an assignment of it, of which the defendant was ignorant at the time of paying, yet that a junior judgment creditor, who had lent his money and entered up a subsequent judgment on…

Bill for specific performance, which it had been decreed by the Chancellor, the respondent Bennett, who filed the bill, was entitled to have.

The Court of Errors held, that an exception to the report of a master, the party objecting must specifically point out the error. Held: that an exception to the report of a master, the party objecting must specifically point out the error.

The bill in this case was filed by the plaintiff Clowes, who had purchased two lots of land of V. against whom there was an existing… Held: that though the court would have interposed and prevented the sale of the plaintiff’s two lots, until the judgment creditor had exhausted the estate remaining in the hands of the debtor, before selling the plaintiff’s lot, if he had applied in due season for that purpose; yet, as he knew of the sale at the time, and delayed four…

This was a bill for specific performance. Held: that the contract as to the purchase of the land was good, and that neither party could take advantage of its not being in writing; that the defendant’s demand made after the bill filed, was a nullity, and that the contract was not thus rescinded, and that the single witness of the defendant, was sufficient to establish the contract…

The bill in this case was filed against tenant to restrain him from cutting down wood for the purpose of burning bricks, and from digging up the soil to make bricks. Held: that under the covenant in the lease, the acts of the tenant were waste, and, without regarding the grounds of the Chancellor as to what was not alleged in the bill—that enough was alleged to show that the waste was prohibited by law, and not authorized by the contract of the parties. 2.

<p> Jurisdiction ; Decree. </p>

This was an application to open a sale of mortgaged premises, and for a resale, which the Chancellor refused. The questions presented were chiefly of fact; viz., whether the mortgagor had been misled by the mortgagee, in reference to the foreclosure of the mortgage, and in consequence did not attend the sale.

The respondents, Gouverneur and Kemble, as factors of the appellant, Le Guen, on the 13th of April, 1795, at New York, sold to Lopez and Rivera, about 600 bales of cotton, and 12,000 pounds of indigo of the isle of France, amountng to $122,415 in the whole; for which the purchasers gave their promissory notes, payable in one year, with interest after 60 days.

A suit was pending in the Supreme Court by the appellants to recover the amount of certain advances made by 1 them, under an agreement, to a third party. By consent of parties, the cause was referred to three referees, and the usual rule entered for that purpose. The cause was fully heard before them, two of whom in January, 1807, made a report in favor of the appellants, for $3,740. The other referee did not concur.

<p>The appellant, King, filed his bill before the Chancellor, to be relieved against a judgment obtained against him as a surety for the payment of a promissory note, which Baldwin held against one Fowler. King had defended the suit on the note, on the ground that he had been discharged by the laches of the holder; that he had informed Baldwin of the failing circumstances of F., the maker, who afterward failed, and took the benefit of the insolvent act; and it was proved in the present case, that K., had frequently urged B. to sue F.; but that B. said he believed F. to be an honest man, and he would not trouble him; that he would as soon lose his debt as prosecute him for it.</p> <p>The judge at the circuit, held the evidence not a good defence.</p>

J. G. and J. G., junior, and Degroot, the defendant’s intestate, made their joint promissory note for £133, payable to the appellants. Degroot died intestate. The appellants prosecuted the surviving makers of the note to judgment, issued a fieri facias into the county where they resided, which was returned nulla bona, and they have since become insolvent, but the administratrix has sufficient assets from the intestate to satisfy the debt.

<p> Effect of Denial of Equity of Bill, by Oath of Defendant to New Matter in Avoidance. </p>

<p>In the case of Penniman v. Meigs, an action of assumpsit, was brought upon a promissory note given in Connecticut, after which the defendant removed to Albany, and thence a short time before the note was given, to the state of Rhode Island. After the giving of the note, the defendant obtained his discharge under the insolvent act of this state, discharging his person and future acquisitions from the debt. A verdict having been found for the plaintiff, subject to the opinion of the court, a new trial was granted.</p>

<p> Powers of Canal Commissioners to take Private Property. </p>

<p>This case, reversing all the previous decisions of the courts of the state in support of the exclusive grant from the legislature to Fulton and Livingston, of navigating its waters by steam, was the last struggle in that memorable contest. An ill-judged, though well meant liberality, had given an invidious monopoly for a long term of years to the grantees, and some stringent and novel legislation had so fenced it round, that it was almost impossible to test the question of its constitutionality, without at once submitting to an enormous sacrifice. The history of the controversy is now passing into comparative oblivion; but its nature and the great principles of constitutional law involved in it, will always render it of the highest interest to American lawyers and statesmen. Although it is true, a mere wreck of the monopoly remained after the decision of the Supreme Court of the United States, in the case of Gibbons v. Ogden, 9 Wheat. 1, yet the waters of the state were not declared free to its own citizens, until the decision of the Court of Errors in this case had adopted the doctrines of the Supreme Court in that case, as equally applicable to the citizens of the state, as to those of other states. The records of this grant and consequent libgation, are full of instruction to legislators ,• an incautious liberality, or perhaps even a commendable spirit of munificence to a public benefactor, had imposed the most galling fetters upon the general industry and enterprise of our citizens in regard to steam navigation. The monopolists shut their eyes to the precarious tenure by which all such exclu-, sive privileges, when they once became restraints on the freedom of competition must ever be held, under a popular government and an active commercial people.</p> <p>The first step in the legislation on this subject, was a grant by an act passed sixty years since, (March 19th, 1787,) entitled “ an act for granting and securing to John Fitch the sole right and advantage of making and employing for a limited time the steamboat by him inventedThe preamble to this act, recites that “ whereas John Fitch, of Bucks county, in the state of Pennsylvania, hath represented to the legislature of this state, that he hath constructed an easy and expeditious method of impelling boats through the water by the force of steam, praying that an act may pass granting to him, his executors, administrators, and assigns, the sole and exclusive right of making, employing and navigating, all boats impelled by the force of steam or fire, within the jurisdiction of this state for a limited time. Wherefore, in order to promote and encourage so useful an improvement and discovery and as a reward for his ingenuity, application and diligence,” the first section then grants to Fitch the “ sole and exclusive right and privilege of constructing, making, using, employing, and navigating, all hinds of boats or water craft,” by fire or steam in the waters of the state for 14 years from the end of that session of the legislature.</p> <p>The second section imposed a penalty of £100 for every violation of this right, and a forfeiture of the boats or water craft, together with the steam engine, and all appurtenances,' <fcc., of such boats.</p> <p>How far Fitch attempted to put a boat in actual operation, impelled by fire or steam, accounts at this day are somewhat obscure and contradictory. That so apparently easy an application of a motive power then so familiar to engineers and capitalists, should have stood still for so long a period after this grant, seems at this day, truly a wonder. Nothing effectual, however, having been accomplished under the grant to Fitch, in 1798, Robert R. Livingston, then Chancellor of the state, applied to the legislature for a similar grant, and although the adoption of the constitution of the United States in the mean time, had subjected the navigable waters of the several states to the commercial legislation of Congress, no notice appears to have been taken of this important cession of jurisdiction to the general government, and an act was accordingly passed on the 27th of March, 1798, granting to Robert R. Livingston the exclusive privilege of using steamboats in all the • waters of the state, for a term of 20 years, and repealing the grant to Fitch.</p> <p>On the 5th of April, 1803, was passed a further act entitled “ An act relative to a steamboat,” by which the rights granted to Livingston by the act of ’98, were extended to RR. Livingston and Robert Fulton for the term of 20 years from the passage of the act, and the term for giving the “ necessary proof of' the practicability of a boat of 20 tons capacity being propelled by steam through the water with and against the ordinary current of Hudson river taken together, four miles per hour,” was also extended two years from that date. By an act of 6th April, 1808, these privileges were extended for 30 years more, and violations of them were to be punished by forfeiture of the boat, &c.</p> <p>By an act of April 9, 1811, an injunction was directed to be awarded to protect the grantees. The war was not however commenced in the courts for the destruction of this monopoly, until the case of</p> <p>Livingston v. Van Ingen, 9 J. R. 507.</p> <p>In that case the grantees L. and F. filed their bill in Sept. 1811, against Van In gen, Boyd, and 20 others, reciting their grants and various provisions of the acts, and charging that the defendants had set up a boat called the Hope, and were engaged in carrying passengers for hire between the city of •New York and Albany, praying an injunction to restrain the defendants from running the boat, &c., upon the ground of the provisions of the acts of 1811, authorizing such an injunction.</p>

<p>After the decision of the case of Gibbons v. Ogden, in the Supreme Court of the United States, the defendant Livingston equipped a steamboat called the “ Olive Branch,” which he caused to be enrolled and licensed, and with which he proceeded from the ciiy of New York to Jersey City on the opposite shore, and after landing two boxes of goods and some passengers there, pursued his course to Albany. The company made an application for an injunction, and the defendant set up his coasting license and these facts in his- defence.</p>

<p>Charles A. Davis, the plaintiff in error, was sued in the Supreme Court on a recognizance of bail, entered into by him in a civil suit. A verdict was found, and judgment rendered against him thereon. He then removed the record into the Court of Errors, and assigned for error, that at the time of the commencement of the suit against him, he was, and ever since has been, Consul General of the King of Saxony, in the United States, duly admitted, &c., by the President of the United States, and ought not to have been impleaded in the Supreme Court of the state of New York, but in the District Court of the United States for the Southern District of New York, or in some other District Court of the United States, and that the Supreme Court had not jurisdiction, &c.. Defendant in error pleaded in nullo est erratum, &c.</p>

<p>Error from the Supreme Court. Trespass quare clausum, &c., by Bloodgood against Railroad Company for entering and taking premises for their railroad.</p> <p>The defendants justified under their act of incorporation, and the Supreme Court held their plea of justification good, although it did not aver that they had tendered or made satisfaction, or taken the steps prescribed by their act of incorporation, to assess and satisfy the damages sustained by the owner.</p>

The Supreme Court in this case delivered no formal opinion on the question involved, viz., whether the legislature have power under the 15th section of the 4th article of the constitution, (of 1821,) to direct the mode of appointing justices of the peace for cities, but merely referred to their opinion in The People v. Kane, 23 Wend. 414, where they held that the legislature had not the power. But on writ of error in this case,

Information in the nature of a quo warranto against the defendant for exercising the office of judge of the Court of General Sessions in the city of New York. The information was filed, June 15,1840, and alleged the usurpation from the 1st of that month.

