Volume 16 — Wendell's New York Reports

This is'an action for a libel. The plaintiff, in the introductory part of the first count of his declaration, states that on the first day of October, 1833, an article was published in a newspaper, over the signature of M. B., containing strictures upon the physicians of this country for adopting the theory of an European physician, ascribing nearly all the diseases to which mankind are subject to spinal irritation or inflammation; and that the defendant untruly alleged and…

Error from the Montgomery common pleas. Stanton sued Rickard in assumpsit, declaring for work, labor and services. The defendant pleaded the general issue. The cause was heard by referees, who made a report in favor of the plaintiff for $371,78.

This was an action of assumpsit, brought To recover the price of a pew in a church, sold to the defendant at vendue, tried at the Tompkins circuit in June, 1834.

False imprisonment. The plaintiff declared in the usual form-for an assault, battery and false imprisonment, against the defendant Sherrill and two other persons.

Bennett sued Camp and Ball in a justice’s court in trespass de bonis asportatis, the defendants appeared and pleaded, the cause was tried by a jury, and the defendants obtained a verdict.

The defendant was indicted for forgery. The indictment contains six counts; in the first of which it is stated that he made and forged a promissory note described as follows: “ which said false, forged and counterfeited negotiable promissory note is to the purport following, that is to say—* Ninety days after date, I promise to pay to Anthony G. Badgley or order, fourteen hundred and twenty-eight dollars value received.

