Volume 14 — Johnson's New York Reports

<p>The intention must be coiiectits^-rol dei““leistoi“J; ¡¡ñilr¡evary’ the eZZ°¡in "the amfiguRyJoi"» ing trust, tato/ bequeathed to his wiie due, and ranaindtrofmmonim }-naesWo?dd¿</íyí ?u¡¡3 b0® acceptation, and meant only cash, and did not comprehend bonds, mortgages, and other chose? in action j there being nothing in the will itself to show that the testator intended to use it in that extended sense. Nor were the declarations of the testator, or a reference to the state of his property admissible to show a different intent. A will is to be so construed that all the parts of it may be effectual and consistent; and an ambiguity apparent on the face of it cannot be removed by parol proof. Where a false or inapplicable description it> annexed to a subject? certain without the description, it is to be rejected. That construction will be most favoured which will prevent a total failure of a bequest, if specific $ but th* full force of this rule does not apply to a residuary clause. . ' Proofs are allowed to be read, in equity, without prejudge? subject to sjfjust exceptions, frsfc at ¡3W improper evidence ought not to be allowed to be produced.</p>

IN the month of January, 1809, the appellants filed a bill in v A J . the court below against the respondent, wherein they alleged, that in April, 1797, they applied to the respondent for certain lands in the western country, who consented to sell or lease the same to the appellants, but on account of their being undivided, could not then perfect the contract, but made, and delivered to the appellants, for their security, the following memorandum : 45 Messieurs John…

THIS was an action on a policy of insurance, by which the defendant in error, and his former co-partner, Henry Whitney, deceased, were insured in the sum of 20,000 dollars, at a prem*um °f 10 per cent., to return 11 per cent, if the risk ended at Gothenburg, without loss, upon goods on board the ship Atlantic, Charles Jayne, master, for a voyage at and from New-York to Gothenburg, and at and from thence to one port in the Baltic or N orth Sea, not south of the river Jade,…

<p>Where A. recovered a judgement gahiitd£ a°d b“te“y“uit ¡1^ 'ilitofventl barraásedRthat to' Th“ventthed vered by him against B. and C.t applied in satisyje^dgme™*’ aad0,¿jgbtRuB3'_’ chancerybiforiB “5osthe mayor’s court of the city of NemYork had refused to allow a set-off of judgments, it mas held} that a bill might be sustained in chancery to compel such set-off to be made, especially where new facts, uot- presented to the court below, were disclosed, notwithstanding the refusal of that court to allow it. Mattel s set up in an answer, by way of avoidance, and not necessarily drawn forth by the bill, must, after a general replication, be proved, or the defendant cannot avail himself of them. And, therefore, he cannot rely upon them on a motion to dissolve an injunction. A court of law allows set-offs of judgments, ex gratia; but a party applying to a court of equity is entitled to it as a matter of right. It is not necessary that the judgments should be in the same right; it is sufficient if the judgment, prayed to be set off, may be enforced at law against the party recovering the judgment to be diminished or satisfied by the set-off: as where a judgment, recovered by A. against B. and C., in trespass, is to be set-off against a judgment recovered by B. agaiust A.; for the whole amount of the judgment may be collected from B., who can have no contribution from C. A decision oí a court of law, upon a summary application to its equity, is not such a res judicata as to preclude chancery from examining the question; nor is chancery concluded where a new fact is disclosed which was not presented to the court of law. Chancery does not interfere in granting new trials.</p>

<p>In an action brought against ^master of a vessel for negligently running foul of, and injuring the vessel of the plaintiff, the owner of the vessel, under the command oS the defendant, is a competent •witaess for him.-</p>

Button brought an action of replevin for Cattle, &c., against ® , _ . . , ° x-Thompson* in the court below. The defendant pleaded. 1.

Two justices had given an order to remove Bainsley Stevens, a pauper, and his family, from the town of Wallkill, to the town of Mamakating. The pauper, in the year 1810 and 1811, resided in Mamakating, and was assessed in that town, in 1810, for a tax, to ten cents, xvhich he paid; and in 1811, he was assessed a tax of 48 cents, in the same town, xvhich the collector paid for him, but without the request of the pauper, who then had property sufficient to pay the tax.

THIS was an action of covenant brought to recover damages for an eviction of the plaintiff’s grantees, in four equal undivi- ‘ ® 7 J n dcd eighth parts of lot No. 64., in the township of Lamillus, The cause was tried before Mr. Justice Yates, at the Onondaga circuit, in June, 1816.

<p>Bonds given for duties to the CT» nited States, may be sued in the state courts, which have (by the judiciary act of the United Slates) with the courts of the United States, oiall-uita at common law, where me States</p>

THE plaintiff in this suit having recovered a agninst the defendant, in an action of ejectment, in order to vive the same, issued a scire facias, tested the 26th of October, 1814, returnable during the same term, against the defendant; to which the defendant appeared, and pleaded, that between the rendition of the judgment and the issuing the scire facias the sors of the plaintiff died, leaving heirs at law entitled to the . ii* • • mises recovered, who, m conjunction with…

THIS was an application, on the part of the defendant, t© set aside a verdict taken for the plaintiff, at the Ontario circuit} . * ' m July, 1816, and for a new trial, on affidavits submitted tov the. court, without argument, from which it appeared, that the action was brought upon a promissory note, held .by the plaintiff, executed by the defendant, payable to Thaddeus Oakes, or bearer, which was delivered to Samuel Hildreth, for the purpose of being negotiated in…

THIS was an action of assumpsit, brought against the defendant as endorser of a promissory note, stated to be made on the 29th of November, 1814, at New-York, by one Benjamin Dickenson, by which he promised to pay to the defendant, or order, six months after date, 300 dollars.

<p>Assumpsit lies on an topted promise, against a corporation.</p>

IN ERROR, on certiorari, to the justice’s court in the city of x* xr r * JV 67V-1 OTIC• The defendant in error brought an action, in the court below, against the plaintiffs in error, for an assault and battery and false imprisonment on the high seas, on board she ship Tea-plant, on a voyage from Liverpool to Mem-York.

THIS was an action of ejectement for lot No. 37., in the town of Manlius, in the county of Onondaga, which was tried before Mr. Justice Yates, at the Onondaga circuit, in June, 1 ° 1816.

THIS was an action of trover for one bale and four cases of merchandise. The cause was tried before Mr. Justice Spencer, at the New-York sittings, in November, 1815. The goods in question were shipped at Liverpool, in March, on board the ship Oliver Ellsworth, belonging to Strong Sr Dam vis, of which firm the.defendant was a member, for New-York.

<p>THIS was an action of assumpsit. The declaration contain-ed six counts. The first count stated, that on the 1st of 1813, at Quebec, to wit, at Plattsburg, in the county of the defendants were indebted to the insolvents for divers quantities of timber, spars, plank, and boards, sold and delivered to them by the insolvents. The second count was on a meruit for the same, and the third count for goods sold and delivered generally: then followed other common counts in sumpsit.</p> <p>The defendants pleaded three pleas, of which it is only necessary to notice the second, which was in answer to the three first counts of the declaration, and stated, that at the time the timber, &c., mentioned in the declaration, was alleged to have been sold and delivered, a public war existed between Great Britain and the United States, that the insolvents were citizens and the United States, residing in the county of Clinton, and the defendants were subjects of the king of Great Britain, residing in the province of Lower Canada, and that the said timber, were sold and delivered to the defendants at the city of Quebec, in the province of Lower Canada, the insolvents not having any license from the government of the United States, and contrary to the laws of the land and their allegiance.</p> <p>The plaintiffs replied, that before the declaration or commencement of the war between Great Britain and the United States, to wit, on the 1st of June, 1812, the insolvents, by the permission of the government of Great Britain, and of the province of Lower Canada, exported the said timber, &c., from the United States into the province of Lower Canada, and remained and continued with the same in the said province, by the permission of the government of the province, and until and after the commencement of the war, and until and after the sale and delivery.</p> <p>The defendants rejoined that the time of exporting the said goods from the United States was during the continuance of the act of congress, entitled <e An act laying an embargo on all ships and vessels in the ports and harbours of the United States, for a limited time,” to wit, on the said first of June, 1812, and that the insolvents, with intent to evade, and contrary to the provisions tiT the act of congress, entitled “ An act to prohibit the exportation of specie, goods, wares, and merchandise, for a limited time/9 exported the said timber, &c., from the United States by water: by reason whereof, and by force of the statute of the United States in such case made and provided, they were forfeited to the use of the United States, and remained so forfeited at the time of the sale and delivery.</p> <p>To this rejoinder there was a general demurrer, and joinder in demurrer.</p> <p>The cause was submitted to the court without argument.</p>

IN ERROR, on certiorari, to the justice’s court of the city of N ew-Y ork. Thomas brought an action against Gardner, in the court below, for an assault and battery committed on the plaintiff by Gardner on the high seas, on board the snow Navigator, of vvhich Gardner was the master, and the plaintiff a seaman on Board the same vessel.

THIS was an action on two policies of insurance, the one on fhc cargo, and the other on the freigh: of the ship Nancy, (both ship and cargo belonging to the plaintiffs,) on a voyage from… Held: and all her cargo was discharged, in order to repair her, the greater part of which was materially injured, and some of if. had become putrid. The cargo was not in a state to bear transportation, and required great care, after being unloaded, to preserve it from farther deterioration.

THIS was an action of assumpsit brought by the plaintiffs, trustees under the absent and absconding debtor act, for the creditors of Worrall and Williamson, merchants, in Liverpool, in the kingdom of Great Britain, to recover from the defendant a balance of account alleged to Idc due from him to Worrall and Williamson.

THIS was an action of debt on an arbitration bond, containing a general submission “ of all and all manner of action and actions, cause and causes of action, &c« quarrels, controversies, &c. at any time heretofore had, &c. or depending by and between the said parties.’’.