<p> Covenant to stand Seized ; Deed of Bar gain, and Sale. </p>

<p>This case was reported in Supreme Court, as a case of affirmance of the judgment of the Common Pleas, where the suit was commenced, and which held that the amount in money was the proper rule of damages in an action on the following note:</p> <p>“ For value received, I promise to pay John Pinney $73 50, on the first day of August, 1822, in salt at 14 shillings per barrel, in good boatable order. Liverpool, June 30, 1820.</p> <p>Asa Gleason.</p>

This was an action of ejectment, and the case arose upon the construction to be given to a conveyance of two certain tracts of land described as follows: “Two tracts or parcels ef land lying, &c,,… Held: that the whole 6 by 8 miles in .each tract passed to the grantee by this conveyance.

Ejectment by Yan Wyck against Wright.and Johnson* for a tract of land in Tompkins county. Both parties claimed title to the land in question under Robert C. Johnson, grantee of Greenleaf, the original patentee from the state; the plaintiff claiming the disputed tract as grantee of the southwest quarter section, and the defendant as grantee of the north- ■ west quarter section of township No. 10.

Ejectment. The Supreme Court held, in this case, where in the conveyance of premises situated on the bank of a river not navigable, the lines are stated to run from one of… Held: in this case, where in the conveyance of premises situated on the bank of a river not navigable, the lines are stated to run from one of the corners of the lot to the river and thence along the shore of said riber to a certain street the grantee takes adfilum aquae. Justice Bronson, dissentiente.

<p> Deed by Husband and Wife of Wife’s Estate; Acknowledgment of Wife. </p>

In this case, the Chancellor held, that an estate devised to a grandson of the testator, without any words of limitation, to create a fee, gave only a life estate,… Held: that an estate devised to a grandson of the testator, without any words of limitation, to create a fee, gave only a life estate, and that devises to the sons of the testator of lands, with directions to the son to pay certain legacies out of said estate,” gave only a life estate to the son a'nd grandson.

The first clause of a will after giving the testator’s wife a life estate in his farm, proceeded thus: “after her death I give to my grand children and to their heirs forever, my said farm, as follows, to wit, to the children of my step daughter, M., lot No. 1; to the children of my daughter S., lot No. 3and then providing for the children of three other daughters in the same way; the last clause was in these words : “ It is my further will, that in case of the death of any…

In this case, the Supreme Court held as follows: “ A devise of lands, (before the R. Stat.,) where there are no words of perpetuity, gives only a life estate; and a fee . will not be implied from a direction to the devisee to pay the debts of the testator, where such a direction is not made a condition to the devise, or declared a personal charge upon the devisee.

Ejectment. In a devise of real estate to “ M. for life, and from and after her death to her three daughters by name, “ or to the survivors or survivor of them, their heirs, &c., forever,” &c. (See… Held: that the remainders to the children of Mi, were not vested, but contingent, as they went to the survivors; and who this might be was uncertain.

The appellants filed their bill of discovery, in July, 1817; against the respondents, stating in substance that they, with; out interest and for accommodation of Dow and Menzies, endorsed for them their note for $4,000 in blank; that the note passed to the defendant Mancius, as his property; that they have a good and perfect defence to the note, and that the other defendant Brown, is a material witness for them, and had not when the suit was brought, and has not now any…

A bill was filed in this case by the wife for a divorce a vinculo matrimonii, on the ground of the adultery of the husband.

Suit by Catherine Cummings, widow of James Cummings, to recover her dower in certain lots in the city of New York, conveyed to her husband in 1796, and by him mortgaged to James Foster in June, 1802. Held: that the widow ivas entitled to dower.

In this case the Supreme Court held, adhering to the ancient common law rule of evidence, that the mere loss of an instrument by the agent of a party, without destruction… Held: adhering to the ancient common law rule of evidence, that the mere loss of an instrument by the agent of a party, without destruction proved, did not authorize the admission of parol evidence of the contents; (the agent was called to prove the loss and contents of a power of attorney to himself.)

The-Court of Errors in this case reversed the decision of the Supreme Court, upon the question of the admissibility of certain evidence as to the sense of the parties in regard to the legal effect of a patent of lands, which that court held inadmissible.

<p>Ejectment for certain premises in the city of New York. The plaintiffs claimed as heirs at law, and grantees of Mrs. Osgood, who conveyed the property to her daughter Martha Osgood, who afterwards intermarried with Edmund C. Genet, one of the lessors of the plaintiffs and died leaving issue who joined in the demise. The defendant claimed title under a sheriff’s deed given to a purchaser, at the sale of the property under judgment against the heirs and devisees of Mrs. Osgood, for a debt due by him in her lifetime to the Manhattan Bank. (See Osgood v. Manhattan Company, 15 J. R. 167, ante, where the judgment .under which ihe sale took place was reversed, but several years after the sale of the premises.)</p> <p>On the trial of the cause, the defendant offered as evidence to prove the fact that the validity of the deed of Mrs. Osgood to Martha Osgood, then Mrs. G., had been passed upon by the jury on the trial of the case of the Manhattan Company v. Osgood, the record of the verdict and judgment in that case, but they were not set up by plea as an estoppel. The verdict and judgment thus offered were rendered against the lessor of the plaintiff, Genet and his wife and others, in a suit against them as heirs and devisees of Mrs. Osgood, in which*"súit, they pleaded riens per descent, and on the trial of "that issyie, the jury found a verdict against the lessor of 4he plaintiff apd others, defendants in that suit, and which judgment was subsequently reversed by the Court of Errors.</p>

<p> Evidence j Subscribing Witness. </p>

The plaintiffs in error brought an action of trover for three promissory notes, drawn by them and made payable to the order of Manice, Phelps, and Co., of whom Manice the defendant was one. The declaration also contained counts, alleging that the notes were procured by fraud and false pretences, and that the plaintiffs had been obliged to pay them.

This was an action of debt upon a recognizance entered into by the defendant Duffy, as surety for one Daly, who was summarily convicted before a magistrate, under the statute relative to disorderly… Held: that in an action on such a recognizance, the sureties may defeat a recovery by pleading and proving, notwithstanding the conviction of the principal, that the woman alleged to have been abandoned or left unprovided for by him, was not in fact his wife.

Assumpsit by Wakeman and others, plaintiffs below, against Bailey for goods sold and delivered, &c. The facts were, as far as material, as follows: Vaill, one of the partners of the plaintiff below, in his life time, being in the country, purchased from the defendant Bailey, a sight draft on New York, which Bailey endorsed to the firm.

In this case, the action was for a breach of the covenant of seisin, and the Supreme Court held, 1. that the plaintiff is entitled to… Held: that the plaintiff is entitled to recover, if he shows an eviction by due process of law, from any portion of the premises embraced within the courses and distances actually run, and the monuments actually established in a survey made previous to the execution of the deed, in reference to the premises conveyed; although the land from…

Bill by next of kin against the administrators of their intestate,' and one of the debtors to his estate, who had compromised his debt with two of the administrators, without the… Held: that the release by the two without the concurrence of the third administrator, was good, and that his dissent was no objection to its validity; that executors and administrators stand on the same groumj ; their liabilities and responsibilities, and their rights and interests are the same.

' Appeal from Chancery by defendants below. Held: that the sale and assignment by one executor alone was unauthorized, and that the assignee acquired no title under the assignment; and that he was only entitled to be protected in equity, so far as the purchase money paid by him was actually applied to the purposes of the trust; or was afterward recovered out of the securites which…

Abraham, the defendant below, left England in July, 1828, with 24 cases of paintings, merchandize, &c., and on arriving at New York, the goods were deposited in the public store, under charge of the defendant Thompson, as collector of the port. Shortly after Abraham left England, a commission of bankruptcy was sued out against him, and he was duly declared a bankrupt. On the 8th of August, 1828, Johnston, one of the complainants, was made provisional assignee.

<p>Franchise; Toll; Quo Warranto ; Pleading; Verdict.</p>

About the beginning ‘of October, 1800, Ingraham the bankrupt became im solvent, and expressed his inability to pay his notes, which were protested for non payment. After his public declaration of his inability, he in October, November and December, 1800, made several assignments to individual creditors of lands, effects, and debts, and in particular he conveyed to the appellant, Phoenix, who was his father in law, lands, debts, and promissory notes, to a considerable amount.

The plaintiff below, Roberts, filed a bill to set aside deeds and .mortgages, &c., under which Anderson and another claimed the premises in question in the suit. The facts material to the understanding of the legal points presented, were as follows: one Griffith was seised of the premises, and made a fraudulent conveyance of them to Sarah Johnson, who on the 28th of March, 1808, mortgaged them to D. Stansbury, to secure a debt of $330 which she owed him.

Ejectment by a purchaser under execution against Seward, defendant below. The facts of the case were as follows i Seward, the father, held the lands as owner in fee, at the time of the deed to his son, the defendant below. He had previously guarantied the payment of a certain judgment against S., who himself had lands bound by the judgment, which at a fair valuation, might well be thought sufficient to pay the judgment.

Bill by judgment creditor to set aside a conveyance as fraudulent by one of two partners (sons to appellant) of his separate real estate to his father, in payment of a partnership debt. Sturtevant the plaintiff, had recovered a verdict against J. Waterbury, one of the partners, for $5,000 on the 9th of October, 1828, on which judgment could not be entered up until the 18th of October.

In this case the presiding judge, on the trial before the jury, had ruled that the mortgage being unaccompanied by an immediate delivery, and not followed by an actual and continued change of possession of the property, and no reason sufficient in the lato being shown for want of possession by the mortgagee; the mortgage was fraudulent, and refused to submit the question of fraudulent intent as a question of fact to the jury.