<p>Appeal from chancery. William James, on the 24th July, 1832, made and published his last will and testament, . in the following words :</p> <p>1. “ I, William James, in contemplation of the uncertainty of human life, and being desirous of making a just disposition of my property, do make and publish this my last will and testament, in manner following—that is to say:</p> <p>2. “ I give and devise to my wife Catharine 3 ames the mansion-house, now occupied as such by me, in the city of Albany, together with all the appurtenances thereunto.belonging, during the period of her natural life, and with power to dispose of the same by will, to our lineal descendants, in such manner as she may think proper.</p> <p>3. “ I also give and bequeath to my said wife all my household furniture and utensils, including plate, pictures and other ornamental articles in the house, her personal ornaments and wearing apparel; also my horses, harness, carriages and sleighs, and my library.</p> <p>4. “ Desiring that my family after my decease should live respectably, but at the same time prudently and circumspectly, I further give, devise and bequeath unto my said wife, for her own support and for the education and support of our chil- ■ dren, an annuity of three thousand dollars, to be paid in equal quarterly payments, or oftener should she have occasion therefor, during the period of her natural life.</p> <p>5. “ I also give and bequeath unto my said wife the sum of three thousand dollars, to be applied by her towards the maintenance, education and advancement of the children of her deceased sister, Jannette B. Gourley, in such proportions and at such times as she may deem proper.</p> <p>6. “ The foregoing devise and bequests to my said wife are intended to be, and I hereby declare them to be, in lieu and full satisfaction of her dower in my estate.</p> <p>7. “ To my son William James, I give and bequeath an annuity of two thousand dollars, during his natural life.</p> <p>8. “ To my son Henry, I give and bequeath an annuity of twelve hundred and fifty dollars, during his natural life.</p> <p>9. “ To Catharine Tillman, sister of my former wife Elizabeth deceased, I give and bequeath an annuity of one hundred and twenty-five dollars, during her natural life.</p> <p>10. “ To Charlotte James, daughter of my deceased brother John James, I give and bequeath an annuity of one hundred dollars, during her natural life.</p> <p>11. “To Susan Duffy, widow of John Duffy, late of the city of New-York, deceased, I give and bequeath an annuity of two hundred dollars during her natural life.</p> <p>12. “ To my nephew John James, son of my deceased brother John James, I give and bequeath the sum of one thousand dollars.</p> <p>13. “I give and bequeath to the Society for the relief of Orphan and Destitute Children in the City of Albany, an annuity of one hundred and fifty dollars, to be paid by my trustees, hereinafter named, to the managers of the said society, for the use thereof, annually, until my said trustees shall find it convenient, out of the rents and profits of my estate, to invest the sum of two thousand five hundred dollars in some public stock, which I require them to do at some period of the trust hereinafter created; and the stock so purchased shall thereupon be assigned in perpetuity to the said managers, subject, however, to such limitations and conditions, not inconsistent with the object of this bequest, as my said trustees shall prescribe.</p> <p>14. “ The foregoing legacy to my nephew John James shall be paid by my said trustees within the period of fifteen months after my decease; and the legacy of three thousand dollars to my wife, for the benefit of the children of her deceased sister Mrs. Gourley shall be paid in such proportions and at such times as she may desire ; and in the event of her death before the whole is paid, then I order and direct that so much as shall remain unpaid shall be faithfully applied by my said trustees to the purposes for which it is designed, according to their discretion.</p> <p>15. “The said specific legacies-and foregoing annuities are not to be considered as charges upon my real estate, but are to be paid by my trustees hereinafter named, out of the rents and profits of my estate so far as the same may from time (to time) be sufficient therefor; and all my just debts, also all sums advanced to my children and grand-children as hereinafter authorized, before the final division of my estate, and all the expenses incident to the execution of the trusts hereinafter declared, are to be paid in like manner. But if at any time the rents and profits, then already accrued and in the hands of my said trustees, shall be insufficient for these objects, the deficiency shall be supplied out of other funds belonging to my estate, or by temporary loans of money; and all sums thus drawn from the capital or principal of, the trust fund, oi-borrowed, shall be charged against future rents and profits, and be reimbursed therefrom as soon as may conveniently be done.</p> <p>16. “And in the final partition of my estate in the manner hereinafter directed, such of the said annuities as shall not then have ceased shall be effectually secured to the respective legatees.</p> <p>17. “ In order to preserve my estate from being wasted, and to insure its more judicious management, so that out of the rents and profits thereof ample means may be afforded for the purposes above mentioned, and for the support and education of my numerous offspring, and with an exclusive view to the true interest of all for whom it is my duty to provide, I have determined to confide the care and management of my estate temporarily to trustees. In pursuance of these designs, and in view also of the lamentable consequences which so frequently result to young persons brought up in affluence from coming- at once into the possession of property, I have also determined that this trust shall continue, and that the final division of my estate shall not take place until the youngest of my children and grand-children, living at the date of this my will, and attaining the age of twenty-one years, shall have attained that age. And in order moreover to provide against accidental inequalities and diversities of condition, which at the expiration of the trust may exist among the cestuis que trust, but more especially with a view to discourage prodigality and vice, and to furnish an incentive to economy and usefulness, I have further determined to invest my trustees with extensive discretionary powers in regard to the disposition of my property, to be exercised by them with a just regard to circumstances, and especially to the respective merits of the several cestuis que trust hereinafter mentioned.</p> <p>18. “ I, therefore, appoint Gideon Hawley and James King, Esquires, and my son Augustus James, of the city of Albany, my said trustees : and I give, devise and bequeath to them, the said Gideon Hawley, James King and Augustus James, all my estate, both real and personal, of which I shall be possessed and entitled to devise and bequeath at the time of my death, and not herein before devised and bequeathed to my wife: in trust, to manage and dispose of the same, and to receive and apply the rents, issues and profits, proceeds, interest and income thereof, in the manner hereinafter directed and expressed.</p> <p>19. “ As soon as it may be deemed proper, and within one month after my decease, my said trustees shall proceed to make a full and particular inventory of the trust estate, arrang¡ng the different descriptions of property under different appropriate heads; and shall immediately file a true copy thereof, attested by their oaths to be a just and true l y v inventory of all my estate, both real and personal, as far as the same shall have come to their knowledge, and they have been able upon diligent examination to ascertain, in the office of the surrogate of the county of Albany ; and in case any other property belonging to the trust fund shall after-wards come to their knowledge, they shall in like ‘manner make and file an inventory thereof.</p> <p>• 20. “ And with a view to the more prompt, systematic and easy performance of the various duties connected with the trust, it will be proper that they allot and distribute among themselves the details of the business arising therefrom.</p> <p>21. “It is, however my wish, and I accordingly direct, that my son Augustus shall succeed me as a partner with Moses De Witt Burnet, of the village of Syracuse, in his lease of the salt works and flouring mills in that village, and that he shall attend particularly to the business of the firm, as an active partner in the city of Albany, in the manner now done by him and me. So long as he does this, he shall be entitled to receive, to his own use, the whole share of the profits of the partnership to which I am now entitled ; he paying the proportion of the rent that may accrue upon the said lease, which by the agreement between the said Burnet, Isaiah, Townsend, John Townsend and myself, I am obligated to pay.</p> <p>22. “ It is my wish also that my son Augustus shall be charged with and take upon himself the collection of all rents accruing to the trust estate, as well elsewhere as in the city of Albany, and that he shall continue to perform this duty so long as in the opinion of my other trustees he shall execute the same properly. And for the performance of this service I authorize him annually to retain to his own use, such reasonable per centage upon the amount collected, by way of commission, as the other trustees shall deem it proper to allow.