THE plaintiffs, and other persons since deceased, having, as ecutorsof Baltus Velie, recovered a judgment against/saac Weeks, since deceased, in this court, on the 18 th of August, 1800, for 417 dollars and 24 cents, issued a scire facias, tested in January term, 1815, against the heirs and terre-tenants of Weeks, by tue of which Myers was summoned as terre-tenant of a house and lot in Poughkeepsie, the land and tenement of Weeks, on the day of docketing the judgment, and…

IN ERROR, on. certiorari to a justice’s court. Barrymore brought in an action of trespass, * before the justice, against Drake, Corwin, and Curry, for taking and carrying away the plaintiff’s hog. The defendants in the court below pleaded not § The defendants then offered to prove, that Corwin and Curry were trustees of a school district, and had regularly issued a warrant to Drake, as collector of that district, and that he took the hog by virtue of that warrant.

THIS was an action of assumpsit, tried before Mr. Justice Yates, at the Ontario circuit, in 1816.

THIS was an action of assumpsit, which was tried before Mr.' Justice Yales, at the Onondaga circuit, in June, 1816. At the trial, a. written agreement between the parties, made on the 19th August, 1809, was produced in evidence, by which the defendant agreed to forward for the plaintiff four hundred barrels of salt, the property of the plaintiff, then being in store with the defendant, marked /.

THIS was an action of covenant, which was tried before Mr. Justice Yates, at the Cayuga circuit, in June, 1816.

IN ERROR, on certiorari to a justice’s court. Wiggins, B waggoner, brought an action on the case against Clute, a tavern-keeper, to recover the value of several bags of wheat and bar pi» ley, stolen from the sleigh of the plaintiff during the night, while he was entertained as a guest in the house of the defendant.

THIS was an actioníóf debt on bond. The condition of the bond, as set forth in the oyer, was as follows“ Whereas the said Zebulon (the plaintiff) and Levi Rice, heretofore executed their bond to the United States, conditioned to pay the collecof the twentieth collection district of the state of New-York, the amount of duty payable by the said Levi Rice, by virtue of the act of congress of the United Slates, passed the 24th day of July, 1813, entitled an act, laying duties on…

THIS was an action of assumpsit. The declaration contain-e(^ counts for goods sold and delivered, and for money had and received, in which the promises were Hid on the 1st'of May¡ 1815. The defendant pleaded, 1. Non assumpsit. 2.

THIS was an action of debt on an arbitration bond. The deelaration stated the submission to arbitrators, and their award that the defendant should pay the plaintiff the sum of 132 dollars and 98 cents, and should pay the arbitrators the sum of seven dollars for their fees; .and the breaches assigned are for the - * _ 0 non-payment or those sums.

The cause was tried at the July term of the court below, in 1816. The plaintiff, to prove his cause of action, produced one J°hn G. Hilts as & witness, to whose admissibility it was objected by the counsel for the defendant that he had been convicted of grand larceny. To prove this fact, witnesses were called, who testified that the clerk’s office in the county of Herkimer was burnt down in April, ! 804, and that most, if not all, the papers and records had been destroyed.

IN error, on certiorari, to the justice’s court of the city °f mitted on board of the vessel at sea. not guilty ; and, also, accord and satisfaction. New-York.

THIS was an action of ejectment, brought to recover lot No. ’n die town °f Homer, in the county of Courtlandt, and was tried before his honour the Chief Justice, at the Courtlandt Circuit, in 1816.

THIS was an action of assumpsit, brought to recover a compensation for supporting the defendant’s slave. The cause was tr*e(l before Mr. Justice Van Ness, at the Albany circuit, in Drfnhpr Ifilfi VCCOOer, IblO.

THIS was an action of eiectment, brought to recover 200 acres J 7 o of land, on the west side of lot No. 60, in the town of Sterling, The cause was tried before Mr. Justice Yates, at the Cayuga tfMrnnif in Ifilft 111 ldib, , Peter Boise, by deed poll, dated the 5th of July, 1794, and which was recorded on the 12th of June, 1807, wherein he described as late private in the first New-York regiment, in consideración of forty pounds, granted, bargained, sold, and quit-claimed to…

IN ERROR, to the court of common pleas, of the county of Delaware.

<p>A devise of iaod of^perpetuit-y! is nothing in the will from ■which a fee can be raised by imoniyta0niifeeesS ths</p>

IN ERROR on certiorari, to the court of general sessions of the peace, for the county of Montgomery. Angle Preston, a pauper, was removed from the town of Brunswick to the town of Scaghticoke, by an order of two justices, dated the 1st day of September, 1815; in which it was adjudged, that the legal settlement of her, the said Angle Preston, was in the town of Scaghticoke.

THIS was an action brought to recover back a premium which had been paid by the plaintiff to the defendants, for the insurance of the ship Hercules, on a voyage from New-York to Liverpool, and back to NewYork. The declaration contained a count for money had and received, and other common counts in assumpsit ; to which the defendants pleaded the general issue. The cause was tried before Mr. Justice Yates, at the New-York sittings, in November, 1816.

IN ERROR, to the court of common pleas of the county os C nmvilnv)f\t WwtUis The defendants below objected to the testimony, but the court permitted it to go to the jury, and a verdict was found for the plaintiff below. The defendants below tendered a bill of which was removed into this court by writ of error. account.

THIS was an action brought to recover the penalty given to the second section of the act of the 6th April, 1813, banking . 7 . (2 An act to prevent the passing and receiving of bank notes ¿ess ex-£ o o the nominal value of one dollar, and to restrain unincorporated hanking associations. The cause was tried before his honour the chief justice, at the KewYork sittings, in April, 1816.

THIS was an action of covenant. The declaration contained five counts. The first count stated, that the plaintiffs had caused .

This was an action of assumpsit for money had and received, brought by the plaintiff in error against the defendant in error, vvhich was tried in December, 1815, in the court below.

THIS was an action on the case which was tried at the Dela- . . . 1.1 - n, . f r * ware circuit, in 1816, before his honour the duel Justice.

THIS was an action of assumpsit for goods sold and delivered, which was tried before Mr, Justice Van Ness, at the Jefferson circuit, in June, 1816. The defendants, Hunter and Sterling, had been taken upon the capias; the other two defendants were returned not found.

THIS was a motion for a mandamus to the recorder of the . , r 7 ,. . , . . city and county oí Js cw-Yorlc. directing him to issue a warrant ° . sentandabssond-oi attachment^ in pursuance of the act for giving relief against * o o o absconding and absent debtors.

ROSS, for the plaintiffs, moved for leave to amend the record ©f the judgment in this cause, by inserting the words “ and Lemuel Smith,’’ after the words “ Wright Seymour,” in the warrant of attorney, and in the memorandum of the record, and by adding the letter s to the word defendant wherever it occurred in the record ; and that the judgment be docketted, nunc pro tunc, against the said Lemuel Smith, defendant.

BALDWIN, for the defendant, moved that the rule for a new trial, which had been granted at the last term, on the motion of the plaintiff, should be vacated. From the affidavits read, it appeared, that the cause was tried at the last Ononda&a circuit, 11 ° when a verdict was found for the defendant.

<p>APPLICATION was made to the first iudge of the court of common pleas of Montgomery county, by Gardner, an inhabitant of the county, and one of the creditors of Murray, who had been imprisoned more than sixty days on execution, within the county, for an assignment of his estate for the benefit of his creditors, pursuant to the act for giving relief in cases of insolvency, passed the 12th of April, 1813. (1 M. R. L. 460. sess. 36. ch. 98. s. 9.)</p> <p>The judge, on the 20th of December, received the petition, affidavits, &c. and granted an order for the creditors to show cause, &c. before him, on the 28th of February last, when Gardner appeared, and produced the necessary proofs of publication, See. and prayed an order for the assignment, no person appearing to oppose it; but the judge refused to grant the order, stating as a reason for his refusal, that on further advice, he was of opinion that he had no cognizance of the cause, nor any authority to grant relief under the ninth section of the act,</p> <p>A motion was now made for a mandamus to be directed to the judge, commanding him to grant the order, &c.</p>

THIS was an action of trespass for taking and carrying away two horses, the property of the plaintiff, which was tried before his honour, the chief justice, at the Saratoga circuit, in September, 1816..

THIS was an action of ejectment, brought to recover land lying in the town of Hoosick, in the county of Rensselaer. The, cause was tried before Mr. Justice Platt, at the Rensselaer cuit, in December, 1816.

<p>THIS was an action of ejectment which was tried before Mr, Justice Van Ness, at the Herkimer circuit, in June, 1816.</p> <p>The premises in question were claimed by the plaintiff as part of lot No. 1., in the subdivision of great lot No. 5., in the general division of Glen’s purchase, in the town and county of Herkimer. The plaintiff gave'in evidence a deed from two of the commissioners of forfeitures of the western district, to James Caldwell, dated the 27th of August, 1788, for the lot No. 1., which was described therein as lot No, 1., in the division of lot No. 5„ in the patent to Glen, De Lancey, and others, and which had become forfeited by the attainder of De Lancey, estimated as containing 125 acres. Caldwell, by deed dated the 16th of July, 1794, conveyed to the lessor of the plaintiff.</p> <p>The defendant claimed the premises as part of lot No. 165., in the first allotment of the patent to Sir William Johnson, called the royal grant, and produced in evidence a deed of lot No. 165., from the commissioners of forfeitures of the western district, to Peter Bellinger, Adam Harter, Michael Myers, and Frederick Harter, dated the loth of February, 1788, which was described therein as lot No, 165., in the first allotment of thepatentto Sir William Johnson, which had become forfeited by the attainder of Sir John Johnson. Three of the grantees, by deed dated the 1st of January, 1790, released their interest to Frederick HarterK the other grantee. The boundary line between the two patents had been run by directions of Sir William Johnson, in 1772, according to which the premises in question would be included in Glen’s purchase ; and in 1786 a boundary line between the patents was run by John Van Alen, by order of the commissioners of forfeitures, by which the premises fell within the patent to Johnson. A variety of testimony was given at the trial as to the true location of the patents, but which it is unnecessary to state.</p> <p>A verdict was found for the plaintiff, subject to the opinion of' the court.</p>

THIS was an action on a policy of insurance, tried before / ■ _ tt- • • . . Mr. Justice Spencer, at the New-York sittings, m November, 1 ° ; where a verdict was taken for the plaintiff, subject to opinion of the court, on a case to be made, with liberty for either party to turn the same into a special verdict, subject also to an adjustment as to the amount; upon such principles as the court should direct.