<p>Replevin. The plaintiff’s title was by a sale to him of the goods in question by the assignees of one Norton. After the sale, the plaintiff made Norton his agent or clerk, and the latter took charge of the goods in thair capacity, as the plaintiff alleged, to sell, &c. They remained at the same store that Norton occupied. The defence was that the whole transaction was fraudulent as against creditors, one of whom had directed the defendant to levy on them in virtue of a fi. fa. Evidence was given to establish the defence; and on the part of the plaintiff, to prove the bonafides of the sale, and the possession of the plaintiffs, and to show that the assignees, before the sale to him, had had the exclusive control of the goods after the assignment. The plaintiffs proposed to ask one of the assignees this question: “ So far as you are concerned was there any fraud in the whole transaction ?” To which the defendant’s counsel objected, and the Circuit Judge sustained the objection. Exception.</p> <p>The judge charged the jury that the question of fraudulent intent was one of fact for them, and read to them the statute on the subject: That the first fact to be inquired into was whether there had been immediate delivery, and actual and continued change of possession, &c. If there had, they must find for plaintiff; if otherwise, whether there was any good reason shown, which they could approve, for the want of them. If there were, then the verdict must be for the plaintiff. If not, the law presumed fraud. But the plaintiff might rebut this presumption by showing that the assignment was made in good faith and without any intent to defraud creditors. If there was no change, it was for the plaintiff to explain. If he had done so satisfactorily, then they should find for him; otherwise for the defendant.</p> <p>The plaintiff’s counsel excepted to this charge, and requested the judge to charge as follows: 1. That if the jury believed the sale was made in good faith, and without any intent to defraud Norton’s creditors, it was valid. 2. If they believed that the assigne'es had possession until the sale to plaintiff, then the employment by him of Norton as his agent or clerk, did not render the sale void. 3. That if the plaintiff actually and bona fide employed N. as his clerk to sell the same, this would not render the sale void. The judge refused .to charge, plaintiff excepted. Verdict for defendant.</p> <p>The Supreme Court on the motion for a new trial, held the ruling of the judge correct as to the question offered to be put to the assignee; and that his charge was also correct jn all particulars as givenand that he was not bound to charge on either of the points presented to him by the plaintiff’s counsel. See opinion of Co wen, J., 1 Hill, p 350-351.</p> <p>On writ of error t d</p>

<p>The judgment of the Suprime.Courtin this case, though in form reversed, was substantially affirmed. The action was case for a false representation as to the credit of a third party and the declaration contained several counts, some of which were defective. A general verdict having been taken for the plaintiff, the defendant moved in arrest of judgment for the insufficiency of the declaration in several counts; which motion the Supreme Court denied.</p>

This was a bill filed by Riggs and others, assignees of Robert Murray, a bankrupt under the United States bankrupt act, by virtue of a separate commission of bankruptcy against him, issued on the 15th of June, 1801, under which his property had been assigned to the plaintiffs on the 2d of July, 1801.

Cairnes, a merchant possessing considerable property and being largely indebted became insolvent, in March, 1823. On the 25th of that month, on the 7th and 18th of April, and on the 29th of July in the same year, he executed to Sedgwick and Lord, certain instruments, by which he conveyed to them all his property in trust. The several trusts were expressed in those instruments; the creditors were thereby ranked in classes, and were to be paid in a certain order of priority.

<p>The appellant being seised of 250 acres of land on the east side of Saghquate creek in Whitestown, together with half the soil under water, and the respondent White, senior, the father, being seised of 300 acres on the west side, with .the other half of the bed of the creek; they entered into a verbal agreement, in the year 1787, to divert, on their joint account for the use of mills to be erected, the water of the stream to such spot on the land of either, as should in the opinion of one Beardsley, be most proper for the site of a mill. The latter fixed upon a spot on the land of Wetmore. Wetmore, White senior, and Beardsley, then, 13th of May, 1788, executed a written agreement to build a grist mill on Wetmore’s land, a few rods north of his house; he and White to “ own” each one fourth of the mill, in consideration of furnishing all materials, <fcc., and erecting the dam to turn the water of the creek; Beardsley to own the other half on doing the carpenter’s work. &c. Upon these terms, the mill and dam being completed in 1788, it was verbally agreed between the same parties, to build adjoining to the grist mill a saw mill, to be supplied with water in the same manner, and to be “owned” in equal proportions by the three. This also being carried into effect, the mills were used in the same manner for about three years ; when, being very much out of repair, Beardsley, in 1791, transferred his interest in them for $600 by, release to the appellant, who shortly after bought the interest of White, senior, for $187, and paid the money, but received no conveyance of it, nor was anything said of the right to the water of the creek.</p> <p>The appellant repaired the grist mill and entirely rebuilt the saw mill and quietly enjoyed both, for the space of one year, when they were accidentally burnt down.</p> <p>The appellant then, at great expense, rebuilt them and continued in the enjoyment of the mills and of the use of the water of the creek, until August, 1797, when the respondent Hugh White, the father, threatened that he would cut down the dam and deprive the appellant of the use of the water, unless he would become a Presbyterian, and join the congregation under the charge of the Rev. Bethuel Dodd, and that he would also build a dam and turn one half of the water of the creek over a meadow contiguous to the Saghquate creek, and adjoining to the dam erected for the use of the mills; which meadow on the 25th of April, 1794, the father had, in consideration of blood and affection, conveyed, with a moiety of the waters of the creek, to his son Hugh White, junior, the other respondent.</p> <p>In September and October, 1797, the dam across the creek, was, to the great injury of the mills, three times cut through' aqd the water permitted to escape.</p> <p>On the 5th of December, 1797, the appellant filed a bill in Chancery, stating these circumstances, praying an injunction to restrain the respondents from molesting or disturbing feim in the enjoyment of the mills, mill-dam, and the water of the creek, that he might be quieted in his possession of them, and for such further and other relief as the court might please to direct.</p> <p>The answer of the respondents admitted the parol agreement to erect the mills and dam; the written agreement, the sale by White, senior, “of his shares in the mills; the payment of the consideration money; that the mills were burnt down and rebuilt, &c., but denied that the right or privilege in the waters of the creek had ever been parted with to the appellant, or that he had paid any consideration for it; or, that he had any right to appropriate the waters of the creek to the use of the mills; or to maintain the dam for the purpose of turning the stream from its usual course. That soon after the destruction of the mills, White the father explained, as he believed, in a conversation with the appellant, the nature of the contract for the sale of the mills and then utterly denied the appellant’s right to the water; that the appellant had never requested a conveyance of the right of water, and had from a consciousness of his having none, erected a temporary dam at his own expense, below that for the use of the mills, in order to turn the water into the respondent’s meadow, the want of which, in consequence of the upper dam, actually injured the crop of hay, and could not be compensated for, by even $1,500. They also insisted on the statute of frauds.</p>

<p>The plaintiff in error, having had a complaint preferred against him by one Bacon, charging him, then a master, but not a solicitor, of the Court of Chancery, with having exacted from him 18 dollars, under the false pretence of being a solicitor; and subjecting him to great delay and trouble in a suit in that court; was examined, ex parte, and an attachment issued against him. This order was afterwards opened on his application, so as to allow him to make his defence. When that was gone into, it was not denied that he had acted as solicitor, and received the money, but he alleged that he had filed the bill in the name of Peter W. Yates, a solicitor, and with his consent. This the latter denied. The result was that he was committed by the Chancellor for mal-practice and contempt. He then obtained a writ of habeas corpus from Mr. Justice Spencer, in vacation; and upon hearing before him, that judge declared the conviction illegal and void, and ordered his discharge. He was accordingly discharged, but the Court of Chancery reclaimed him, as its prisoner on the attachment, and he was accordingly remanded to the same custody. The prisoner then brought a writ of habeas corpus to the Supreme Court, where it was urged that he was entitled to his discharge on three grounds; viz.:</p> <p>1. “ That the matter laid to his charge was an offence prohibited by statute, and therefore not cognizable in the Court of Chancery, which has no criminal jurisdiction ; nor is it punishable anywhere, by an attachment for a contempt.”</p> <p>2. “ That the conviction was founded upon evidence which the law does not hold sufficient to warrant a conviction, even for a contempt.”</p> <p>3. “ That the imprisonment being in execution and conviction, should be definite and terminate either by the efflux of time, or on the doing some act by the prisoner, and cannot be indefinite and uncertain, as “ until the further order” of the authority inflicting it.” p. 476.</p>

<p>This was an action of debt, brought against the defendant, Chancellor of the state, to recover the penalty of $1,250, under the 5th section of the habeas corpus act, which declares “ that no person who shall be set at large upon any habeas corpus, shall be again imprisoned for the same offence, unless by the legal order or process of the court, wherein he is bound by recognizance to appear, or other court having jurisdiction of the cause; and that if any person shall knowingly, contrary to this act, re-commit or imprison, or cause to be re-committed or imprisoned, for the same offence, any person so set at large, or shall knowingly aid or assist therein, he shall forfeit to .the party aggrieved, $1,250, any colorable pretence or variation in the warrant of commitment, notwithstanding.” 1 R. L. of 1813, p. 355.</p> <p>The action was, of course, founded upon the acts of the defendant, Lansing, as Chancellor, set forth in the preceding case just given, and it is hardly necessary to the understanding of the issues made, to do more than refer to that case without more particularly stating the pleadings. The plaintiff’s declaration set them forth, and the defendant justified the acts as done in his judicial capacity as Chancellor; to which there was a general demurrer and joinder.</p> <p>The argument of the cause was merely pro forma, in the Supreme Court; though Kent, Ch. J., urged the argument of the point, as one “ of very great importance, which was not argued or decided in the case of Mr. Yates, on the habeas corpus ; viz., whether the Chancellor while acting officially and judicially, is responsible, in this action, for what he has done as Chancellor?” Mr. Emmet, however, of counsel for the plaintiff, declined to argue it, intimating that a writ of error was to be brought. The court, very properly, took time to consider it, and held that the action would not lie.</p>