</p> <p>23. “ It is also my will, and I accordingly order and direct, that in addition to the particular and exact accounts which must necessarily be kept by each of my trustees in regard to all matters of which they shall severally have the special charge, a full and accurate general account shall always be kept, by one of my said trustees, of the whole business of the trust; whose duty it shall also be, at the expiration of each year, to furnish each of the other trustees with an accurate transcript of such account, or of so much thereof as shall exhibit in a satisfactory manner the transactions relative to the trust during such year. And it is my wish that this duty shall be undertaken by my trustee Gideon Hawley, and performed by him so long as he shall continue to reside in Albany and to act as one of my trustees. To this end I order and direct that full and exact reports shall be made to him while he shall continue so to reside and act, and afterwards to such other discreet person as may be appointed to succeed him in the performance of this duty, by each of my other trustees respectively, at least as often as once in each year, of all their proceedings, receipts and expenditures, in the exercise of their respective functions during such year. And I further order and direct that he shall have the immediate custody of all deeds, mortages, bonds,' notes, and other evidences of title and of debt, and that all moneys belonging to my estate shall be paid to him, either directly or by my other trustees respectively, from time to time, without "unnecessary delay, as often as such moneys shall have been received by them.</p> <p>24. “ It is also my will, that so long as my trustee James King shall continue to reside in Albany, and to act as one of my trustees, he shall be charged with and take upon himself the collection and securing of. debts and demands belonging to my estate, for. the collection or securing of which professional services may be required.</p> <p>25. “It is, however, my express will and intention, that no one of my trustees shall, severally, have the power to perform any acts or duties whatsover in relation to my estate, or concerning the execution of the trust hereby created, excepting what pertains to the final distribution of my estate as hereinafter expressly provided, and excepting such subordinate acts as a trustee may lawfully perform by an agent, and which a majority of the other trustees shall have duly authorized him to perform as such agent; and I do further declare and direct that no sale or transfer shall be made of any part of my estate, real or personal, and no investment be made of any of the funds of my estate in the purchase of any property, real or personal, without the consent of a majority of the trustees; and I do hereby authorize and empower the majority of the trustees consenting to such sale, transfer or investment, to make and execute the necessary conveyances, instruments and contracts to carry the same into effect, without the concurrence of the other trustee, or by an instrument under their hands and seals to appoint and authorize one or more of their own number to execute the same.</p> <p>26. “I further order and direct that my trustees shall proceed as expeditiously as is consistent with a just lenity to my debtors, to collect all debts due to me at the time of my decease, or to see that such debts are made secure.</p> <p>27. “ They shall also sell all my real property in all places other than the cities of New York and Albany, and the village of Syracuse, as fast as fair prices can be obtained therefor; "and I hereby authorize them also, at their discretion, from time to time, to sell or exchange portions of my real estate in the said cities and village. I also empower them to invest so much of the proceeds of all sales, and of all other moneys which shall come to their hands,'as may not be wanted to enable them to fulfil the other purposes of the trust and to pay legacies and debts, in the purchase of real estate, or in the erection of houses in either of said cities, or in the village of Syracuse, or in loans, annuities, or any other safe and proper manner: but they are, nevertheless, to bear in mind and keep steadily in view that my will and intention is, that investments shall from time to time be so made, as that at the time appointed for the ultimate division of my estate, the same shall consist chiefly or altogether in real estate.</p> <p>28. “ For the doing and executing of all which, and for the doing and executing of all other acts and things nenessary to the prudent management of my estate, and consistent with the declared objects of their trust, I hereby invest them with full power and authority.</p> <p>29. “ For the better education of my children who may be minors at the time of my decease, I give and dispose of the tuition and custody of them and each of them to my said wife, for such time as they or any of them respectively continue unmarried and under the age of twenty-one years; but if my said wife shall die during the non-age of my said children, then I give the tuition and custody of those so being under the age of twenty-one years at the death of my wife, to my trustees for the time being, who are to make suitable provision out of the rents and profits of my estate for their education and support, according to their several ages and exigencies.</p> <p>‘ 30. “ In the event of the death, during the continuance of the trust, of any one of my sons now living, leaving a widow and a child or children, or a child or children only; and in the event of the death of any one of my daughters leaving a child or children, my trustees are authorized and required, if necessary, to make suitable provision out of my estate for the support of every such widow and for the education and support of every such child, according to circumstances and to their respective exigencies ; provided, however, that such provision shall not exceed in any case the allowance of fifteen hundred dollars a year to the widow and children of any such deceased son, or to the children of any such deceased daughter.</p> <p>31. “If, during the continuance of the trust, either of my sons, or of my grand-sons whose parent being my son or daughter, is deceased, having attained the age of manhood, shall desire to establish himself in any reputable profession or trade, and shall have need on that account of money for the purchase of professional books, implements or the like, or if he shall desire to purchase real property in the city or town where he may reside or intend to reside, for his own accommodation and use, or, to a moderate amount, with a view to speculation, in every such case I authorize my trustees, with the approbation of my wife, if she shall be living, at their discretion, to advance to such son or grand-son such sum or sums for either of these purposes as they may think fit; but such advance to any one individual shall not in the whole exceed the fourth part of the probable amount to which such individual will be entitled upon the ultimate division of my estate.</p> <p>32. “ If, during the continuance of the trust, either of my sons, or of my grand-sons whose parent being my son or daughter is deceased, having attained the age of manhood, shall desire to engage in any honorable occupation requiring the employment of capital, and if in the opinion of my trustees for the time being, and of my wife, if she shall be living, it shall be expedient that he should do so, I authorize my said trustees at their discretion to advance to such son or grand-son a sum or sums not exceeding in the whole the fourth part of the probable .amount to which such son or grand-son will be entitled upon the ultimate division of my estate.</p> <p>33. “ And if, during the continuance of the trust, either of my daughters, or my grand-daughter Mary Ann King, shall choose to marry, and provided she shall have at all times previously behaved du.tifully and affectionately towards my wife and her other relatives, and if on account of her marriage it shall, in the opinion of my trustees and of my wife, should she be living, be in all respects fit and proper that such daughter or grand-daughter should then receive a portion of my estate, I authorize and require my trustees to pay to her a sum not exceeding three thousand dollars; and I further authorize them, if it shall satisfactorily appear to them to be necessary, to advance to her from time to time such further sums, not exceeding two thousand dollars in any one year, for her support and the promotion of her welfare, according as the exigencies of her case may in their opinion require. And in like manner, upon the marriage of either of my grand-daughters, Anna M’Bride James, daughter of my son William, or Lydia James, daughter of my deceased son Robert, I authorize and require my said trustees under the like circumstances and upon the like conditions to t pay. to her a sum not exceeding two thousand dollars.</p> <p>34. “In order to entitle my several sons, John, Edward, and Howard, and my grand-son Robert, son of my deceased son Robert, to the full benefit of the provisions hereinafter made for them, they must severally learn some one of the professions, trades or occupations usually pursued in this country as a livelihood, and must assiduously pursue and practice the same.