<p>A license to keeP a taVem iS a personal trust, which cannot be assigned wanpetni°1”ygl¡yent5y ííth^act™1?!* fendañt ‘cannot license granted son.n°‘her !'cr'</p>

THIS was an action of slander tried before Mr. Justice Platt, at the Orange circuit, in September, 1816. The words charged in the three first counts of the declaration, and proved, on the trial, to have been spoken, 'by the de fendant, of the plaintiff, were, the plaintiff is a thief, and has stolen fifty dollars in cash from Jacob De Witt. These words were spoken in this state, -but had reference to a transaction which took place in Pennsylvania, where Jacob De Witt resided.

THIS was an action for an assault, battery, and false imprisonment. The cause was tried before Mr. Justice Platt, at the Greene circuit, in September, 1Ó15. The defendant was a major commanding a battalion of militia which had been ordered out by the governor, on the requisi tion of the president of the United ¡States, under the act of congress, authorizing a detachment of one hundred thousand men froái the militia of the United States.

<p>THIS was an action of assumpsit, brought to recover the amount of certain instalments payable by the defendant on ty shares subscribed by him in the stock’of The Dutchess Cotton Manufactory. The declaration contained five counts. The first count stated that the defendant, on the 1st of February, V 3815, made a certain note- in writing, commonly called a promissory note, his own proper hand being thereto subscribed, bearing date, See., and then and there delivered the said note to the plaintiffs, and thereby promised to pay >he plaintiffs, by the name and description of The Dutchess Cotton Manufactory, the sum of three thousand dollars, for thirty shares of stock in the said Dutchess Cotton Manufactory set opposite to his name, in such manner and proportion, and at such time and place as should be determined by the trustees of the said company : the resolutions of the trustees, at two several meetings, directing that certain instalments should be paid by the stockholders, are then stated, by means whereof, and by force of the statute in such ease made and provided, the defendant became liable to pay the same to the plaintiffs, and being so liable, undertook, &c.</p> <p>2. The second count stated that the defendant, on the 1st of February, 1815, made a certain other note in writing in the words and figures following, to wit: “ We, whose names are hereunto subscribed, do. for ourselves and our legal representatives, promise to pay to The Dutchess Cotton Manufactory the sum of one hundred dollars for every share of stock in the said Dutchess Cotton Manufactory set opposite to our respective names, in such manner and proportion, and at such time and place, as shall be determined by the trustees of the said company. February 1st, 1815.” To which note the defendant subscribed his name, and opposite to his name, so subscribed, set and affixed the number 30, by means whereof he became ra stockholder, and entitled to thirty shares of the stock, and became liable to pay the plaintiffs for the same the sum of 3000 dollars, being 100 dollars for each share of stock, in such manner and proportion, and at such time and place, as should be determined by the trustees of the company. That on the 7th of March, 1815, the trustees determined that the stockholders should pay to the.treasurer, on each share, on the first day of May, then next, the sum of five dollars, and the further sum of five dollars on each share on the 1st day of June, then next: and the plaintiffs aver, that at the time of passing such resolution, as well as at all times since, Cyrenus Crosby, a stockholder in the said company, was treasurer thereof, and resided and kept. his office in Poughkeepsie, of all which premises the defendant bad notice; by means whereof, and by force of the statute in such case made and provided, the defendant became liable to # # 1 pay the plaintiffs the sum of 150 dollars, on the 1st day of May, ¡n the year aforesaid, being 5 dollars on each of the 30 shares of stock subscribed and held by him, and the further sum of 150 dollars on the first day of June, in the year aforesaid, being other 5 dollars on each of the said shares of stock, and being so liable, undertook, &c And the plaintiffs farther say, that afterwards, to wit, at a meeting of the trustees, holden on the 20th of September, 1815, it was further determined that the stockholders should pay to the treasurer of the company, on each share of stock, on the first Monday of November next ensuing the day .of the resolve, the sum of 10 dollars, and the further sum of five dollars, on each share, on the first Monday in December, then next: the plaintiffs then aver that Cyrenus Crosby was treasurer, &c., by reason whereof, and by force of the statute in such Case made and provided,”the defendant became liable to pay the plaintiffs the sum of 300 dollars, on the first Monday in November, in the year aforesaid, being 10 dollars, &c., and the further sum of 150 dollars, on the first Monday in December, in the year aforesaid, being five dollars, &c, and being so liable undertook, &c.</p> <p>3. The third count stated that the defendant, on the 1st of February, 1815, applied himself to the plaintiffs, and offered them, in case they would suffer and permit him to become a stockholder in the company by subscribing in their book for that purpose, and to take 30 shares of the stock, that he would pay them 100 dollars for every share, in such manner and proportion, and at such time and place, as should be determined by the trustees: and the plaintiffs, in fact, say, that they permitted the defendant to have 30 shares on the terms aforesaid, and to subscribe a subscription book or paper, with a head and subscription as follows, to wit “ We, whose names are hereunto subscribed, &c, whereupon the defendant subscribed his name in the said book, or subscription paper, beneath the entry aforesaid; and opposite to his name so subscribed, set and affixed the.number 30, by reason whereof the defendant became a stockholder, &c„ (as in the preceding count.)</p> <p>The fourth count was for money lent, money paid, and money had and received and the fifth count was on an insirml ,immputassent. The defendant pleaded non assumpsit, to the •first, fourth, and fifth counts, and demurred to the second and third counts, specially, for the following" causes: 1. Because ’ ~ J 7 . ° they set forth a note in writing, or written agreement between the parties, as being a promissory note within the statute, and set forth no good or valid consideration on which it was made, whereas it is not a note within the statute, and the consideration ought to have been specially set forth. 2. Because it is statecl in the beginning of these counts, that the assumption of the defendant was an express assumption, made at the date of the agreement in writing; and in the latter part of those counts respectively, two implied assumptions are stated to have been raised at different times, to wit, on the 7th of 'March, 1816, and the 20ih of September, 1815, By reason of the order of the trustees, and by force of the statute, &c., and because the counts contain duplicity in this respect. 3. Because it is not averred that any certificates of stock were ever given or tendered to the defendant, and because it does not sufficiently appear that the parties were mutually bound to each other, and that the defendant acquired any right in the stock of the company by his subscription, or that the plaintiffs were liable to the defendant for the stock. 4. Because it does not appear in these counts themselves, or by reference to any other part of the declaration, that the plaintiffs are a body corporate duly organized in pursuance of law, nor that they have taken the steps necessary by law to create them a body corporate. 5. Because no sufficient legal consideration is stated for the agreement set forth.</p> <p>The plaintiffs joined in demurrer.</p>

IN ERROR, to the court of common pleas of the county of Chenango. This was an action of trespass de bonis asportatis, brought by dol-lars, direct-ed the defendant in error against the plaintiff in error, a justice of the peace of the county of Chenango, for illegally issuing an against the defendant in error, the plaintiff below. The cause was tried in the October term, 1816, of the court below.

THIS was an action of covenant. The declaration stated, that 0n the 18 th of April, 1805. by a certain indenture, the defendants, ¡D consideration of the sum of 2500 dollars, bargained and ^ e , so^ to the plaintiff, jn fee, a certain piece of land, in the town °t Paulings, and covenanted that they “ were lawfully seised in their own right, of a good, sure, and indefeasible estate of inheritance, in fee simple, of, in, and to the said premises, with the appurtenances, and…

THIS was an action of trespass, which was tried at the Ulster circuit, for breaking and entering the close of the plaintiffs, covered with water, usually called the Green Flats, and fishing therein.

<p>In an action of returning an %r' the act for debtst‘&c,(i.zvr. thepiainturi-not entitled to vnte~ wi °° the balance due on the execution, the remedy given ^¡^gVtíenawre of a penal-</p>

IN ERROR, on certiorari7 to the justice’s court of the city OÍ J^CW-YovIc* This was an action oi assumpsit for seaman’s wages.

THIS was an action of trespass on the case. The declaralion stated that the plaintiff was possessed of a negro slave call•ed Primus, and that the defendant being sheriff of the city and county of New-York, by virtue of a writ of pluries homine replegiando, caused Primus to be replevied ; that the plaintiff claimed the said slave,but that the defendant, nevertheless, suffered him to goat large, without surety and pledges, for his return, in case he should make a default, or a…

THIS was an action of assumpsit on a promissory note, brought by the endorsee against the maker.

THIS was an action of trover a brig cargo, J. Platt, at the New-York sittings, cause was tried before Mr in June, 1816. The plaintiff being the owner of a brig called the Jane, sent her with a cargo, consisting principally of flour, to Laguira, where she arrived in May9 1812, consigned to one Shoiwell, who sold the cargo on account of the plaintiff.

THE prisoner was convicted at the last court of oyer and ten*, miner, &e., held in the county of Otsego, of a felony in stealing a trunk. It appeared in evidence, at the trial, that the trunk was lost from a stage coach in the highway, and was there, afterwards, found by the prisoner, who took and carried it away.

THIS was an action of debt on an arbitration bond, the dition of which recited as follows: 61 Whereas Lambert burgh, son of the said Sanrnel.hhe plaintiff,) has commenced a suit .. v 1 z in the supreme court of this state against John Bame. son of the . e 1 0 said William.

IN ERROR, to the mayor’s court of the city of New-York. The plaintiffs in error brought an action of trespass on the case, in the court below, against the defendant in error, for in running foul of a sloop owned by the plaintiffs.

THIS was an. action of assumpsit on a policy of insurance, on the ship Mark 8c Abigail, on a voyage from Boston to Cadiz, 1 ° J ° underwritten by the defendants. The cause was tried before v Justice Platt, at the New-York sittings, in December, i p i c i01Ve The policy was in the usual form of printed policies in the city of New York, in which the ship was valued at 8,000 lars, at four and a half per cent premium, and warranted rican property.

This wasan action on the case, to which the defendant usage, is guilty.

THIS was an action of assumpsit. The declaration contained the usual money counts, and a count on an insimul computassent.

THIS was an action of ejectment, commenced in the court ° Tr 7 of common pleas, or mayor’s court, of the city or New-York) 17 J 1 v in which common bail was filed, and issue joined; but before any trial or judgment in that court, a writ of certiorari was sued out of this court, directed to the court below, allowed, filed, and returned in due form.