<p>The bill in this case, was filed by the trustees of the Methodist Episcopal Church, as legatees and devisees of one-third of the estate of Mary Jaques, deceased, late the wife of the defendant, J. D. Jaques. The bill stated that Mary Jaques, at the time of her intermarriage with the defendant, J. D. Jaques, was possessed of a large real and personal estate, &c.; that in contemplation of her marriage with him, a deed of marriage settlement dated 25th of September, 1805, was made and entered into between herself, of the first part, J. D. Jaques of the second part, and H. Cruger of the third part, by which the said Mary conveyed all her estate real and personal, to the defendant, Cruger, to the use of the said Mary, until the said marriage should take place •, and from and after the marriage, to the use of such persons and for such estates as she, with the concurrence of her intended husband, should, by deed attested by two witnesses, or by her last will and testament, limit and appoint; and until such appointment, to the use of H. Cruger and his heirs during the life of the said Mary, to enable her to take the profits thereof, free from the control of her husband, and at her absolute disposal; and that immediately after the execution of the deed, the marriage took place between the parties. The bill then charged that the husband had possessed himself of her personal estate, and of the rents and profits of her real estate, &c. It also set forth that the wife, intending to execute the power reserved to her by the deed of settlement, did, with the concurrence of her husband, by deed dated the 12th of September, convey all her real estates to the defendant, Robert Jaques, in fee, upon trust.; that after her decease he should sell the same, and should dispose of the proceeds after paying expenses, as follows : one-third to the plaintiffs, trustees of the Methodist Episcopal church ; one-third to the plaintiffs, wife and children of T. B., in equal shares ; and one-third to the husband. That after the execution of the deed, she, on the 25th of Sept. 1812, made her last will and testament, by which she gave several specific legacies to the plaintiffs, <fcc.; and all the residue of her estate she gave one-third to the plaintiffs, the trustees of the Methodist Episcopal church; one-third to the plaintiffs, children of T. B., &c., and one-third to her husband, and appointed P. H., T. 6., and John D. Jaques, her husband, executors. The bill prayed an account of discovery of what moneys or securities belonging to Mary Jaques, at the time of her marriage, had come to the hands of the defendant J. D. Jaques, and how he had disposed of the same; also of the rents and profits of the real estate received by him; and that the title deeds might be brought into court; that a receiver be appointed, and for general relief, &c.</p>

<p> Liability of Subscriber upon Subscription to Stock ; Amending Postea after General Verdict. </p>

<p>Ejectment. The Supreme Court held in this case that the Indian tribes of the state of New York were citizens, and might acquire real estate by purchase or descent, and alien and transmit it as natural born citizens, subject to legislative restrictions.</p> <p>That therefore, the only son of an Indian who was a grantee of lands from the state for revolutionary services, might make a valid deed of them, there then being no law to restrain individual Indians from a disposition of their lands, acquired by an Indian, as an individual, distinct from his tribe, the conveyance having been made anterior to the act of 4 April, 1801, prohibiting such conveyances.</p>

The indictment for a conspiracy was-, “ that the defendants intending unlawfully, by indirect means, to cheat and defraud a certain incorporated company, (naming it,) and divers others unknown, of their effects, did fraudulently and unlawfully conspire together, injuriously and unjustly, by wrongful and indirect means, to cheat and defraud the company and unknown persons of their effects; and that in execution thereof, they did by certain undue, indirect, and unlawful means,…

<p>Indictment under the statute for obtaining goods by false pretences. Five different false pretences were set out in the indictment, as the representations by means of which he obtained the goods ; each of which was negatived in the indictment. On the trial, it appeared from the evidence of one of the prosecutors, from whom the goods were obtained, that he had known the accused for about 18 months, and had sold him goods at three different times to the amount of $1,500, previous to the purchase now in question, for which he had paid; that the last credit for $800 fell due and was punctually paid about three weeks before the 9th of November, 1833, when this sale took place. On that day Haynes selected the goods set forth in the ‘indictment, which were packed in a box and sent on board the steamboat for Providence by his order, addressed to him on the outside, “ Charles Haynes, Boston and a receipt taken therefor from the agent or clerk, and which was brought back to the prosecutor, expressing that the box described in the receipt, was “ to be transported in the said boat to Providence, and there to be delivered to Boston waggoners, or order, upon application on board of the said boat.” The mate of the steamboat testified that when the boat arrives at Providence, they immediately deliver the goods to a Boston waggoner, who takes them to Boston, and there distributes them according to the marks and addresses; they do not require the receipt or bill of lading to be surrendered before the delivery of the goods; they are delivered without asking for or requiring the receipt. The prosecutor however further testified that after the goods were sent on board of the steamboat, and on the same day# he learnt that Haynes had had a note protested, and determined to send the receipt to the steamboat and get the goods back. Before doing so, however, Haynes came into the store of the firm, and the prosecutor told him they could n,ot deliver the goods, as they had heard that he had a note protested. Haynes denied this, and'in answer to inquiries, said "" that he was worth from nine to ten thousand dollars; that he was not embarrassed, and was able to pay all that he owed ; that he had no endorser, and added that he had never endorsed but one note in his lifetime, and that was more than a year ago. The prosecutor then observed that if these representations were true, and H. would on his return, immediately send him a statement of his affairs, he would deliver the goods; and accordingly handed to him the receipt and invoice, and took his note therefor, amounting to $657. The above were the representations set out and negatived in the indictment as the false pretences. Evidence was given to show that Haynes in December, after the purchase, had said to one of his creditors, “ that if he did know he ioas insolvent, when he made the purchase, he was not bound to tell it; and admitted that he had been insolvent for one or two years, but for the last year had been growing much worse. His admissions to others that be was insolvent at the time, were also fully proved. The jury found the prisoner guilty, and the charge of the recorder having been excepted to, a bill of exceptions was tendered and signed ; and the recorder having certified that there was so much doubt in the case as to render it expedient to take the judgment of the Supreme Court thereon, the District Attorney, pursuant to the provisions of the 2 R S., 736, sued a certiorari, removing it to that court accordingly.</p>

The Supreme Court held upon a bill of exceptions, brought up on certiorari to obtain the advice of that court; that an indictment for murder… Held: that the fact that the judge in his charge to the jury in a criminal case, after alluding to the influence •of proof of good character in a doubtful case, called the attention of the jury to the want of such proof in the case before them, is no cause for granting a new trial, where in other respects the charge is unexceptionable.

Where an infant, under 18 years of age, and not liable to be enrolled in the militia, agreed, with the consent of his father, to go as a substitute for another, (who was drafted into actual service,)… Held: that such contract was not binding on the infant.

The relator in this case, living separate from his wife, under a “ voluntary but not final separation,” as expressed in the articles of… Held: that “the adjudication was no bar to the issuing a new hubeus corpus, and to the investigation of new matters, arising since the prior adjudication ; and that the return should set forth that no new stale of fads had arisen between the parlies in relation to the child.” The return having been amended accordingly, the judge after…

The Supreme Court held in this case, where the plaintiff, a subject of a belligerent power had emigrated to the United States, flagrante bello, and had become a naturalized citizen of this country, that a warranty of neutral ownership of the property, was not sustained by such letters of naturalization; at all events it was the duty of the assured under such circumstances to disclose to the underwriter the period of his emigration ; his being, at that time, a subject of a…

<p>' This was an action on a policy of insurance, On goods from New York to Vera Cruz. The policy contained the-following clause: “That the property be warranted by the assured, free from any charge, damage, or loss, which may arise in consequence of a seizure or detention of the goods hereby insured, for or on account of any illicit or prohibited trade, or any trade in articles contraband of war.” From the special verdict in the case, it appeared that the plaintiffs had shipped, besides the property insured, six blocks of tin, and 7 8 boxes of tin plates; that the latter were condemned as contraband of war by the British Court of admiralty, and the goods insured weie condemned as property oí British subjects, trading with an enemy to their mother country, Great Britain and Spain being then at war: but that the defendant knew when he insured the goods, that the plaintiffs were British subjects, and that the tin was on board. On this special verdict,</p> <p>The Supreme Court gave judgment for "the defendant, .on the ground of the illicit trade, and that the above warranty of the assured, extended to a loss by “seizure and detention’’ OH account of a seizure and detention, under pretext of illicit trade or contraband of war.</p> <p>The Court of Errors, however, held the contrary.</p> <p>Three questions were made in that court.</p> <p>1. Was the trade, in relation to the character of the plaintiffs, as subjects of Great Britain, an illicit trade?</p> <p>2. Were the articles of tin, contraband of war ?</p> <p>3., Did the warranty of the assured extend in judgment of hiw to a loss by seizure or detention, merely because illicit or prohibited trade, or trade in contraband of war was alleged, when in fact the trade was not such?</p>

In these two cases, the same point was presented to the court, viz., whether on a capture, and abandonment in consequence, to the underwriter, the fact of restoration of the property insured, though unknown at the time of abandonment takes away the right of the insured to abandon and claim for a total loss.

Action on a policy of insurance. The question arose whether the insured, owner of a ship on which there had been taken up on bottomry more than her value, had an insurable interest in her.

In.error on a judgment of the Supreme Court, in an action on a policy of insurance on the freight of “ the good American ship called the Astrea, at and from New York to Corunna,” the freight valued at $10,000, at a premium of fifteen per cent.

<p> Barratry of Master ; Disclosure of Circumstances; Materiality of to the Risks Taken. </p>

Action on a policy of insurance effected on goods out, and proceeds thereof home. The identical goods composing the outward cargo, were brought back on the return voyage and lost. On the trial of the cause, the plaintiff offered evidence to show by parol proof that by the known usage of trade, or by use and practice, as between assurers and assured, the word 11 proceeds,” inserted in a policy, is understood to include the identical goods, if brought back on the return voyage.