</p> <p>35. “ For the purpose of inculcating habits of industry and economy, I order and direct that all sums of money advanced by my trustees during the continuance of the trust, to . or on account of any one of my sons and daughters, grand-sons and grand-daughters, shall be charged against them respectively as debts due to my estate; and that upon the final division of the residue of my estate as hereinafter directed, the sums so advanced to each, together with compound interest thereon at the rate of five per cent, per annum, shall be deducted from the respective shares of those to whom such advances shall have been made.</p> <p>36. “ I give, devise and bequeath to the children of my son Augustus and his present wife Elizabeth ; to my granddaughter Anna M’Bride James, daughter of my son William ; and to ,my grand-daughter Lydia James, daughter of my deceased son Robert, in manner following, that is to say: At some period during the continuance of the trust, and as near the termination thereof as may be found convenient, my trustees shall, out of the rents and profits which shall have accrued out of my estate, purchase productive real property to the amount as nearly as may be of fifty thousand dollars, and shall, at the expiration of the period herein limited for the continuance of the trust, convey the same to such of the said children of my said son and his present wife then living, and in such proportion as my said son Augustus and his said present wife, or the survivor of them if only one shall be living, shall direct; and if neither of them shall be living, then to such of their said children and in such proportions as my said trustees, together with my wife, should she be living and choose to act, may think proper. • And to each of my grand-daughters, Anna M’Bride and Lydia above named, my trustees shall set 0ff anc( convey s0 much other productive real property belonging to my estate'as shall in their opinion be worth twenty thousand dollars.</p> <p>37. “ I further order and direct, that at the expiration of the period herein prescribed for the continuance of the trust, my trustee Gideon Hawley, or such other person as may be appointed in his place in the manner hereinafter directed, together with such other trustees or trustee, if any, as may be appointed in the place of my son Augustus and James King, or either of them, and who shall not be interested in the division of my estate, shall, together with my wife, should she be living and choose to act, immediately proceed to divide the residue of my estate remaining in their hands, not herein before devised or bequeathed, as nearly as may be, into twelve equal parts, and shall allot and distribute, and my trustees shall thereupon convey the same to the persons, and in the proportions following, that is to say ; to my sons Augustus, John, Edward and Ho ward—to my daughters Jannette, Catharine and Ellen—and to my grand-daughter Mary Ann King, each one part; and to my grand-son Robert, son of my deceased son Robert, one half of one part; subject, however, to the conditions, limitations and retributive purposes hereinafter expressed. ,</p> <p>38. “Out of the share to be allotted to my grand-daughter Mary Ann King, or to her heirs, as herein after provided, my trustees shall pay to her father James King, for his own use, the sum of ten thousand dollars, or, at their election, shall convey to him in fee so much of the real estate comprised in such share as shall, by them, be estimated to be worth that sum.</p> <p>39. “ In the event of the death of either of my said sons or daughters, or of my said grand-son Robert, or of my said grand-daughters Mary Ann King, Anna M’Bride and Lydia, or of the said James King, before or after my own decease, within the period above limited for the continuance of the trust, I order and direct that the share or portion of my estate to which such deceased person would, if living, have been entitled, so far as relates to the personal estate, if any, comprised in such share, shall be allotted and conveyed in such manner as if such deceased person had died intestate lawfully possessed thereof, the same would have been bestowed by force of the statutes of this state regulating the distribution of the personal estates of deceased persons who have died intestate ; and so far as relates to the real estate comprised in such share, the same shall be allotted and conveyed in such manner as if such deceased person, having derived such estate from me, or, if a grand-child, from his deceased parent, had died intestate lawfully seised thereof in fee, the same would have descended by force of the statutes of this state regulating the descent of the real estate of persons who die intestate ; subject, however, to the conditions, ^imitations and retributive purposes hereinafter expressed.</p> <p>40. “ If either of my said sons, John, Edward and Howard, or my grandson Robert, shall fail to observe and faithfully to follow the directions herein before given concerning them; or, if at the expiration of the period limited for the continuance of the trust, it shall satisfactorily appear to my trustee or trustees authorized to make the final partition of my estate, that any one of those who would otherwise have been entitled to share in such partition, leads a grossly immoral, idle, or dishonorable life, such delinquent shall not be entitled to the share of my estate herein before provided for such person, but shall be considered as having forfeited the same either wholly or in part; and I do hereby order and direct my trustee or trustees authorized to make partition of my estate, to withhold from such delinquent such share, either wholly or in part, according to the degree of demerit by which such forfeiture shall be incurred ; of which, and of the existence of the facts rendering such forfeiture proper, my said trustee or trustees shall be exclusively authorized to judge ; and the portions of my estate so withheld shall be added to the residuary parts.</p> <p>41. “ As it regards the remaining three and a half parts of my estate, together with such additions, if any, as shall be made thereto in the manner above mentioned, I authorize and require my said trustee or trustees authorized to make partition of my estate, together with my wife, if she shall be living, to apportion the same according to their discretion among all or any number of those herein designated as in any event entitled to share in the ultimate disposition of my estate ; but with a just regard to circumstances and a scrupulous attention especially to the personal merits and demerits of each individual. And my trustees shall execute conveyances, in pursuance of such apportionment.</p> <p>42. “ And although the extensive and extraordinary power herein conferred of punishing idleness and vice, and of rewarding virtue, must from its. nature be in a considerable degree discretionary, and although its faithful exercise may prove to be a task at once responsible and painful, yet it is my full intention and earnest wish that it shall be carried into execution with rigid impartiality, sternness and inflexibility.</p> <p>43. “ In order to provide for the decent maintenance of those (if unhappily there should be any such) whose portions shall be wholly withheld, I order and direct that to every such individual an annuity for life shall be given, of such amount only as shall be sufficient to supply the probable actual wants of such individual.</p> <p>44. “ Having herein before provided for the. division and apportionment of my estate among the several cestuis que trust, but without particularly designating the quantity op interest to be conveyed to them, I now declare it to be my will, and I accordingly order and direct, that every conveyance of any portion of my real estate, to be executed by my trustees upon the expiration of the trust herein created, in pursuance of the foregoing directions, shall be to the grantee for life, with power to devise the same in fee to his or her lineal descendant or descendants, in such manner or proportions as he or she may think proper; and in the event of such grantee either leaving no such descendant, or omitting to make a valid disposition of the same in execution of such power, then with remainder in fee to such person or persons as by the statutes of this state regulating the descent of real property, would have been entitled to inherit the estate, had the grantee, having derived the same from me, died intestate lawfully seised thereof in fee: excepting however the conveyance, if any, to James King or his heirs, which shall be in fee ; and the conveyances, to such of my descendants, if any, entitled to share in the division of my estate, as, by reason of their having been born subsequently to my decease, may be incapable of taking less than an estate of inheritance, which conveyances shall also be in fee.