<p>THIS case came before the court upon the return to a Habeas Corpus, directed to Samuel M'Clallen, who held, and claimed, a negro girl, named Nan Mickel, as his slave.</p> <p>Henry Michael, the owner of the negro girl, by his last will and testament, dated the 15th day of January, 1813, declared as follows: “ I manumit and give freedom to my negro woman Molt, and her daughter Nan, immediately after my decease.’’ The testator, however, soon after the date of his will, sold Nan as a slave to one Cook, from whom M‘Clallan derived his title.</p> <p>The testator, Michael, afterwards died. The question submitte<^ to the consideration of the court, by the consent of parties, on the facts above stated, was, whether, under these circumstances, the negro girl Nan was entitled to her freedom ?</p>

The defendant in error brought an action of assumpsit, *n the court below, against the plaintiff in error, and declared for work and labour, and on a special agreement, by which he undertook to take charge of the brick yard of the defendant below, the plaintiff in error, and to make a certain quantity of . r . . - , J bricks, for which he was to receive from the defendant below 80 dollars.

Collier, in behalf of the plaintiff, moved for treble dama» ges, and for treble costs in this case, it being an action of trespass for cutting down timber, &c., brought under the 29 th . /* ** n t section of the act for the amendment ot the law, (1 vv • it. L. . x 525M sess. 36. ch. 56.,) lit which the jury had found a verdict for the plaintiff, and assessed the damages. The question was, whether the plaintiff was entitled to treble costs.

Henry, for the defendant, moved for judgment as in case of non pros, on the ground that the plaintiff had not delivered the particulars of his demand, pursuant to the order made and served on him, by the defendant, for that purpose.

THIS was a motion to set aside the report of referees. It appeared from the affidavits which were read, that the plaintiffs entered into an agreement under seal, dated the 14th of November, 1815, with Jacob Harsen, and the defendant, Cornelius Harsen, by wiii'ciniie former, in consideration of the sum of 900 1 J 7 m . dollars, agreed to open a cartway in Seventieth-street^ m the city 0f j\f ew-Y ork, the dimensions and manner of which were stated in die agreement, and bound…

<p>Where a 03Uf£, ishisre™„’ habeas corpus. from a court of common pitas, the defendant aañau, ¡>u the habeas corpus in the^ same had been commenced here, though common bail on-From ¡J t^eb““</p>

<p>A bastard «has town where it ¡^acquriesa Set-”j¿an„ftheaj„ucB¿ ™d ™¡_in" settlement Iegot eíaee«“£reer ba where tüey are /£££, the sitaemate children, until their settlement by pa»rentage is día « covered.</p>

IN this, and several other causes, in which Indians alone were the lessors, a motion was made by the defendant to strike out the demises of the Indian lessors in this case, and in the other eases to set aside the proceedings for irregularity, with costs, to be paid by the attorney of the plaintiff. Cady, for the defendant, contended, that by the act relative to the different tribes and nations of Indians, within this state, (sess. 36. ch. 92. s. 1. 2. 27. 2 AT.

THIS was an action of assumpsit, The declaration contained a count on a judgment for 488 dollars and 32 cents, recovered by the plaintiff against the defendant, in the Superior Court of the state of Connecticut, hoi den at Litchfield, in Fe- . . . bruary, 1815. It also contained a count on an msimul compuv . ■* taSsentf and the common money counts. The 'defendant pleaded, 1.

IN ERROR, on certiorari to a justice’s court. The defendant in error, who was plaintiff in the court below, brought an action against the plaintiff in error, and declared for a reward offered for a horse stolen from the defendant below, and for services rendered and money expended in obtaining the horse.

<p>A default tor win always be set aside, on payment of costs, if there is merit®daTud no trial has been foatf</p>

BLOOM, for the defendant, moved to set aside the default entered in this cause, for want of a plea. The defendant was served with a notice of the rule to plead in this cause, which expired the 15 th of August last; on the 13th of August, he obtained an order of the recorder of the city of jY ew-York, enlarging the time to plead to the 10 th of September, which was duly served on the plaintiffs’ attorney, on the 16th of August.

MARCY, for the defendant, moved to set aside the inquest / 7 * taken in this cause for irregularity, on an affidavit of merits, He read an affidavit, also, stating that the replication in the cause, tendering an issue to the country, was served on the defendant’s attorney, on the 13th of August last, and a notice of trial for the Montgomery circuit, to be held on the first day of September, was served at the same time.

THE defendants, at Barbadoes, drew two bills of exchange on England, which were endorsed by the plaintiff, and returned protested for non-payment, to Sherman, Porter, 8r Co. of New* Haven • Mulock, being at Boston, the holders, at the request of the plaintiff, brought a suit against Mulock, as drawer, in which he was arrested and imprisoned.

THE prisoner was tried at the court of Oyer and Terminer, in Dutchess county, in September last, on an indictment for forging the following order: “ Poughkeepsie, June, 1817 ; To the cashier of Levi MiKean’s exchange office, pay to John Low, or bearer, fifteen hundred dollars, in N. Myers’ bills or yours, David B. Lint.’’—There was a verdict of guilty; and the counsel for the prisoner having moved in arrest of judgment, on the ground that the check, or order, set forth in…

THE declaration in this cause contained ten counts; the first count was for a libel published the 9th of April, 1816.—The _ r 7 7 ■, . other courts were for sLander; and the various words were charged to have been spoken at the same time.

Butler brought an action of assumpsit against Campbell, in the court below.

THIS was an action of trespass for beating the plaintiff’s mare, by reason whereof she died. The cause was tried at the Greene circuit, in August, 1816, before Mr. Justice Fan Ness. The mare was proved to be worth 50 or 60 dollars.

<p>IN ERROR, on certiorari to a justice’s court. ' • J</p> <p>This was an action of trover, brought by the defendant in error, the plaintiff in the court below, against the plaintiff in error, for goods which he claimed by virtue of a purchase at a sheriff’s sale under an execution against one Ellis. It appeared that the deputy sheriff, when he made the levy, under that exe cution, did not see the property in question, or know that Ellis owned it, and that at the time of the sale he did not know that it belonged to Ellis ; but he put up some articles specifically, and all the other personal property, generally, intending thereby to sell the whole of the personal property of Ellis. The defendant below set up a claim to the property as a purchaser under a prior execution against Ellis; and evidence was given to show that that sale was fraudulent. It appeared that when the sale to the plaintiff below was made, Ellis was in possession of the articles claimed in this suit. The justice gave judgment for the plaintiff below, the defendant in error.</p>

THIS was an action of ejectment, brought to recover part of' a lot, of thirty-three acres, situate in the town of Catskill, in the county of Greene. The cause xvas tried before Mr. J. Van Mess, at the Greene circuit, in August, 1816.

IN ERROR, on certiorari to a iustice’s court. The defendant m error brought an action against plain- ° ° t l tiff in error, the defendant in the court below, for his services as a witness in a foreign county ; and it appeared, at the trial, that the plaintiff below was subpoenaed, from the county of Schoharie, to attend a trial at a justice’s court, in the county of Greene; that he was absent three days, and had received 75 cents. justice gave judgment for the plaintiff, for…

THIS was an action of assumpit, for money had and re* ceived. The cause was tried before Mr. J. Yates, at the Dutchess circuit, in September, 1816.

IN ERROR, on certiorari to a justice’s court. The defendant in error, who was plaintiff in the court below,, brought an action on the case against the plaintiff in error, and declared against, him, as a constable, for the escape of one Bixby, execution.

IN ERROR, to the court of common pleas of Onondaga dounty. Hoskins brought an action of assumpsit, to recover back money paid by him to Ellis, on a contract for the sale and purchase of land. On the trial in the court below, the jury found a special verdict.

TWO justices of peace, of Kingsbury, made an order for the removal of Richard Sweet, a pauper, from that town to Fort Ann, as the place of his legal settlement. There was an appeal from this order to the general sessions of the peace of Washing ton county, which was tried in May, 1816, and the order of the justices confirmed.

<p>THIS was an action of debt on an award, tried before Mr. Justice Fan Ness, at the New-York sittings, in November, 1816.</p> <p>The arbitrators made an award, under their hands and seals, reciting the bond of submission, and by which they awarded the defendants to pay to the plaintiff’ 2,656 dollars and 25 cents, and, also, that on the delivery of the award, they should pay to the arbitrators, 30 dollars, being one halt of the expenses of the arbitrators, &c. and that the parties, on payment of the said sumsi should execute mutual releases, &c. In the margin of the awal’d the following words were written by the arbitrators: “ Gilbert Platt is to give up the note which he holds against N. Smith & Co. The store remains joint property. The outstanding debts to be equally divided.’’</p> <p>A counterpart award was delivered to the defendants, in which the word dollars was omitted after the words and figures “ two thousand six hundred and fifty-six JyL”—But the other part, in which the word dollars was properly inserted, was, at the time, shown to the defendants.</p> <p>The jury, under the direction of the judges, found a verdict for the plaintiff, subject to the opinion of the court on the case.</p>

IN ERROR, on certiorari to a justice’s court. The defendant in error brought an action, in the court below, against the plaintiff in error, and on the return of the summons one Wilbor appeared for the plaintiff below, the defendant in error; and, on his authority, for that purpose, being denied by the defendant below, Wilbor produced a paper purporting to be a power of attorney, with the name of the plaintiff subscribed.

<p>A Court of special ,reatF.cüon of <,/” conviction special session*, the place where the offence -ras committed must have been m the tionof the court. Whether it 18 !>RCRSSaryj>> state that the “¡ms^'issSii^ which the rested was made Qum. A fraud, to be indictable at common law* and such as common pru* dence is not to guard against; as the using of false weights and measures, or false tokens, or wheie there has been a conspira-cy to cheat Where a got ofa note, that ¡¡fok "aitshftd a‘° then carriRd ¡t away, and to deliver it to the holder > it was held that this was merely a private fraud, and not punishable criminally.</p>

THIS was an action of covenant, for the breach of a cove-7 nant °f title, in a deed.

THIS was an action of covenant, on an indenture of ticeship.