<p>Th is was an action on a policy of insurance for $14,000 on the ship Mary Ann, valued at $14,000. The vessel was stranded on the coast of Scotland, and injured to an extent requiring $7,221, to repair her damage. She was subsequently got off, taken into Greenock, and there sold, on account of whom it might concern. The plaintiff gave in evidence the sale of the vessel at Greenock; the purchase by the firm of A. Campbell and Co.; and her reparation at an expense exceeding half her value. The plaintiffs went for a total technical loss.</p> <p>The defendant paid into court, $5,100, contending that they were not liable for a total technical loss ; and that as the amount of repairs was only $7,221, and they were entitled to a deduction of oné-third, new for old, they were chargeable with $4,884 only; which was less than one half of the value of the vessel, as valued in the policy.</p> <p>The Supreme Court held, upon the authority of the case of Dupuy v. The United Ins. Co. 3 J. C. 182, that where the repairs are equal to half the value and more, the insured have a right to abandon without reference to the deduction of one-third new for old; and that the deduction applied only to cases of partial loss.</p>

This was an action on a policy of insurance originally brought by Ogden and Macomb, in the New York Superior Court, against the defendants, as underwriters on three-fourths of a schooner, in the names of Ogden and Macomb, as the agents of the owner, loss payable to them. The policy was for six months from, the 17th of November, 1829; sum insured, $1,800.

<p> Fire Insurance. Commencement of Risk. </p>

The plaintiff in error, Robert, had procured of the defendants in error, insurance against loss by fire upon buildings owned by him, and had assigned the three policies with the assent of the insurers to secure a mortgage to one Bolton, upon the property insured. A loss having occurred by fire, a suit was brought on the policies by the assignee, in the name of Robert the assured, and judgment obtained against the company.

<p>Rate of Interest on /Sales made in Foreign Countries, and Consignments made to Factors in New York ; Lex Loci Contractus; How far Factor or Agent of Consignee is Responsible for Acts of his own Government, e. g. an Embargo.</p>

Upon the original motion for a mandamus on behalf of the redeeming creditor, the Supreme Court held at the special term, Nov. 1831, that he was entitled to a mandamus to the sheriff to deliver a deed. Mr. Justice Sutherland, presiding, decided as follows: 1.

<p>Error from the Supreme Court. Trespass originally for the taking of a horse. The question in the ease was whether the horse belonged to Hewitt or one Lane. When the plaintiff rested, no evidence having been given connecting Noyes with the taking, it was moved on that ground, that he be discharged from the suit, he being the plaintiff in the execution under which the property had been taken. The justice accordingly discharged him, instead of directing the jury to find a verdict in his favor. Noyes was then sworn as a witness, and from the evidence given subsequent to his discharge, it appears that the horse was sold under the execution and that he purchased him, and that the amount was applied on the execution. The case was submitted to the jury who found a verdict of “no cause of action,” on which the justice entered judgment against the plaintiff for the costs of suit. On certiorari to Orleans Common Pleas, the court reversed the judgment of the justice and gave judgment for costs against both Noyes and Pettingell the other defendant, who brought writ of error to the Supreme Court, which affirmed the judgment of the Common Pleas in the following</p> <p>pithy opinion.</p>

<p> Landlord and Tenant; Eviction ; Nuisance ; Rent. </p>

In this case the Supreme Court held that where the property of a boarder at a boarding-house, was not in the possession of such lodger or boarder, but in the possession and actual use of the tenant of the boarding-house, by the owner’s permission, and without the consent of the landlord, the property was not exempt from distress.

The plaintiff being the assignee of a lease, and bound by covenant to pay the rents, &c., to the lessor, assigned the lease to the defendant by writing, expressing a consideration of three thousand dollars; whereupon the defendant executed a covenant to the plaintiff to pay the rents, &c., and at the same time gave the plaintiff two notes, under seal, one for $2,000, and the other for $1,000.

The lease in this case contained a covenant, that “ at the expiration of the term, the buildings should be appraised, and that the lessors should pay the tenant the appraised value, or grant a new lease for twenty years, upon such terms as he might think proper, and as might be approved by the lessee; and in case the lessee should not approve of the terms offered, that he should have the right to remove the buildings within three months after the expiration of the lease.”…

Ellis, the testator, directed by will made in 1811, in which year he died, that immediately after his decease, the sum of $20,000 should be placed at interest in the name of his infant daughter, E.… Held: that if the terms of the will conferred only a life interest in the daughter, the subsequent limitation over, being upon an indefinite failure of issue, was too remote, and therefore void, as an executory devise.”

This was an action for a libel contained in a petition to the council of appointment, praying the removal of the plaintiff from an office he held under the council, and preferring certain charges, in words admitted to be actionable in themselves, and false.

The libel complained of in this case charged Turrill, the plaintiff below, who was first judge of the county of Oswego, and as mentioned in the libellous publication, addressed “ to the public,” then “ a candidate for the office of member of Congress” with having put his official signature as first judge to a statement in writing in the form of an affidavit, stating under his hand that the person who signed it was duly sworn, when, in truth, the said person was not sworn at…

This was an action of trover by B. and R. against Brooks, in the New York Superior Court, for a quantity of rollers for printing calicoes. In September, 1833, Brooks at the request of B. and R., sent an order to his correspondent at Manchester, to have a quantity of rollers prepared and sent to him with all possible dispatch, and on the 15th of October, a similar order. , The first quantity was accordingly sent and arrived in New York in February, 1834.

<p>The act authorizing the loan of certain monies belonging to the United States, deposited with the state of New York, passed April 4, 1837, authorizes the commissioners to be appointed under it to advertise and sell premises mortgaged to them, in certain cases, and after certain publications of the notice of sale, &c., at the day and place of sale.</p> <p>The sale in this case was advertised according to the act, for the 1st Tuesday of February, ’43, and the premises were struck off to the highest bidder, who was required forthwith to comply with the terms of sale by paying to the commissioners then present, the 14 per cent, according to the conditions of sale. He failing to do so, the commissioners on the same day resold the premises, under the notice of sale already advertised.</p>

This case having been the leading decision in the reform said to have been effected, by the Court of Errors in the practice of the Supreme Court with respect to issuing the writ of mandamus to correct the errors of inferior courts, we shall give a brief view of the jurisdiction thus exercised before the question came before the Court of Errors in the above cause.

This was a motion for a mandamus to the judges of the Superior Court of the city of New York, to vacate a rule granting a new trial in an action brought in that court in favor of E. G. Oelricks against the Phcenix Bank. The plaintiff sought to recover the amount of a draft for $2500, deposited with the bank for collection, on the ground of neglect in transmitting the bill to Baltimore, on which place it was drawn.

This was a motion for a mandamus to the Superior Court commanding them to vacate a rule setting a report of referees; or to render judgment, so that the relator might bring a writ of error.

The original action in the Common Pleas, in this case was trover, for the conversion of 14 sato logs. brought by Esther Sanford v. Savage, the relator. The title of the plaintiff to the premises was not controverted on the trial: but she proved that the land on which they were cut, had been assigned to her by her children by parol, as her dower. A verdict was found in her favor for $4 50, damages, and six cents costs.

By the return to the alternative writ of mandamus in this case, it appeared that one Griffin, had recovered a judgment against Doughty, the relator, before a justice of the peace, on the twelfth, day of March, 1839, from which D. appealed to the C. P. When the cause came on for trial in the C. P., Griffin objected that the court had no jurisdiction, the affidavit and appeal bond reciting the judgment as rendered on the 11th of March, whereas the return of the justice was of…

“ Pursuant to a peremptory mandamus from this court, the justices at the Somersetshire Epiphany Sessions, heard the appeal of James Tucker, against the decision of the Special Petty Sessions for the hundred of Winterstoke, in the county of Somerset, dismissing his application for relief under the 3 Geo.

In this case, the Chancellor (Kent) held that a defective conveyance by a person seised in fee at the time is good, so as to bind the lands conveyed in the hands of the grantor and his heirs ; and also good against a subsequent purchaser, with notice of the prior defective deed or conveyance. iSemb. That possession under such a deed will be constructive notice.

This was an appeal from a decision of Chancellor Lansing, permitting Bennett, the respondent, to redeem lands sold by Bergen, the appellant, at auction under a power of sale contained in the mortgage. The mortgage had been purchased by him of the original mortgagee, and he became the purchaser of the property at the sale. The respondent was the son of the mortgagor, who died in 1776, leaving the respondent, then only fifteen years of age, his oldest son and heir at law.

The question arose in this case, whether, after the passage of the general registry act of mortgages, a senior mortgagee might tack a junior mortgage to his prior one as against an intermediate incumbrancer by mortgage.

<p>' Mortgagor and Mortgagee. Fraudulent Conveyance.</p>

<p>This was a bill filed by the representatives and heirs of James Duane, as a sole surviving trustee, under an assignment of Shaw the mortgagor and his two copartners in 1766, in trust for their partnership creditors. The bill was against the representatives, heirs and devisees of Grant, who held a mortgage on the premises in question before the assignment of Shaw and his partners to Duane and his co-trustees : and prayed for a decree that the plaintiffs might have leave to redeem the mortgage and that defepdants account for the proceeds of the land which they had sold &c. The heirs of Shaw were not parties to the bill.</p>

This was a bill brought by Dey, trustee and assignee of W. and W. to set aside a conveyance which the assignors had previously executed to Dunham the appellant. The deed was recorded and was accompanied by a defeasance which was not recorded at the time of the assignment to Dey.

<p>Point raised in Court of Errors not made in Court below ; Bill to Redeem Mortgage ; Bona fide Purchaser, without notice and for valuable co7isideration, no Ground of Relief in Equity, though a good Defence ; Mortgage for $3000 registered by Mistake of County Clerk for $300; Escrow.</p>

<p> Mortgage Debtor and Creditor. </p>

The facts in this case were as follows: The defendant, C. Johnson, gave a mortgage to J. 0. Held: that the whole estate legal and. equitable, vested in Wattles by his purcha. ses at the sheriff’s sale, and from Sabin ; and that by the merger of the equitable in the legal, the mortgage of Johnson was extinguished as a security in the hands of Wattles, and was not nor could be revived by the assignment to James the plaintiff.