</p> <p>, 45. “ It being my intention that there shall always be three acting trustees of my estate during the continuance of the trust, all of whom shall reside in the city of Albany; I do hereby direct that in case any one or more of the trustees shall refuse to act or become incapable of acting as such, or shall resign, remove from the city of Albany, or die, it shall be the duty of the remaining trustees to apply by petition to the Chancellor for the appointment of a suitable person or persons to supply the vacancy or vacancies so created, and to name in such petition the person or persons whom they desire to be appointed. And every person so appointed shall succeed to and be fully invested with all the rights and powers, and be subject to all the duties and responsibilities pertaining to the office or place which he is appointed to fill, in like manner as he would have been had he been herein expressly named and appointed such trustee.</p> <p>46. “ And my will is, and I accordingly hereby declare, that my said trustees shall not be charged or chargeable with, or accountable for, any loss which may happen to my estate, unless such loss shall happen through their wilful default or neglect; and that they shall not respectively be held accountable for the separate acts of each other; but they shall in all things discharge the duties of the trust with care and fidelity according to the best of their skill and understanding.</p> <p>47. “Forseeing that the duties imposed upon my trustees may require a considerable portion of their attention, I deem it proper to declare my views and intentions relative to the subject of their compensation. I consider the liberal and extraordinary provisions which I have made in favor of my son Augustus and his family as justly entitling me to expect that he will cheerfully take upon himself the burden of the trust without other compensation ; and in like manner I expect that the liberal provisions herein contained in favor of Mr. King and his daughter, together with the emoluments likely to arise to him from being employed professionally in the management of my estate as herein provided, will be deemed by him an adequate compensation for his services. To my trustee, Gideon Hawley, esquire, in full compensation for the performance of all the duties required of him, I allow the sum of five hundred dollars a year, so long as he shall continue to perform such duties. And should it at any time become necessary, as hereinbefore provided, to procure the appointment of another person in the place of either of my said trustees, he shall be entitled to such compensation for his services as my trustees upon whose petition he shall be appointed shall think proper to allow.</p> <p>48. “ And Lastly, I hereby constitute and appoint my trustees above named, and their successors appointed in the manner herein before directed, executors of this my last will and testament.”</p> <p>The testator died 19th December, 1832, seised of real estate and chattels real of the value of $800,009, including 40,000 acres of unimproved lands in the state of Illinois, and possessed of personal property to the amount of $500,000. He was indebted $112,000. At the time of the making of the will, and at his death, the testator had nine children living, and also one grand-daughter, the only child of a deceased daughter, and a grand-son and. grand-daughter, the children of a deceased son, which twelve children and grand-children were his heirs at law. His son William was married and had one child. Another son Augustus was also married, and had three children. No alteration took place in the testator’s family between the making of the will and his death except the marriage of his eldest daughter Jeannette to W. H. Barker; but after his death, and previous to the hearing of this case in chancery, William had another child born. Mrs. Barker also had a child born, and John, another son of the testator, married. All the children and grand-children, except William, Augustus, and Henry, were minors at the time of the death of the testator and at the time of the hearing. The testator’s youngest child was born in November, 1828, and his youngest grand child William Augustus, was born on the 29th December, 1831, and of course would not arrive at full age until twenty years and ten days after the death of the testator. The widow elected to take her dower instead of the provisions made for her in the will.</p> <p>On the 19th October, 1833, a bill in chancery was filed by Gideon Hawley and James King, two of the executors and trustees against Augustus James, their co-executor and trustee, Catharine James the widow, and the children and grand-children of the testator, and against the other persons who had either vested or contingent interests under his will, for the purpose of settling the construction of such will, and to have the trusts thereof carried into effect, under the direction of the court of chancery. William James and Henry James, two of the heirs at law of the testator, and defendants in the original suit, subsequently filed their cross bill, against the complainants and against their co-defendants in such original suit, to set aside the will of the testator, or such of the devises and trusts contained therein as should be adjudged illegal and void; and to have so much of the property as was not legally disposed of by the will, distributed among the several persons entitled to the same under the provisions of the Revised Statutes relative to descent and the distribution of intestates’ estates. Several persons having by birth or marriage, become interested under the provisions of the will, subsequent to the commencement of the suit, they were brought before the court as parties, by a supplemental bill and cross bill; so that their several rights and interests in the estate of the testator might be ascertained and settled, and that they might be bound by the decree. The cause was heard in chancery, on the bills and answers, and upon the reports of a master to whom it was referred to ascertain the rights of the infant defendants.</p> <p>In respect to the portions of the will upon which appeals were subsequently prosecuted, the chancellor decided,</p> <p>1. That the estate devised to the trustees, is a valid trust term for years, for the term of twenty years and ten days from the day of the testator’s death, determinable upon the ceasing of the minorities either by lapse of time or the death under age of the testator’s children and grand-children who were living at the date of the will.</p> <p>2. That the estates in remainder for life given by the will to the children and grand-children designated as the recipients of the eight and an half shares of the estate, are valid as contingent remainders.</p> <p>3. That if such remainders shall vest in interest and possession at the expiration of the trust term, the remainders limited thereon to the descendants or special heirs of the first remainder-men for life, are also valid, subject to the execution of the power of appointment; but that the power in trust, given to the remainder-men for life to devise the ultimate remainder, in fee or otherwise to their descendants not in existence at the time of the death of the remainder-men, or to appoint any estate to their descendants other than an absolute and unconditional fee, except in the case of the death of the first appointee during minority, is void.</p> <p>4. That the substituted estates in remainder in the 8| shares upon the death during the continuance of the trust term, of the children and grand-children designated as the recipients of those shares, are void; as are also the ultimate or subsequent remainders depending on the substituted remainders.</p> <p>5. That the estates in remainder for life given by the will to Anna McBride and Lydia the grand-daughters of the testator, and the several subsequent estates in remainder in the portions devised to them, limited on such life estates, either as substituted remainders ox otherwise, axe valid; but the power in trust to devise the ultimate remainders to descendants not in existence, &c. is illegal and void.</p> <p>6. That the estate in remainder, for life to the children of Augustus James m esse at the death of the testator and the remainders in fee to the after-born children of Augustus in the fund of $50,000, and the ultimate remainders in fee limited upon the life estates, are valid; but that the power in trust to devise the ultimate remainders (to descendants not in existence, &c. is void.</p> <p>7. That the trust to receive the rents and profits of the trust estate, and pay the legacy to John James and the annuity to the Orphan Asylum is valid; that the legacy given to James King and the specific annuities to divers persons, given by the will are also valid.</p> <p>8. That the provisions in the will as to marriage portions to the grand-daughters Anna M’Bride and Lydia are valid ; but that the same provisions as to marriage portions and as to advances to the persons designated as the recipients of the 8|- shares of the estate are void.</p> <p>9. That the directions of the testator to the trustees, to convert his personal property into real estate, are valid; but that the direction for the accumulation of rents and profits is void.</p> <p>10. That the provisions in the will for the support of the minor children of the testator in the event of the death of their mother, and for the support of his grand-children and the widows of his sons, are valid provisions.</p> <p>From the decree of the Chancellor two of the trustees, viz. Messrs. Hawley and King, appealed to this court. There were also various cross-appeals entered, and the matters of all the appeals were discussed in the same argument. The following were the points presented and insisted upon by the counsel for the several parties.</p>