<p>IN ERROR on certiorari to a iustice’s court.</p> <p>The defendant in error brought an action against the plainiiffs in error, in "the court below, for not doing some work as a •carpenter, faithfully, and in a workmanlike manner. The defendant below pleaded the general issue, and a former action by him, as plaintiff for his pay for the same work. It appeared tliat the defendant below had worked for the plaintiff 25 days, and had recovered from him 1 dollar 25 cents per day. Considerable evidence was produced on the part of the plaintiff, A x 1 that the defendant was not a good workman, and did not earn ° * 1 dollar 25 cents per day. It also appeared, on the part of the defendant, that he was absent, for some time, from the plaintiff’s work, who came after him a second time, and was anxious to have him return. The justice, before whom the former trial was had, testified that the plaintiff defended that suit, and offered evidence to show, that the defendant’s work was not worth the wages which he claimed, and which it appeared that the plaintiff had agreed to give, for the purpose of reducing the amount of his recovery ; but the justice stated, that he considered the plaintiff bound by his agreement, and did not allow any deduction. A verdict and judgment were given in this cause for the plaintiff below, the defendant in error.</p>

THIS was an action of assumpsit. The declaration contain-e(l the usual money counts, and the defendant pleaded non as-sump s i t, with notice of his discharge under the insolvent act of 1811. The cause was tried before Mr. J. Spencer, at the Wash- . . mgton circuit, in June, 1816.

IN ERROR, on certiorari to a justice’s court. 7 v After the court below was opened, for the trial of this cause. 1 1 J R>e parties had a conversation relative' to the balance due the plaifltiffbelow, who is the defendant in error, and it was agreed that one Schram should settle the amount, who calculated the balance at 19 dollars and 2 cents, for which the justice, by the express order and consent of the parties, entered judgment~ The defendant below then offered proof of…

<p>IN ERROR, on certiorari to a justice’s court.</p> <p>The defendant in error brought an action of trespáss, in the court b.elow, against the plaintiff in error, and declared for a trespass and breach of close, in entering upon, and using a private road, laid out across the land of the defendant below, for the benefit of the plaintiff below. The defendant pleaded the general issue. At the trial, it was admitted, that the road had been laid out over the land of the defendant, and regularly recorded, and the plaintiff proved the use of it by the defendant; and also, that at the time when the damages were assessed for laying out the road, the defendant, on being asked by the commissioners, whether he intended to use the road for any purpose, answered in the negative. The defendant then objected to the form of the action, that it should have been trespass on the case, and not trespass, but the objection was disregarded, and a verdict and judgment were rendered for the plaintiff below.</p>

THIS was an action of replevin, for taking certain goods of the plaintiff; to which the defendants pleaded non cepit, and in justification, that the defendants, Gibbs and Standish, as in-specters of the customs for the district of Champlain, and the other defendants, as their bailiffs and servants, seized the goods ' as forfeited to the United States, for a breach of the non-intercourse law.

THIS was an action of assumpsit. The declaration counts on a promissory note, for gobds sold and delivered, and the common money counts.

IN ERROR, to the court of common pleas of the county of The defendant in error brought an action on the case against the plaintiff in error, in the court below, for a false return by latter, as a constable, to a summons.

This was an action of ejectment for certain premises situate in the city of New-York. The cause was tried before Mr. J Yates, at the New-York sittings, in November, 1816. William Teller, John Kip, and Lucas Kiersted, were the patentees of a certain lot of land in the city of New-York, called the Negro Burial Ground.

THIS Was an of action covenant, and was tried before Mr. J. T/afi, at the Steuben circuit, in June, 1817. The declaration set forth an agreement between the parties, by which the defendant covenanted, by a certain day, to build, finish, and put into operation, a saw-mill, to be erected in the . . . . ~ . . most advantageous situation, on the river C onhocton^ on lot number 45, in the town of Conhocton. Oyer was given of the agreement, and the defendant pleaded non est factum.

THIS was an action of assumpsit on two promissory notes, executed by the defendants to the plaintiff, both dated the 16th of March, 1816, one for 45 dollars and 89 cents, and the other for 29 dollars and 37 cents.

IN ERROR, on Certiorari to a justice’s court. The plaintiff in error brought an action against the defendant in error, in the court below, for the costs of a judgment of non-suit, in the court of common pleas, of Saratoga county, in a suit commenced by the present defendant against the plaintiff, in August, 1811.

THIS was an action of assumpsit, and was tried before V J Mr. J. Platt, at the Delaware circuit, in June, 1817.

THIS was an action of ejectment, brought to recover part of •lot No. 73, in the township of Geneva, late Milton, in Cayuga county. The plaintiff, at the trial, produced in evidence an of a patent for lot No. 73, to Jeremiah Austin, dated October 7th, 1807 ; and the defendants gave in evidence the record of a deed from J. Austin, and Ruth his wife, to Cornell and Barton, for the same lot, dated December 29th, 1805.

IN ERROR, on certiorari to a justice’s court. u The defendant m error, brought an action against the plaintiff *n error, in the court below, for a trespass in entering into ^¡3 antj taking away a mare and colt. The defendant below pleaded the general issue, and gave notice, that the mare and colt were his property.

This was an action of ejectment brought to recover a lot of land, called No 31, being part of a lot of 100 acres, situate in the town of Newburgh. The cause came before the court on a bill of exceptions taken at the trial. The plaintiff made out a title in Cadwallader Colden, to the 1 » , lot of 100 acres, of which the premises m question are a part, and the title of the plaintiff, by descent from Cadwallader Col-was admitted.

<p>IN ERROR, cm certiorari to a justice’s court,</p> <p>The defendants in error, who were the plaintiffs in the court below, brought an action against the defendant below, the plaintiff in error, on a subscription, dated the 29th of March, 1814, by which the subscribers promised to pay to the plaintiffs 20 dollars, for each share of the stock annexed to their respective names, in such property as should be designated at the time of subscribing, with a proviso, that the agreement was to be void, if the road should not he completed in the year 1815. The x. defendant below subscribed one share, in neat stock, or grain, The defendant below having pleaded the general issue, and denied the existence of any such company, the only evidence of that fact produced on the trial, was the appointment of inspectors by the governor, (and that by proving his handwriting only,) and the certificate of the inspectors, that the road was completed, and that gates were erected. The whole matter was submitted to the jury, who found a verdict for the plaintiffs below, for 20 dollars.</p>

IN ERROR, to the mayor’s court of the city of NewYork.. v J The defendant m error brought an action of assumpsit, in the court below, against the plaintiffs in error, as the bailees, for hire, of certain horses, saddles and bridles, chairs and harness, Thp rpx lie 1 c for going a different journey from that for which they were hired, and for riding and using the same improperly cord stated, that the defendants had leave to imparl until the third Monday of August, 1815, on…

IN ERROR, on Certiorari to a justice’s court. 7 J The defendant in error brought an action of trespass in the court below, against the plaintiff in error, for taking a horse out the harness, while in the possession of the plaintiff below, (the defendant in error.) The defendant below, having proved that the horse was his property, the plaintiff proved, that he, as of certain premises in the occupation of one Soule, had regularly distrained' the horse for rent arrear, while…

IN ERROR, on certiorari to a justice’s court. The plaintiff in error brought an action in the court below, against the defendant in error, “ for keeping up a mill-dam on the Susquehannah river, below the lands of the plaintiff, whereby the water of the river was set back, and flowed the plaintiff’s land,” &c. The defendants pleaded in abatement, that the land on which the mill-dam was erected, and the mills appurtenant thereto, were held in joint tenancy by the defendants,…

THIS was an action of trover, for certain .articles of household furniture, specified in the declaration.

IN ERROR, on certiorari to a justice’s court, The defendant in error brought an action of trespass on the case, in the court below, against the plaintiff in error, and declared for an imury done by the defendant below, in firing a j j j o ^ pigt°l and w'ounding his leg.

IN ERROR, on certiorari to a justice’s court. The plaintiff in error brought an action of trespass da bonis asportatis, in the court below, against the defendant, in error. The defendant justified under a warrant of distress for rent, and judgment was rendered in his favour. The objections presented, on the return to the certiorari, were, 1. That the warrant of distress was proved by parol evidence only, whereas it ought to have been produced on the trial. 2.

THIS-was an action of ejectment brought to recover part of a farm in Minden9 in the county of Montgomery, and was tried before Mr. Justice Spencer, at the Montgomery circuit, in August, 1816. The plaintiff gave in evidence a deed from Abraham Van Alstine, jun. and his wife, to the lessor of the plaintiff, dated April the 6th, 1812, and proved that Van Alstine had been in possession of the farm for many years before, claiming and using it as his own.

THE defendant in error recovered a judgment in a justice’s-court, against the plaintiff in error; and the plaintiff having . , * _ , drought a certiorari, and assigned errors, the defendant pleaded t0 the assignment of errors, two pleas: 1.

THIS was aii action of assumpsit. The cause was originally « o j commenced in the court of common pleas of Dutchess county, 1 J 7 an¿ the bill of exceptions taken at the trial in the court below, was removed into this court by writ of error. A venire facias de novo being awarded out of this court, the cause was tried before Mr. J. Yates, at the Dutchess circuit, in September, 1816. The plaintiffs declared for services rendered to the defendant’s intestate, as his attorneys.

THIS was an action of assumpsit, brought to recover back money paid by the plaintiff to the defendants, on an agreement for the sale and conveyance of land by the latter to the former, i J The cause was tried before his honour the chief iustice, at the ° Jefferson circuit, in June, 1817. d> * 1 The defendants, by ah agreement dated the 19th January, 1814, executed by their authorized agent, agreed to sell and convey, by good deed, to the plaintiff, certain premises in…

THIS was an action of trespass, and was tried before his honour the chief, justice, at the Albany circuit, m April, 1817. The declaration was for taking certain goods and chattels of the plaintiffs. The defendants severally pleaded the general issue, and the defendant, Clarke, gave notice, with his plea, that the goods were seized under an execution on a judgment which he had recovered against Wilbur and Barnett.

IN ERROR, on certiorari to a justice’s court, The plaintiff below obtained a judgment, before a justice, r , against one Sheldon, lor 12 dollars and 70 cents, on which an ° ecution was issued. On the trial, one Spire, a constable, fied, that he received the execution from the plaintiff, with rections to take security for the amount, rather than to carry Sheldon to gaol.

IN ERROR, on certiorari to a justice’s court. The plaintiff in error had an account, for work, against the defendant in error, which the latter paid, and took the receipt the plaintiff in error, for 24 dollars and 90 cents* In Jvovember, 1815, the plaintiff in error brought an action against the defendant in error, on his account, and recovered judgment. It did not appear that any defence was made.