In this case, where the mortgagor had delivered to the mortgagee personally, a sum of money due on the mortgage with an intention to… Held: that such a delivery of the money with an intention to.pay, operates as a payment, without a receipt or an endorsement on the mortgage, or collateral security; and the re-delivery of the money to the mortgagor by the mortgagee, should be construed as a loan on the personal security of the mortgagor, and the lien of the mortgage as to…

Ejectment. The defendants offered to prove by parol, and without showing any written defeasance, that the deed to the plaintiff was intended merely as a mortgage, and the judge admitted the evidence. Declarations of the plaintiff to that'effect were proved, and Moore the grantee, was examined as a witness, who proved that the deed was intended to secure the plaintiff against an endorsement made for his accommodation. Bill of exceptions. Verdict for defendants.

Ejectment. The action was brought by a purchaser at a sheriff’s sale of the mortgage premises sold under a judgment docketed three months after the mortgage. The mortgagee foreclosed the mortgage, (dated in May, 1827,) by a statute foreclosure, in 1830.

<p>The decision of the Chancellor (Lansing) in this case was reversed ; but it would seem by his opinion, (6 J. R. 527,) that his decree dismissing the appellant’s bill with costs was rather founded on the defect of proof, that any copartneiship property was put into the hands of the respondent to pay the debts of such copartnership, or the particular one mentioned in the' bill, than on any legal ground.</p>

Action below; assumpsit by Wells and Spring against Evans and partners on promissory note.

<p>In this case, the Supreme Court held, that where a suit was brought against three partners as drawers of a bill of exchange, the plaintiff was bound to establish the partnership as to a defendant, returned “ not found,” and that reputation alone was not sufficient to prove it.</p>

Action for a libel. In this case, before the hearing on the writ of error, a motion was made to the Court of Errors, (reported 4 J. R. 499,) to amend the record by sending the transcript down to the Supreme Court, where the record had been amended, since the writ of error was brought, by striking out or entering a nolle prosequi on. one count of the declaration.

<p> Pleading. When Defect is aided by Verdict. </p>

<p> Slander; Defective Count, and Damages assessed generally. </p>

<p>In an action by the Utica Insurance Company (incorporated) against the endorser of a promissory note, he pleaded “ That the plaintiffs contrary to the act, (restraining private banking,) subscribed to and became members of an association, institution or company, and became proprietors of a hank or fund for the purpose of issuing notes, receiving deposits, and making discounts, and transacting all- other business which incorporated banks may and do transact by-virtue of their respective acts of incorporation ; that for this purpose, they established an office or banking house, and issued notes, received deposits, and made discounts, as incorporated banks may, &c., and averred that the note in question was made for the purpose of being and was discounted at their office, they knowing the purpose for which it was made.” The plaintiffs replied the act constituting them a corporation, which authorized them to loan their surplus funds ; and alleged that they lent a part of their surplus funds on the security of the note, showing the particulars : without this, that the plaintiffs had subscribed to or became members of an association, &c., as set out in the plea—for the purpose in the plea set forth: concluding with a verification. ¡Special Demurrer, assigning for cause that the plaintiffs had not in their replication confessed or avoided, traversed or denied, that they illegally and wrongfully established an office or banking house, and issued notes, received deposites, &c., as stated in the plea.</p>

Assumpsit on promissory notes not negotiable. The notice of set-off stated that the defendant would give in evidence on the trial, that the notes on which the suit was brought were given for the consideration of the sale and conveyance of a certain piece of land, &c., and that when the notes were given, the plaintiff executed and delivered to the defendant a covenant that if there should be any outstanding judgments, which operated as a lien on the land conveyed, and the…

In this case the Supreme'Court held, that whenever the court can possibly intend that the merits have been fairly tried in justices’… Held: that whenever the court can possibly intend that the merits have been fairly tried in justices’ courts, they will not examine or test the pleadings by technical rules, as to the formality of pleading; but, if it clearly appear that the plaintiff below had no right to recover, the court will reverse the judgment, notwithstanding a…

Action of assumpsit on an award. On the main point in this case, to wit, whether the plea to the first count of the declaration, that the… Held: the plea to two other counts, 2d and 3d, which plea alleged that he assigned all, &c., as an insolvent debtor to an assignee, &c., after the making of the promises set forth in the declaration, was good, although the promises are laid in the declaration as of a day subsequent to the discharge; the day laid in the declaration not…

The plaintiff in error sued Pell in the New York Common Pleas, in covenant upon a sealed instrument, by which defendant guarantied the payment of rent to accrue from a third person. With this he joined the common money counts in assumpsit. Defendant pleaded non est factum to the first count, and non assumpsit to the others. The jury found both issues in favor of the plaintiff.

This was a suit on an official bond of Dorr, as treasurer of the County of Albany, with sureties for the faithful discharge of his duties as County Treasurer.

The Supreme Court held in this case, that if a tenant remain in the occupation of premises for several successive years under distinct demises from year to year, executed by the same landlord, the whole period will be regarded as one term, for the purpose of continuing the right of distress.

In replevin—the jury found for the plaintiff, but omitted to find costs or damages. Held: that the amendment of “ six cents costs ” was rightfully allowed by the Circuit Judge.

The case as stated, was as follows: “The property in question—was levied upon by virtue of a justice’s execution, and a third person became the receiptor to the officer, and left the horses with the defendant in the execution to pasture; subsequently, they were levied upon by another officer by virtue of a second justice’s judgment and execution, and taken away. The receiptor brought replevin in a Court of Common Pleas, and was non-suited. On writ of error,

H. Mactier was a commission merchant in N. Y., and died about the 10th of April, 1823. The complainant is a resident at Jacmel, Hayti. Held: “ that Frith had not consummated the sale to Mactier; and as survivor he was entitled to the nett proceeds of the brandy, so for as they can be traced or identified. The first offer to sell by Frith having been declined by Mactier, his subsequent assent to the proposal did not bind Frith unless he had also assented.

The respondent Hone, filed a bill before the Chancellor, against Furniss and against Duane, his assignee, to set aside the assignment, as fraudulent against him, and claiming the proceeds of certain goods bought by F. at auction, and assigned by him to Duane for the benefit of creditors.

The appellant Simson, plaintiff in the Court of Chancery, obtained a judgment in December, 1813, against Hart, the respondent, and one E. Hart, in the Mayor's Court of the city of New York, for $4,385, for an assault and battery) and the respondent Hart, in a cross suit, afterwards, at the same term, obtained a judgment against the appellant for $500 for an assault.

<p>This was an action against the plaintiff in error, as the maker of a promissory note, negotiable, which had been assigned after its maturity. The defendant below, on the trial of the cause, offered to show a set-off to the amount of the plaintiff’s demand on the note, of a demand due to the defendant, from the assignor, existing at the time of the transfer. The evidence being rejected, a verdict was taken on the second count, the plaintiff having abandoned the first count which was covered by a special plea; and assessed only contingent damages.</p>

Bill by Lyon & Brockway to set aside an assignment and release. Held: that the complainant was not entitled to relief in Chancery under these circumstances —that where parties have made agreements and arrangements with a full knowledge of the facts of their case, Chancery does not undertake to relieve them from their acts and deeds fairly and deliberately done, though under a mistake or ignorance of…

The point on which the decree of the Chancellor was reversed was as to the principle adopted by him, that the part owners of a ship stand on the footing (nice distinction ” the reporter calls it,) of tenants in common, and not as partners; and that therefore one owner having got into his possession or received the whole proceeds of a voyage, he has no right to retain them against his joint owner to reimburse or indemnify himself for what he has paid or advanced more than his…

<p>This was an action of assumpsit for the non delivery of. a quantity of tobacco, shipped on board a schooner lying in the port of Richmond, Va., in January, 1813, by the plaintiff’s agent. About the 27th of the same month, the vessel sailed for New York, and on the 2d of February, the master came to anchor in Hampton Roads, for the purpose of ascertaining whether he could safely proceed to sea; there being at that time a British squadron blockading the Chesapeake, through which the vessel -must necessarily pass. When he had ascertained the impossibility of getting to sea without being captured, and the danger of remaining in Hampton Roads, by the advice of Captain Stewart of the U. S. navy, commanding at that station, he put into Norfolk and there remained until about the 7th of March, when on account of the increase of the British squadron, it was deemed unsafe to remain at Norfolk, and he returned with the vessel to Richmond, where she arrived on the 15th of that month. She continued there until the 21st of September, when in consequence of a violent storm and freshet in the river, she was sunk at the wharf, without any fault or negligence of the defendants or their agents, and the tobacco in question was wholly spoiled and ruined. At the time the hill of lading was signed, it was not known at Richmond that the Chesapeake was blockaded, nor was it known by the master or the defendant; and infact the blockade did not then exist; but it continued without intermission, from the time the vessel attempted to sail on her voyage, until after she was lost. Qn the 16th of September, after her return to Richmond, the agent of the plaintiffs demanded the tobacco of the master for the purpose of forwarding it to New York by land, and he refused to deliver it, unless on being paid half-freight. Verdict for the plaintiffs for the invoice price of the tobacco¡ with interest, subject to the opinion of the court; on the motion for a new trial, Thompson, Ch. J., delivered the opinion of the court. He said :</p> <p>“ The only question in the case is, whether the master / was bound to comply with the demand, without receiving the half freight claimed.</p> <p>“ I know of no principle of law on which half freight could be claimed. The defendant had a right to demand full freight or none at all. But I think no freight could be claimed. Although the right to freight commences on the loading of the goods, it is a defeasible right, depending on the success of the voyage ; and in case no part of the iter is performed to any beneficial purpose, no freight is earned-(3 J. C. 97.) If the ship owner is determined to have his freight, he must forward the goods. It is upon the delivery of the cargo that the right to freight depends, unless such delivery is waived, and some new contract is made respecting it. If the ship owner will not or can not carry on the cargo, the freighter is entitled to receive his goods again without paying any freight. (Hunter v. Prinsep, 10 East. 393.) “ It is well settled that by the blockade of the port of discharge, a charter party is dissolved, and- all claim to freight under it gone. (Scott v. Libby and others, 2 J. R. 336.) “The effect of the blockade upon the bill of lading is very much the same as upon a charter party. “If an action of trover could have been sustained for the tobacco without paying the freight, it must follow as a matter of course that the defendants are responsible for the loss; because .they were in default in not delivering the tobacco when demanded.” Judgment for plaintiff. On writ of error brought,</p> <p>The Court of Errors held that the contract of affreightment was not dissolved by the hostile blockade of the port of departure; the performance of it is merely suspended; and the ship owner or master may detain the goods, until he can prosecute his voyage with safety, or the freighter may demand his goods on tendering the freight.</p>

This was an action of trover brought by the master of a ship engaged in foreign trade, against a party to whom he had delivered goods for safe-keeping, upon 'the freight for which he claimed a lien for the amount of advances and liabilities on account of the ship on the voyage then just terminated. The bailee without the master’s permission, delivered the goods by direction of the owner to the consignee, on his paying the freight to the owner.