<p>1. Where lands are described in a deed conveying the same, clearly and distinctly by courses and distances, so that upon actual survey the true location of the tract can be ascertained with absolute certainty, the owner may assert his title to hold according to the true boundaries of his lands, notwithstanding that an encroachment has been made upon him by the owner of an adjoining tract, a line maintained in pursuance of such encroachment, recognized by the party encroached upon, and acquiesced in by him for a period of eleven years, if the lands in dispute are in a state of nature, i. e. covered with timber, and no other occupation has been had of them, than the occasional cutting down of trees and drawing away of timber.</p> <p>It seems that if during such acquiescence, expensive improvements by the erection of buildings or otherwise, had been made by the occupant upon the premises in dispute, the owner would have been held estopped from setting up the true line.</p> <p>There was no evidence in this case of a deliberate settlement of the erroneous line by express ageement, founded upon a bona fide attempt to ascertain the true boundaries by actual survey according to the courses and disances of the older deed: both parties having derived their title from the same source.*</p>

<p>A devise, Void as to the limitations created thereby, is void also as to the directions for the apportionment of the estate among the beneficiaries, where such apportionment is different from the rules established by the statute of descents.</p> <p>How far a will, invalid as to some of its provisions, can be sustained as to others not in conflict with the statute regulating the devise of real estate; and when a will will be avoided in toto, on the ground that by declaring void portions of it, the main intent of the testator is defeated—considered and discussed by Mr. Justice Cowen.</p>