IN ERROR, on ¡certiorari to the court)of general sessions of the peace of the county of Oneida.

This was an action of ejectment, brought to recover part of lot No. 97, in the towp of Pompey, in the county bf Onondaga.

IN ERROR, on certiorari to a justice’s court. The action in the court below was founded upon a judgment rendered before another justice six years before this suit was commenced. Tim only question raised was, whether a suit on a judgment in a justice’s court was barred by the statute of limitations. The eause was submitted to the court without argument.

IN ERROR, on certiorari to a justice’s court. The defendant in error brought an action, in the court below, the plaintiff in error, by summons, which was returned by one De Grote, who is stated to be a constable, in these words; J b 56 personally, as the law directs, by. me, S* De GroteS* The cíefendant below, by his attorney, appeared on the return of the for the purpose of objecting to the constable’s return, and the objection was made and overruled, by the justice, who…

THIS cause having been set down for a hearing, on the part . , i r rr • I , °. r of the respondent, 1. Hamilton, now moved to brmg it 1 ° to a bearing. The appellant had not aet down the, -cause for hearing.

THESE causes came before this court on writs of error, to the supreme court. The facts in all were, substantially, the same. (See Merrit & Merrit v. Clason. 12 Johns. Rep. 102.) Townsend, a broker, was employed by Clason, a merchant, in the city of New-York, in February, 1812, to purchase a quantity of rye for him.

<p>Where an insolvent st whom suits were pend* me, conveyed land to uia t>ro®í|q™the0]Pr,c(®f p”,®®^ appeal to tmva ««“conveyance «me ‘bépt°^ big no proof that “hen3 eiteCbore g™n!n™tuiConsession, making erections andrectiiviogtiterente and profits, ft that vowIUasnaram“t purchS^onhe iSral execu.gr°“to?”“3t the atAaP“sberiff'3 jndgmeirtdeoft6a titled to the betute or frauds, equally as the creditorhimself, and maysupporfc a bill to set aside a previous fraudulent conveyance. The statute of frauds, as far as relates to fraudulent conveyances, is an exposition ot the common law. Whether a deed, fraudulent on the part of the grantor, can be set aside, where the grantee is a bonajide pire*</p>

THIS was an appeal from the court of chancery. The ap* *•A supreme court, at the suit of the defendants Benjamin Tallmadge, John Tallmadge, David Wadham, David Thompson, Garret Smith, Aaron Smith, Junius Smith, and William S. Tallmadge, for the sum of 2,627 dollars, and 24 cents, or thereabouts ; Lyon, with the defendant Solomon Dewey, on the 31st of March, 1808, executed to the defendant Jonathan Richmond, then sheriff of Cayuga, a bond for the gaol liberties, to be -till…