The appellants filed their bill against the respondent for a specific performance of a contract to sell or lease in fee, a tract of wild land to them, when his title should be perfected by a partition of the premises.

The defendant in error brought an action of assumpsit in the Superior Court of the, city of New York, for the nondelivery of fifty tons of iron, purchased by him of the plaintiffs in error.

A case was agreed upon by the parties to this suit, in the Supreme Court; stating that the judgment on which an action of debt was brought in 1833, was rendered against the defendant Miller, in that… Held: that at common law, presumption of payment does not attach to a judgment, although there be no evidence of partial payments or of acknowledgments of indebtedness within twenty years.

In error. A jury having been called to assess damages on the laying out of a highway in Kings county, and having assessed the relator’s damages at $1,450, the board of supervisors was required to lay a tax upon the town of Brooklyn according to the requirements of the “act regulating highways and bridges in the counties of Suffolk, Queens, and Kings,” passed 23d February, 1830.

The bill in this case was filed by the complainant to be relieved from an assessment upon his property for the expense of opening Twelfth Street in the city of New York. The defendant Graham was formerly the owner of the lots, and in the deeds conveying them to the complainant Murray, reference was made to that street, not yet opened, and the lots described in the deeds as fronting on it.

This was an action of covenant brought to recover a quarter's rent alleged to be due on a lease executed by Striker to the defendant in 1839.

<p> Tenancy in Common; Notice to Vendee of Vendor's Title, by Recital of the Intent of the Purchase in deeds among the joint-purchasers. </p>

The appellants filed-their bill in the court below, stating the following case. Letters patent were issued to B. Grifen, a soldier in the New York line, for a certain lot in the military tract, town of Aurelius. On the 24th of March, G-, for a valuable consideration, sold his right to military lands, and made an assignment thereof to John Bird, on the back of the discharge, given to him by the commander in chief.

<p>Appeal from a decree of the Chancellor.</p> <p>The bill in this case was filed by the executors of the testator for the purpose of set!ling the construction of the will and codicil of George Lorillard, of the city of New York, who died in September, 1832, a bachelor, leaving real and personal estate worth about three millions of dollars ; most of which was in real estate in the city of New York. His mother survived him but a few days. He left two brothers of the whole blood, Jacob and Peter; one brother and sister of the half blood ; a niece, Mrs. Bartoxv, daughter of a deceased brother, Blaze Lorillard, and two grand-nephews, George and Blaze Lorillard, sons of a deceased son of his brother Blaze. Upon the death of his mother, the persons enumerated were the only heirs-at-law.</p> <p>By his will, made in October, 1831, he appointed his brother Jacob, and twelve of his nephews and nieces of the whole blood, children of his brother Jacob, Peter and Blaze, trustees and executors, and devised to them as such, as joint tenants, and not as tenants in common, all his real and personal estate, in trust, for the uses and purposes declared in his will; they were as follows:</p> <p>First, as to his real estate in the city of New York, to lease the same from time to time, and to receive the rents and profits thereof; and out of such rents and profits to pay sundry legacies, and annuities there bequeathed; and’ to account for, pay over, and divide the residue of such rents and profits, after deducting expenses and disbursements, to and among the twelve nephews and nieces who were named as executors and trustees in the will, and who were the only children of his brothers of the whole blood, during their natural lives ; and to the survivor or survivors of them, to be divided equally between them or such of them as should from time to time be living, share and share alike.” The shares of the nieces and grand-nieces to be paid to them for their separate use and benefit free from the control or liabilities of their husbands.</p> <p>Secondly, to convert all the residue of his real and personal estate into money, within three years after his death, and invest the same in the purchase of real estate in the city of New York; and the clear rents and profits of it to be paid and divided by the executors and trustees to and among all the children of his three brothers, and the survivor or survivors of such children during their natural lives, to be equally divided among them, share and share alike, and with the same proviso as in the preceding clause. He also declared it to be his will and desire, that his said nephews and nieces should not alienate, sell, or transfer their shares of such rents and profits, or any part thereof, without the written consent of a majority of his executors and trustees; that majority not to be less than three persons.</p> <p>Thirdly, The will directed, that after the death of all his said nephews, all his estate then remaining should be equally divided among all the children of such nephews and nieces, and the surviving children of such of them as might be dead, in equal proportions, per stirpes, and not per capita—special directions being given in the will as to the distribution ; which was not to be made until two years after the death of all his said nephews and nieces.</p> <p>Fourthly, The testator provided that not less than three of his executors and trustees might execute the trust: also, if reduced to less than five by death or disability, the number should, from time to time, be increased to seven. Such new trustees were to receive l-16th of the net income of the estate, during the time they acted as such, in lieu of their annuity.</p> <p>By a codicil, made in December, 1831, he devised in fee to his nephew, P. L., jun., son of his brother Peter, a moiety of various parcels of real estate, and also a house and leasehold lot of ground in the city of New York, upon condition that he within two years after the testator’s decease, pay to his executors and trustees $25,000, to be invested by them in trust for the uses and purposes declared in the second article of his will; and upon the further condition that he should agree to pay $200, as an annuity to B. M. jr., for 10 years after the death of the testator: if these conditions were not accepted, the devise to be void, and the property to be sold, and proceeds applied as directed in the second article of the will. By the same codicil, he gave a life estate in a certain farm to a grand-nephew G. L.; also another life estate in another farm to another grand-nephew, B. L.; and a life estate in two other farms to his niece, Mrs. Barton ; directing that after such life estates, the trustees should sell the property and invest the proceeds as provided in the second article. He also gave annuities to the children of his half brother during their lives or until the death of all the children of his three brothers, B., P. and J. L., to be paid out of the fund created for the payment of annuities.</p> <p>The will and codicil were proved, and letters testamentary issued to some of the nephews and nieces named in the will as executors and trustees. Catharine Holsman, the mother of the testator, made a will of her personal estate, previous to her death, and appointed her sons George and Jacob, and J. G. Coster, executors; the two latter of whom took upon them the execution of the will.</p> <p>The bill was filed by Jacob Lorillard, one of the executors and trustees named in the will of his brothers; and the seven nephews and nieces who first took out letters testamentary on the will of George Lorillard, together with the husbands of such of the nieces as were married; for the purpose of settling the construction of the will, and to have such of the trusts as were valid, carried into effect under the direction of the court. Mrs. Bartow and her husband, she having refused to join in the suit., and the four executors and trustees, who were minors were, with the other heirs at law, made defendants.</p> <p>They in their answers insisted, that the devises and bequests were illegal, except some of the specific devises and bequests contained in the codicil; and they claimed to have the residue of the estate distributed as in case of intestacy. The rights of the infant defendants were submitted to the decree of the court.</p> <p>The cause was first heard before the Tice Chancellor of the first circuit, (McCoun,) who decreed in favor of the validity of all the trusts contained in the first and second articles of the will.</p>

The original bill in this cause was filed in Sept. 1833, by Hawley tfc King, two of the executors and trustees of William James deceased, against Augustus James their co-executor and co-trustee, Mrs. James the widow, and the children and grand-children of the testator, and against the other persons who had either vested or contingent interests under his will; for the purpose of settling the construction and carrying into effect the trusts of the will.

<p>Devise to Trustees to make Partition of Real Estate of Testator; Power to Tenants for Life to Lease for 63 Years and to appoint Estate among Children and GrandChildren ; Will Void in Part, how far Void in Whole.</p>