Error from the supreme court. Miller brought an action of replevin against Adsit in the Rensselaer common pleas in September, 1828, and declared for the taking and detention of two horses. The defendant pleaded, 1. Noncepit; 2. That the property in the horses was in one Jacob Coon, traversing the property to be in the plaintiff; and 3.

<p>An appeal does not lie from an order of the chancellor refusing to vacate an order that a bill be taken pro confesso, and that the defendant have leave to put in an answer.</p> <p>Cases on the subject of reviewing the decision of subordinate courts on questions of practice, questions resting in discretion granting or denying interlo. cutory costs, and granting, refusing, continuing and dissolving injunctions, examined and commented upon.</p>

<p>A party in possession of a dwelling-house, under a valid subsisting contract of purchase, although he has not paid the whole consideration money, has an insurable interest; and if he applies for insurance, representing the house as his, and it is described in the policy as his dwelling-house, is not guilty of a misrepresentation or breach of warranty so as to avoid tho policy.</p> <p>In case of loss he is entitled to recover the full value of the building to the extent of the sum insured, although previous to his effecting the insurance, his vendor had procured the same house to be insured in his own name, if such prior policy was not assigned to tho purchaser previous to the loss.</p> <p>Policies against fire are personal contracts with the assured, and do not pass to a purchaser of the property insured or to an assignee, without the consent of the underwriters; if the assured sell the property and parts with all his interest therein before the loss happens, the policy is at an end unless it is assigned to the purchaser; if he retains a partial interest in the property, the policy will protect such interest.</p> <p>It seems that when the property insured is sold, and a portion of the consideration money remains unpaid, and the assured recovers the amount of his loss from the underwriter, that the latter is entitled to be substituted in the place of the assured, in respect to his rights and remedies against the purchaser.</p> <p>Where by the terms of a policy it is provided that in case the assured shall already have any other insurance, not notified, the policy shall be void, and it is declared that in caso of any other insurance upon the property, whether prior or subsequent, there shall be only a pro rata recovery in case of loss, and one of the conditions attached to the policy is that notice of all previous insurances shall be given at the peril of forfeiting the policy, it was held, that a purchaser of a dwelling-house, who effected insurance upon it, was not bound to give notice of a previous policy effected by his vendor, unless such previous policy were assigned to him.</p> <p>The certificate of loss need not be in the precise words specified in the policy ; if it be so drawn as evidently to mean the same thing, it is enough: and accordingly, where the condition required that the magistrate should state in his certificate that he was acquainted with the character and cicumstances of the person insured, and that having investigated the circumstances in relation to the loss, he knew or verily believed that the assured had sustained loss to the amount mentioned in the certificate, it was held, that a certificate of the magistrate that he resided within two miles of the place, was acquainted with the assured, and that the assured had sustained loss ta ¿tie amount of the buildings mentioned in the account of loss of the assured, was a sufficient compliance with the terms of .the condition.*</p>