<p>THESE were original and cross suits in the court of chan- ° eery. Samuel Osgood and Mary his wife, the sole surviJ ° v ving executrix of the last will and testament of Walter Frank- © lin, deceased, her former husband, in November, 1808, filed a bill in the court below, in which they stated that Walter Franklin, being the owner of a large real and personal estate, on the 21st of February, 1778, made a will, containing the following clauses: “ The whole residue of my estate I give and bequeath as follows: one eighth part 1 order put out on interest, as soon asean be done, or by degrees, as it is divided; and the interest that is made therefrom, 1 order to be paid to my sister Sarah Corsa, yearly, as long as she lives; at her death, 1 give the whole of the interest and principal thereof to her daughter, Mary Corsa, to be paid her when she has attained to twenty-one years of age, or is married and has a child or children, which child or children is to be her heirs, and to receive that eighth, if she dies before it’s paid her; but if she dies and leaves none, then I give that eighth to my daughters, Maria and Sarah Franklin, or the survivors of them. One other eighth I give the use of to my sister Mary Wistar, as long as she lives, and after her decease, I give it to her four children, Thomas, Catharine, Sarah, and Mary Wistar, or the survivors, share and share alike. And I give to my dearly beloved wife, Mary Franklin, one eighth part. And to my dear daughters, Maria and Sarah Franklin, each one eighth; and if one dies without children, the survivor of theni t° have that one’s eighth; but if they both die in their non-age, and leave no children to receive their parts, then I order their shares of the residue to be given my brother John’s son, Waller Franklin; and to my brother Thomas’ son, Walter Franklin, or their heirs, share and share alike. And I give my brothers, John Franklin, Thomas Franklin, and Samuel Franklin, the other three eighths, being each one eighth. And I order that the money and effects be distributed and divided, from time to ' time, as it can be raised from my debts and estates, by my executors hereafter named; but they are to be careful to keep a. sufficiency undivided to pay oil all legacies as they become due, and to keep the estate as much on interest or rents as they can, for the general benefit, and to be careful to take such securities for the money as they think is certainly good, by mortgages or personal sureties : some security to be.taken to every single per- • son’s bond. Item. I do hereby appoint my dear wife, Mary Franklin, with my three brothers, John Franklin, Thomas Franklin, and Samuel Franklin, to be executors of this my last will and testament, but on this express condition and proviso, that if they owe me any money at the time of my decease, either by bond, note, or book-debt, that my appointing them, and their acting as executors, shall no way clear them from paying said debts to my other executor, or executors, but the same by them shall be paid for the general benefit of my estate; and if they, or either, do not act on this condition, then they are not to be my executors. 1 give to my executors that may act, and to the major part of them, their heirs or executors, full power to sell, and to assign, and convey away any or all my houses, lands, and tenements, and that forever, that are not already given away in this will foregoing.’’ The bill further stated, that the testator died on the 1st of August, 1780, leaving his will in force, of which Samuel and John Franklin alone undertook the administration, and were the only acting executors as long as they lived, respectively, the latter dying in September, 1801, and Samuel Franklin, in September, 1807; and during this time, from the personal effects and sales of lands, they received very large sums of money, which they employed in trade: that the three executors named in the will, jointly, and John and Thomas Franklin, separately, were indebted to the testator in large sums of money, which are still unpaid: that the plaintiff, Mary, the widow of the testator, on the 24t.h of May, 1786, married the plaintiff, Samuel Osgood; that after the death of Samuel Franklin, Osgood and his wife undertook the execution of the will; that the debts of the testator had been paid, and legacies discharged, excepting the residue of his estate ; that John and Samuel Franklin were, at the time of their death, indebted to the estate for money and property, received by them as executors, which debts were still unpaid; that the complainants had endeavoured to convert into money all the remaining property and debts in order to make a final distribution of the same according to the will: that they had sold the residue of the real estate, not specifically devised, and not before sold, for the sum of 25,000 dollars, which they had received; and which, with the sum of 347 dollars, was all that they had received ; that Thomas Franklin was dead, and his executors made defendants that the other defendants in the bill stood in situations by which, under the will, and in consequence of births,-deaths, and marriages, they claimed, or might be entitled to some share of the residue of the estate; that the executors of Samuel Franklin were insolvent, and that some of the executors of John Franklin were also insolvent.</p> <p>The objects of the bill xvere a discovery and account from the executors of Samuel, John, and Thomas Franklin, and for a distribution of the residue of the estate by a.decree of the court.</p> <p>The ansxvers of the defendants, Dewitt Clinton and Maria his wife, and of John L. Norton and Sarah his xvife, admitted the facts of the bill: the answers of the other defendants admitted the facts stated in the bill, excepting certain matters immaterial to the questions discussed in this court, but insisted that the sale mentioned in the bill of the residuum of the real estate was void for want of power in the executrix, and as fraudulent. The suit was, afterwards, abated by the death of Samuel and Mary Osgood, and was revived by the respondents in the first entitled cause. But previously to their death, viz. on the Pth of June, 1809, a cross bill was filed, (most of the plaintiffs being the defendants in the original suit,) against Samuel Osgood and Mary his wife, Dewitt Clinton, and John L. Norton.</p> <p>The cross bill stated the will of Walter Franklin, by which he appointed Mary Franklin, now Mary Osgood, and his three brothers, John, Thomas, and Samuel, his executors, giving to his said executors, that they might act, and to the major part of them, their heirs, or executors, full power to sell, and to assign and convey away, any, and all, his houses, lands, or tenements, and that forever, not specifically devised in and by his said will: that he, likewise, gave to each of his said executors, who should act, to execute his said will, the sum of .200 pounds, then currency of this state, in lieu of all other commissions and rewards whatever, for executing his said will. The bill then stated several preliminary matters, relating principally to the administration of the will, and the rights and characters in which the complainants sued, and the intermarriage of Clinton and Norton with two of the daughters of the testator, and of Samuel and Mary Osgood, and that Clinton, Norton, and Osgood, had? in right of their wives, become respectively entitled to one eighth part of the residue of the testator’s estate. The plaintiffs in the cross bill then proceeded to state, that among other tracts or parcels of land, part of the residue of the real estate of the testator, which remained unsold and undistributed, at the time of the decease of his executor, Samuel Franklin, were the following, to wit: 3,800 acres, or thereabouts, in one or all the counties of Otsego, Schoharie, and Montgomery; 4,400 acres, or thereabouts, in the same counties; 4,600 acres, or thereabouts, in one or all the said counties ; a tract of land on or near Lake George, the quantity of acres in which was unknown to the plaintiffs ; 850 acres situate, as the plaintiffs understood, in the town of Queensbury, in the county of Washington i 12 lots of land situate, as they had understood, somewhere on the Susquehannah, but they were ignorant of the quantity of acres; also, a tract containing, as they had understood, about 5,000 acres, situate, as they had understood, at or near Hillsborough, in the state of Vermont; one other tract of about 5,000 acres, situate, as they had understood, at or near Reading, in Vermont; and one other tract of about 1,000 acres, situate, as they had understood, at or near Holton, in Vermont; nine rights in the township of Cavendish, in the state of Vermont; and one other tract, containing, as they had understood, fourteen rights in the township of Draper, in the same state, but they were ignorant of the quantity of acres contained in the two last mentioned tracts. That they had been informed, and believed, that there were other tracts of lands belonging to the residue of the testator’s real estate, situate in different parts of the states of New- York and Vermont, and others of the United States ; and that the title deeds, &c., of the residue of the testator’s real and personal estate, were in the possession of the defendants, some or one of them, for which reason they could not give a more particular description; and they stated, that the several tracts of land referred to, were of the value of 200,000 dollars, at a fair and reasonable valuation, and according to the prices the same would bring, upon a just and fair sale thereof to the best advantage ; and that that sum of money might have been, and could then be obtained for the same, if reasonable pains, and proper and necessary measures, were taken for the disposal thereof. The plaintiffs then stated that they had been advised, that Mary Osgood had not any legal power or authority, under the will of the testator, as the surviving executrix thereof, to sell the residue of his real estate, and that, therefore, the sale made by Osgood and wife was void in law: but, that, should they be mistaken in this particular, they contended and insisted, that the sale should not be carried into effect, inasmuch as Osgood and wife, and Clinton and Norton, well knowing the value of the premises, had corruptly and collusively agreed among themselves, for the purpose of defrauding the plaintiffs out of their just proportions of the residue of the real estate, that Osgood and wife, under the supposed authority to her, should convey all the said residue to Clinton and Norton, for the inadequate and small sum, when compared with the real value of the property, of 25,000 dollars ; that in pursuance of such corrupt and fraudulent agreement, Osgood and wife executed a conveyance, or conveyances, in fee, to Clinton and Norton, for ^le smaU and inadequate consideration of 25,000 dollars, which sum they are desirous of distributing among the plaintiffs, and those interested in the residuary estate, as and for the whole value thereof; and they charged various corrupt motives, and secret and fraudulent trusts, against the defendants. The plaintiffs further alleged, that the several tracts of land conveyed as aforesaid, and particularly those situated ini the state of New-York, were in parts of the country thickly settled, and to which access could easily be had ; and that, therefore, the fraud practised upon them in the said state is the more palpable, as nothing but negligence so gross and wilful as to render the said Samuel Osgood, and Mary his wife, "responsible to the plaintiffs, for the whole value of the said lands, could have prevented them from ascertaining the real value thereof. The bill charged fraud or gross negligence iii the sale, and prayed that it might--be set aside, and that Osgood and wife might account, &c.</p> <p>The answer of Osgood and wife, filed the 29th of September, 1809, to the cross-bill, stated the power in the will to be as follows : “ I give to my executors that may act, and to the major part of them, their heirs, or executors, full power to sell, and to assign and convey away, any, or all, my houses, lands, and tenements, and that forever, that are not already given away in this will foregoing;” but the defendants had not the original will in their power or possession, and did not know where it was, unless it was in the possession of the representatives of Samuel or John Franklin. In the part of their answer which related to the real estate, and which is all that is necessary to be here detailed, they stated, that among the papers relative to the estate of the testator, handed them by the plaintiffs Abraham and John Franklin, the executors of Samuel Franklin, were certain deeds, to wit, a deed executed by Peter Dubois, Samuel Verplank, Janies Duane, Henry White, and Jacob Walton, to the testator, Walter Franklin, in fee, dated the 3d of November, ’ 1772, for 12 lots of land, containing 3,800 acres, or thereabout, situated on the south side of the Mohawk river; another deed between the same parties, of the same date, for 4,400 acres, or thereabout, situated on the south side of the Mohawk; and another deed to the testator, in fee, executed by Verplank, Duane, White, and Walton, bearing date on or about the 5th of January, 1775, for 14 lots in the county of Tryon, containing 4,600 acres, or thereabout; that they believed that considerable parts of these three tracts were sold by the-testator, in his lifetime, or by Samuel Franklin, as his executor, and that the conveyances by Samuel Franklin were either absolute conveyances in fee, or perpetual leases or conveyances in fee, charged with some small and nominal rent, or were agreements that the purchasers should take possession, and that, when a title should he given, the improvements should be valued by persons mutually chosen, and be allowed and paid for; but the defendants had been unable to ascertain how much, and what parts, had been sold and conveyed by the testator and Samuel Franklin, and in what manner, and that Abraham and John, the executors of Samuel, had refused to give them any information on the subject; and that the whole, or nearly the whole, of those tracts is covered, with settlers, or actual occupants, who claim title, and refuse to exhibit their deeds, and to give any information in what manner they derive title. That Samuel and John Franklin, as executors, some time between the years 1790 and 1795, offered these tracts, or so much as remained unsold, for the original price given for them by the testator, being about 5,000 dollars; and-, in particular, offered them for sale to James Duane, late of the city of JVezo- York, who refused to purchase them at that price, and that Samuel Franklin offered them to the defendant Samuel Osgood for that sum, who refused to purchase at that price, thinking it too high, and beyond the just value of the land, though he supposed the title to be good; and that the said Samuel and John could not procure the sum demanded by them; that the defendants could not ascertain that the original grantors had any title to those tracts, and all that they could ascertain was, that they were purchased by the testator, at public auction, about the times when the deeds bear date ; that the executors of Samuel Franklin, on application for that purpose, gave no information, but said that they knew nothing about the subject, and had no deed or papers relating to it; that Samuel and John Franklin, or their testator, never had any actual possession of the said three tracts ; and that, according to the best of the information and belief of the defendants, the grantors never had any possession; and the defendants being unable, after diligent inquiry and examination, to discover any title in the grantors, or any thing to show that they had title, concluded, and believed, that they never had any right or title to the lands, or, if they ever had, that the muniments and evidence thereof had been wholly lost, which opinion and belief they entertained at the time of the sale and conveyances herein after mentioned, and they still believe the same to have been correct; that the whole of the said tracts were settled by persons who had been in possession for different periods, from nineteen to twenty-five years, and upwards, claiming title to the parts which they hold ; and the defendants said, that a great part has been lost by the adverse possession of the tenants, which was the real belief of the defendants at the time of the salé hereafter mentioned, and was still their belief; that they received from the executors of Samuel Franklin, a deed from John Brandon to Walter Franklin, dated the 4th of July, 1771, for an island in Lake George, containing 100 acres; and another deed from Joseph Fairlie, dated the 4th of February, 1771, for 200 acres on a neck of land on Lake George ; that if the title to those parcels were good, the land was poor, and not worth more than 300 dollars ; that they know nothing of any land in Queensbury, in the county of Washington, belonging to the estate" of Walter Franklin ; that they received from the executors of Samuel Franklin a deed to Walter Franklin, for 2,363 acres of land on the Susquehannah, in 12 lots, which land is rough and of no great value, and some of the settlers claim title by possession ; also deeds for lands in the state of Vermont, in Hillsborough, Reading and Holton, being 11,000 acres in the whole ; a deed for nine rights in Cavendish, and