<p>The testator, John Hone, there devised by his will, (made in July,-1831,) after a specific devise and bequest to his wife, the residue of all his estate, real and personal, to bis executors for the purposes of his will. He directed his executors to convert all his personal estate, with certain exceptions, into cash and invest it in mortgages or United States stock; to lease his real estate in the city of New-Y ork, and to sell that out of it, to be invested in the same manner, so as to form, with the income, one general fund for the purposes of his will. The executors were directed to pay certain annuities to his widow and to a niece, and to divide the residue of the income of the fund, from time to time as accruing, equally among his seven children and the descendants of two deceased children. At the expiration of 21 years from the date of the will or as soon thereafter as they should deem it discreet, they were directed to divide the real and personal estate among the heirs of the testator or their legal representatives. Special directions were also given as to the manner of making partition and limiting the extent of interest of the parties taking the same, so that the children of the testator should, in no case, Jake more than a life estate in the premises, the ultimate remainder over being limited to their descendants or the then heirs of the testator. By a codicil in August, 1831, he increased the bequest to his wife and the annuities to his and her nieces. He also by the codicil gave to each of his grand-children living at his death, $6000 to be paid at 21 or marriage; not to be paid, however, without the approbation of their parents to be expressed in writing; the testator desiring, that after the child was of age or married, the parents would fix a discreet or proper time for the payment of the legacies. They were directed to be paid out of the personal estate, and all the residue of the real and personal, was to remain subject to the provisions of the original will as thus modified. In 1832, the testator died leaving a widow, seven children, and the descendants of two deceased children him surviving.</p> <p>The executors filed a bill before the Vice Chancellor of the 1st circuit against the parties in interest, to obtain a construction of the will as to the validity of the devise to the executors in trust. The Vice Chancellor decreed that the devise of the real estate and all the trusts declared upon it were void, and that the direction to divide the real estate after the trust term ended, was also void. But he held the bequest of $6000 to each of the grand-children valid, and decreed payment thereof according to the will.</p> <p>On appeal from this decree of the Vice-Chancellor, it was affirmed by the Chancellor ; whereupon an appeal was taken by the executors to the Court of Errors. The opinion of the court was delivered by</p> <p>Mr. Justice Bronson, who said: “The testator attempted, by means of a trust to receive rents and profits, to render his lands inalienable for a term, of which more than nineteen years remained unexpired at the time of his death. This he could not do. The absolute power of alienation was suspended for more than two lives in being at the creation of the estate. The lives must be designated, and life must, in some form, enter into the limitation. No absolute term, however short, can be maintained. The statute has forbidden it.</p> <p>“ The whole trust estate, and the remainders limited upon it, are consequently void. (Coster v. Lorillard, and Hawley v. James.) The power in trust to make partition at the end of the term, is subject to the same objection as the trust. It works an illegal suspense of the power of alienation. That this may be the effect of a power in trust, and that the power will then be void, was adjudged by this court in the above cases.</p> <p>“The estate descended to the heirs at law, subject to the execution of the power, (if valid.) These and other grandchildren, and other remote descendants, not in being at the testator’s death, or who may not be born until the last day of the term, may, (under the will,) be entitled to share in the partition. It is evident, therefore, that at no time during the term, can such an absolute fee in the land be conveyed, as may not be defeated, in whole or in part, by the execution of the power. It could not be done if all mankind were to join in the conveyance.”</p> <p>“ In Root v. Stuyvesant, he observes, the power of appointment, which was there held valid by all the justices of the Supreme Court, was a power which the grantees might execute or not, at their pleasure. It imposed no duty on the tenants for life; it did not require them to do an illegal act But this is a special power in trust, and is imperative. The testator has directed a division which the law forbids. Such a power I think cannot be upheld for any purpose. He states that “ no distinction was made on the argument between the real and personal property” included in the trust; and he cites 1 R. S. 773, §§ 1, 2, which prescribes the same rule for both in this respect.</p> <p>The legacies to the grand-children he holds to be vested and free from all objection ; and having no necessary connection with the trust adjudged to be void, and being vested immediately on the death of the testator, were valid. He says : “ The counsel seem to have been agreed that the rule of the common, law and of our statute is still in force, and that the intention of the testator, so far as is consistent with the rules of law, must be carried into effect, notwithstanding the decision of this court in Root v. Stuyvesant. That case is in direct conflict on this point, with the decision of this court in Hawley v. James, and seems only to be regarded as an adjudication between the amicable parties then before the court, and not as a precedent which can affect the rights of third persons.”</p>

<p> Appeal from Chancery. </p>

<p> Devise ; Trust and Trustee. </p>

In this case, which was a religious squabble for the temporalities of a church between two sets of corporators and their respective adherents, the Chancellor held that where the trustees of a “ German Reformed Church” which was in ecclesiastical connection with and subject to the church judicatories of the Dutch Reformed Church (Calvanistic) in the United States, attempted to dissolve the connection, and employed German Lutheran pastors without the consent of a large portion…

The facts in the case were as follows: L. being indebted to E. in a sum of $6222, secured by two mortgages, and E. pressing him for his money, L. applies to Bush, the complainant, to advance the sum of $5600 to E., and take an assignment of his securities; agreeing to repay it in ninety days, with a douceur of $400; L. having arranged with E. for the balance due to him.

<p>Assumpsit on promissory note, and defence of usury.</p> <p>On the trial in the Common Pleas, the witness called to prove it, gave evidence of some declarations of the payee tending to show that he was receiving, or was to receive, usurious interest by some agreement; not proving whether made at the time of the loan and giving the note, or subsequently ; and the judge in charging the jury, left the question open to the jury to infer that it related to a time subsequent;—whereupon the defendant’s counsel insisted that the court misunderstood the testimony of the witness, and proposed to recall him to explain, and the court refused to do so, and the plaintiff had a verdict. On writ of error, The Supreme Court held, that this refusal to recall the witness was good ground for writ of error and reversal: That although the re-examination of the witness was discretionary with the court, yet if the court erred in the exercise of its discretion, it was error.</p>

<p>Appeal from Chancery. Bill filed to set aside a contract on the ground of usury. A bond and mortgage for $3000, payable in one year from date, with interest to become due half-yearly, and on which over five months’ interest had accrued, were assigned absolutely by the holder for $2600, in order to raise money. The assignment stated the consideration paid by the assignee to be $3000, and contained a covenant that so much was due and owing on the bond and mortgage. At the time of executing the assignment, the assignor also executed to the assignee a bond with surety conditioned that the mortgagor should pay the $3000, together with the interest, by the day appointed for that purpose in the securities assigned.</p> <p>The Chancellor held, that the transaction was usurious, and a mere device to evade the statute, (of 1837,) and decreed the securities to be given up and cancelled. On appeal,</p> <p>The Court of Errors reversed the Chancellor’s decree, holding that the transaction was on its face, a mere sale of a chose in action, unconnected with a loan, and therefore not usurious.</p>

The word “ plaintiff,” in the second and eighth sections of the act to prevent usury, (Laws of 1837, p. 486-487,) extends to the party… Held: contrary to the opinion of the Supreme Court on the point, that the defendant might call and examine the plaintiff in interest notwithstanding the suit was brought in the name of another; that the offence created by the 6th section of the act, is not consummated until the usury is actually received; that consequently a mere agreement…

Lands were purchased at a sheriff’s sale, with the knowledge that they were covered by a prior usurious mortgage, and the purchaser upon obtaining the sheriff’s deed, filed a bill in equity to set aside the mortgage, and to have the premises cleared of the incumbrance; but not alleging payment or offering by his bill to pay the amount actually loaned, &e. To this bill, the defendant demurred upon that ground.

This was an application to dismiss an alternative writ of mandamus, requiring the Common Pleas to make an order for the removal of a cause in that court to the United States Circuit Court, on the petition of the defendant in the suit, Kanouse, setting forth that the plaintiff, J. M. M., was a citizen of New York and himself a citizen of New Jersey. The suit was originally commenced by a declaration in which the damages were laid at $1000.

<p> Nuncupative Will. </p>

S. Vanderheyden, brother of the half-blood, to J. G. V., the respondent, died without issue, but leaving his wife enciente, and,a will, by which he gave his property to other persons than''the respondent ; but in case of a child born, then to his wife and child in fee. X G. V. filed a caveat against the proof of the will of the deceased. The surrogate proceeded, after citing the parties, to take proofs; and before the decree was made, a child was born.

<p> Execution of Will of Personal Estate before the Revised Statutes. </p>

Ejectment by plaintiffs as devisees, and not as heirs, of Benajah Brown, on a joint and several demise from all and each of the… Held: that upon the foregoing state of evidence, the legal presumption was that the testator had destroyed it animo revocandi, although it appeared that within a fortnight before his death he applied to a scrivener who had drawn a codicil, to draw another codicil to his will, which, however, was not drawn, nor was the will itself produced…

The questions decided in this case upon the will of Alice Lispenard, depend so much upon matters of fact, that we should hardly be justified in stating them at large ; the only principle of law asserted by the decision being one that can hardly be called tangible, and so indefinite and evanescent, indeed, as to baffle any thing like exactness in its terms, or certainty in its application.

This was an action against the stakeholder of a bet made upon the result of a state election. The Supreme Court held that the wager was illegal, as contrary to public policy, and the loser might recover back his deposit from the stakeholder.

The Court of Errors held in this case, that the decision of the Supreme Court on a prosecution for a forcible entry and detainer, where no return could be obtained to a certiorari, by reason of the .death of the justice of the peace, before the record was made out, and the Supreme Court had investigated the facts on affidavits, and awarded a restitution, might on a writ of error to the Court of Errors, be reviewed upon the evidence presented to the court below.

In this case, the defendant brought a writ of error for several defects in the record. 1. The verdict was defective ; the damages found by the jury exceeding the damages laid in the declaration. 2. The judgment was entered for the damages and costs only in an action of debt, thus giving damages and costs, where no debt was found. 3.

Error from the Supreme Court. The plaintiff claimed title as one of the heirs at law of Benjamin Areson, deceased, who died seized, in 1841, having shortly before his death made his will, containing… Held: that the words “ during her lifetime,” were to be applied only to the last preceding antecedent: viz. “the interest of the $500,” and that therefore the widow took a fee in the lands, and the court gave judgment of nonsuit.

This was an application on motion for a peremptory-mandamus to the trustees of Brooklyn, to compel them to file a report of commissioners of assessment and estimate, and obtain a confirmation of the same, and to have the damages which had been awarded, duly assessed, &c. The Supreme Court refused to issue the peremptory mandamus, as the relator did not show a complete, but only an inchoate right, and therefore, was not entitled to a mandamus ; that this writ will not be…

<p>Error from the Supreme Court. Ladue and Nelson as overseers of the poor of P. in Putnam county, sued Nevin before a justice of the peace in debt, for the penalty of $25, for “ selling strong or spirituous liquors in a less quantity than five gallons at a time, without having a license therefor, contrary to 1R. S. 680, § 15.” The return of the justice states that, “on the trial, the defendant being charged by the plaintiffs with the sale of ale, strong beer, or fermented beer, without a license therefor, confesses the charge in person, and claims it is not prohibited by statute.” The justice rendered judgment for the plaintiffs, for the penalty, whereupon the defendant brought a certiorari to the C. P., which affirmed, and he then brought error to the Supreme Court.</p>

Luer, plaintiff in error, sued Cort, Waydell and Underhill, in the N. Y. C. P., in assumpsit. The defendants had been partners under the name of N. Cort, & Co., for a year, ending in January, 1838, when they dissolved, and made an assignment for the benefit of their creditors. The trustees not acting, Cort was left in possession of the partnership effects, and acted in the adjustment of its affairs.