a deed for 14 rights in Draper, in the same state ; that several of the titles were under the state of JVcrc- York, and were lost when Vermont became an independent state ; that a considerable part of the lands has been sold for taxes, or lost by adverse possession, and for these causes, according to the best information and belief of the defendants, the title to all the lands in Vermont had become entirely lost and extinguished, excepting about 2000 acres in Cavendish, which was mountainous, and of little value, and the settlers on which dispute the title of Walter Franklin; that, to the best of their knowledge and belief, there were no other lands belonging to the estate of the testator, and they were satisfied that there was no land of his in the county of Greene. The facts abo ve stated, they said, were all the information they could obtain respecting the residuary real estate of the testator, but they considered the three tracts of land first mentioned as the prineipal, and by far the most valuable part. The defendants further said, that Samuel and John Franklin did not, while they, or one of them, were acting executors, take any care whatever of the lands composing the residue of the real estate of the testator, Or take any measures to preserve the title, or to obtain or defend the possession ; that their only acts were sales and dispositions of sundry parts thereof, made to persons who came to the city of New- York, and applied to them for that purpose, and the payment of some taxes, in a few instances ; that during a period of more than 27 years, during which they jointly, or Samuel alone, were acting executors, the lands were left exposed to intruders and settlers, were not in the possession or actual care of any person, on behalf of the estate, and became covered with settlers, or actual occupants, commonly called Squatters, all of whom claimed title to the lands which they occupied, and many of whom had probably acquired a good title, by lapse of time and length of possession ; and the defendants expressly alleged, and charged, that the largest and most consider-able and valuable parts of the lands had been lost, and the title extinguished, by the gross negligence of Samuel and John Franlclin ; and they said, that they understood, and believed, that the whole, or a large part, of the lands situate in this state was subject to the payment of quit rents, of which large arrears were due. The defendants further said, that when they had obtained all the information in their power respecting the lands, and that no part could be recovered without litigation and expense, they considered and resolved, that it would be the most prudent course for them, and the most beneficial for the estate, to sell the whole residue of the real estate in a mass, if they could obtain a fair and reasonable price for the same; and the defendants so being of opinion, and believing that it would be. most proper for them, and most beneficial for all parties interested, to sell the same together, also thought it expedient that the same should be sold as soon as might be, to prevent the injurious consequences of farther delays ; and they were also desirous to discharge themselves wholly of the trust, and believed that it would be for the advantage of all concerned, that the unsettled affairs of the estate should be closed with all convenient expedition, and, for these reasons, proceeded to offer the residue of the real estate for sale, and about the 1st of June) 1808, agreed to sell the same to Dewitt Clinton and John L. Norton ; that on or about the 11th of June, 1808, in virtue of the power conferred upon the executors of Walter Franklin, they executed two deeds in fee, one to Norton, for two third .parts of all the residue of the lands and real estate of Walter Franklin, not before disposed of, and the other to Dewiti Clinton, for one third part of the same ; in the deed to Clinton, one third part of the sum of 25,000 dollars, and in that to Norton, two thirds of the same, being expressed as the consideration respectively, and that the whole of the consideration was paid, in cash, by Norton and Clinton, at the time of executing the deeds. The defendants, fully and absolutely, denied all fraud or secret trust in the sale.</p> <p>The answer of De Witt Clinton, filed 26th September, 1809, to the cross bill, stated, that all the title-deeds, &c. did not go into the hands of Osgood and wife : that the deeds from the original patentees to Peter Dubois, through whom the title to the lands in Cherry Valley was derived to Waller Franklin, never went into the hands of Osgood and wife, the same being supposed to be lost, until the defendant recently discovered them in the hands of William North, Esq. which supposed loss tended very materially, in the estimation of the defendant, to diminish the value of the lands. He then stated, that in the spring of 1808, Norton applied to him to be concerned in the purchase of the residuary estate of Walter Franklin, at the price of 30,000 dollars, which the defendant thought so high that he would have no concern in it; that some time after, he was informed, that it might be purchased for 25,000 dollars, and was offered an interest, and became purchaser with Norton, and their deeds were dated the 11th June, 1808. The answer denied any fraud, and stated,' that under the circumstances, the property was not worth more than 25,000 dollars, and»that a larger sum could not then have, been obtained, and that the defendant, hearing that Osgood was desirous to rescind the bargain, offered to give it up, but that Osgood refused. The answer further stated, that the defendant believed, and had understood it to be the opinion of counsel, that Mary Osgood was authorized to sell, as surviving executrix, and that the sale by Osgood and wife was valid, but that if the court should consider her as' unauthorized, it would confirm the sale, if found to be fair, bona fide, and for an adequate consideration, and that it would decree the plaintiffs, or those authorized, to execute conveyances to him and Norton. It stated, that the only tracts of much value, lie in Sharon, Schoharie county, Canajoharie, Montgomery county, and Cherry Valley, Otsego county; but what portion was in each the defendant did not know : that these lands are commonly called Cherry Valley lands, and were part of the patents to Philip Livingslan and others, and to Frederick Young and others, conveyed by Peter Dubois and his trustees, to Walter Franklin ; the first of which tracts, in Livingston’s patent, contained'about 3,800 acres ; the second contained 4,400 acres, or thereabouts, and the third, 4,600 acres, both in Young’s patent i that these tracts lay in a hilly, rough country, and the soil was not of the first quality, but the country was considerably settled : that the defendant had understoqd, that part of those lots was sold by Walter Franklin ; that the person in possession of lots 4, 7,12,14, of about 400 acres each, claimed, under one Samuel Hake, who was said to derive his title from W. Franklin, but the defendant did not know whether the claim was good: that he had understood that W. Franklin conveyed 160 acres to one Campbell, 128 to one Foster, and 400 to Dionysius and John Miller, and the persons in possession claimed, under him, adversely to the right of the defendant and Norton : that the defendant had understood, and did believe, that Samuel Franklin and his agents, authorized settlers to occupy the lands without rent, and promised to pay for the improvements, if they should not become purchasers, which improvident and unauthorized arrangement, had diminished the value to the defendant and Norton, as some occupants claimed high compensation therefor, or a conveyance, at the value when they entered upon it: that the defendant had understood, that a destruction of the timber had diminished the value: that he had understood and believed, that almost all the lands were held adversely to him and JVbrion, as deriving title from Osgood and wife : that he and Norton had been obliged to institute suits for the recovery ofthé possession of a large portion of these three tracts, the result of which he could not foresee, and •that from his imperfect knowledge, he could not tell the value of the part of the three tracts conveyed to them. The defendant then stated his knowledge, in relation to the other lands of W. Franklin, conveyed to him and Norton, of which it is unnecessary to give a detail; it, however, amounted to this, that the lands were, in general, either of little value, or the title bad or doubtful, The defendant stated, that he had, understood it to be the opinion of eminent counsel, that Mary Osgood was entitled to her dower, in all the real estate of which Walter Franklin died seised, notwithstanding the specific devises in his will: that she had actually insisted on her right, which had diminished the value of the said residue, and increased the difficulty of forming a correct opinion of its value, and that no part of the residue of Walter Franklin’s personal estate Was included in the purchase of the defendant and Norton. The answer of Norton was substantially the same as that of Clinton.</p> <p>Both causes being at issue, testimony was taken, under an agreement, that the depositions might be used in both ; and a release of dower of Mary Osgood, was given in evidence, dated the 11th May, 1786, whereby she released to John, Thomas and Samuel Franklin, executors of Walter Franklin, all her right, title, and claim of dower to the estate of the said Walter, except such parts thereof, as were situate in the city of New- York, and on Nassau Island, in the state of New-York.</p> <p>William T. Robinson, testified, that about December, 1806, in conversation with Dewitt Clinton, about the lands of W. Franklin, Clinton told him, that they were worth 100,000 dollars ; that there were numerous settlements on and near them, and eligible spots for public buildings, soon to be occupied for such purpose, which remarks, the deponent, a few days after, mentioned to Osgood. Another witness stated, that he was at Cherry Valley, in July, 1808, and saw Norton there, who was then surveying the lands, and said that he would not take 25 dollars per acre, and that he should not be obliged to bring many ejectments. Several witnesses, being persons living near the Cherry Valley lands, deposed, that in their opinion, these lands were worth from 10 to 15 dollars per acre, in the year 1808. It was testified, that some of the land, lying on the turnpike road, was sold by the agent of Clinton and Norton, in 1809, for 15 dollars : that in 1786, Col. Corsa, who was the agent of the executors of Walter Franklin, left a paper at Cherry Valley, inviting settlers to go on the lands, and if the price could not be agreed for, then, that the improvements should be appraised, and paid for accordingly : that many of the settlers were willing to purchase, if they were satisfied as to the title of Clinton and Norton, but others refused to acknowledge any title in Waller Franklin, or Clinton and Norton, and that in 1808, Clinton and Norton said that their title was good.</p> <p>John Lawrence, a witness for the defendants, testified, that some years ago, he passed through the lands in Cherry Valley, and was at the house of one of the settlers, who said, that they had gone on the lands under some agreement with the executors of W. Franklin, but no title had been given them. That afterwards he was asked by Samuel Osgood, what he would give for these lands, and whether he would give 25,000 dollars; and that the witness told him, that, considering all circumstances, he would not give that sum in cash, for there might be trouble with the settlers.</p> <p>Another witness testified, that in 1786, Colonel Isaac Corsa was at Cherry Valley, and said that he was authorized to sell or lease the lands of W. Franklin, and left a paper containing the numbers of the lots and quantities, and inviting persons to settle on the lands, and that if the lands were sold to any other persons, the settlers should be paid for their improvements, the value thereof to be ascertained by two persons mutually chosen fey the parties; the witness had lost the original paper and had no copy : that fifty or sixty persons, in consequence, settled on the lands, in expectation that the terms of settlement so held out would be fulfilled, and who claim compensation for their improvements. These terms were, afterwards, recognized in a letter of Samuel Franklin, written to some of the settlers the 25th June, 1791 ; and again, the 27th November, 1793, John and Samuel Franklin gave a writing to the same effect, saying, that the settlers should have a preference as purchasers or lessees. Samuel Campbell proved the agency of Colonel Corsa, by the acknowledgments of Samuel Franklin, who, with the other executor, in 1791, conveyed to the witness 150 acres at 2 dollars per acre.</p> <p>Jabez D. Hammond, who was agent for Clinton and Norton, deposed, that in 1808, all the settlers, except a few individuals, refused to attorn to Clinton and Norton; some of them denied their title, and others relied on their own adverse possession, and all refused to give up possession, unless paid for their improvements according to the terms offered by Corsa. That several suits were brought and were still pending: that some of the settlers sold their improvements, for from nine to twelve dollars per acre; that the value of their improvements was, at least, one half the present value of the lands, and that under these embarrassments, the value of the land was nominal only: that the timber had been much wasted: that the average value of the lands in June, 1808, was not more than two dollars and fifty cents: that the whole quantity of the Cherry Valley lands, claimed by Clinton and Norton, was about 12,000 acres, *■ x j besides four lots which had been sold by Samuel Hake, and for which Clinton and Norton had brought suits, which were still pending; if these lots were included, the whole would be about 13,000 acres. He stated that the tenants generally refused to acknowledge the title of Clinton and Norton; that the timber had been wasted, and that the compensation claimed for improvements, in general,- exceeded the price of the land.</p> <p>S. Hiker deposed that 1,900 acres of land lying in Belvidere. patent, in Ostego county, had been sold in 1809, at auction, in the city of New-York, at two dollars and fifty cents per acre, and, on being put up a second time, brought only twro dollars per acre. It also appeared in evidence, that in the lifetime of1 Samuel Franklin, in or about the year 1799, a suit in chancery had been commenced by the executors of Walter Franklin, against the trustees, or the surviving trustees of Peter Dubois, for the recovery of the title deeds of the residuary real estate of Walter Franklin, in which suit several of the title deeds had been brought into court, and were by a decree of the court delivered to Samuel Franklin ; but that the deed or deeds for the Cherry Valley lands were not among those obtained by that suit.</p> <p>In consequence of the deaths of parties, among whom were Samuel Osgood and wife, the cross suit was, also, at three different times, revived against their representatives, the last bill of revivor and supplement being exhibited about the 1st December, 1814. It stated, that after the residuary estate of 'Walter Franklin had been sold to Clinton and Norton, they had sold certain parts thereof, amounting£to more than 110,000 dollars, which had been paid to them partly in money, and partly secured by bonds and mortgages, bearing interest at seven per cent; that they then held a large and valuable part of the residuary estate unsold, and, the plaintiffs, in and by their bill, offered to confirm the sale, on receiving their portions of the purchase money.</p> <p>In the several answers of Norton and wife, and of Clinton and wife, filed in September, 1815, they said that they did not believe that Clinton and Norton had sold of the residuary estate, parcels, amounting to more than 110,000 dollars, but of this they could not speak with any certainty, as they had not received any recent accounts from their agents ; and they admitted that they had sold certain parts, and retained certain parts thereof.</p> <p>The causes came on to be heard in the court below, in September term, 1815, on the pleadings and proofs; and it appearing to the chancellor that the sale and conveyance of the residuary estate to Clinton and Norton was not fraudulent, and that Samuel Osgood and Mary, his wife, in right of the said Mary, as surviving executrix of the last will and testament of Walter Franklin, deceased, had competent power to make the same, it was decreed, that the bill in the cross cause of Abraham Franklin, John Franklin, Thomas Franklin, and others, as against the defendants, Be Witt Clinton and Maria, his wife, and John L. Norton, and Sarah, his wife, be dismissed, with costs to be taxed. The other parts of the decree related to the matters of account, which were ordered to be referred to a master, reserving the question of costs, (except as before decreed,) and all further directions, till the coming in of the master’s report. From this decree the defendants in the original suit, and the plaintiffs in the cross suit, appealed, and the cause coming on to argument in this court, the Chancellor assigned his reasons for the decree; for which, see 2 Johns. Ch. Rep. p. 1.</p>