<p>Where a suit at law is prosecuted, in the name of a third person, by a re. ceiver appointed by the court of chancery, and the plaintiff and the defendant in the suit unite in a petition to the court of chancery, stating that the pretence under which the suit is prosecuted is in fraud of justice, that the object of the suit is to vex, harass and oppress the defendant, and to sub. ject the plaintiff to costs, and the allegations in the petition are not denied hy the receiver or by the party who procured his appointment, the receiver will be directed to discontinue the suit.</p> <p>How far the court of chancery will interfere to restrain or protect a receiver in suits prosecuted by or against him, considered by Mr. Justice Cowbn, who delivered the prevailing opinion, and by Mr. Justice Bronson, who delivered a dissentingmopinion.</p>

Error from the supreme court. This was an action of debt on a judgment in favor of the testator against Miller, on a bond and warrant of attorney, conditioned for the payment of $826,40. The bond and warrant were executed on the 19th October,.1805, and the judgment entered three days thereafter. The suit on the judgment was commenced ™ ^anuary termi 1833. The defendant pleaded 1: nil debet ; 2. nul tiel record; and 3. payment to the testator on 1st January, 1806.

<p>An attorney’s lien for costs is no bar to a hill in chancery filed to obtain a set-off, nor is it a bar when the question arises on a trial at lato.</p> <p>The practice of the courts in respect to attorneys’ liens on motions to set-off one judgment against another considered and commented upon.</p>

<p>Error from the Supreme Court. Price sued Power in the Ontario Common Pleas in an action of slander, for charging him with swearing false as a witness, on a trial in a justice’s court, in a cause in which Power was plaintiff and M’Lowth and Osgood defendants. The charge was general, that Price had sworn false upon the above occasion. In the declaration the trial was set forth, and it was alleged that Price was examined as a witness; but it was not averred that the testimony given by him was material to the issue. The suit before the justice was for taking and selling a quantity of hay belonging to the plaintiff, by virtue of a warrant issued by the defendants as the trustees of a school district, to collect a tax voted at a district meeting, held on the 22d May, 1830, which was alleged to be an adjourned meeting from the annual meeting held on the tenth of the same month. The plaintiff contended that the proceedings of the meeting of the 22d May were void, because the annual meeting had been adjourned for a year previous to the adoption of the resolution to have a special meeting on the 22d May. Price testified on that trial on the subject of the adjournment, gave an account of the proceedings of the meeting, and that he made a motion for its adjournment until the 22d May. After the trial, Power told him that he had sworn false in giving his testimony, inasmuch as he had often told him that the annual meeting was adjourned for a year previous to the adoption of the resolution to adjourn to the 22d May, and that he had now sworn that he did not recollect such fact, when in truth he did recollect it. The defendant insisted that the plaintiff was not entitled to sustain his action, because he had failed to show that his testimony, charged to be false, was material to the issue tried; and that from the evidence which had been given, it was apparent that his testimony was irrelevant or immaterial. The court charged the jury that the plaintiff need not prove affirmatively that the testimony given by him on the trial before the justice was material, and that if they were satisfied that a trial had been had before the justice, in which the plaintiff was sworn and testified as a witness, and that the words charged in the declaration had been spoken, the plaintiff had sustained his action ; if, however, from the proof exhibited before them, they were of opinion that the testimony of the plaintiff before the justice was immaterial, then the plaintiff was not entitled to recover ; but at the same time instructed the jury that the court were of opinion that the testimony given by the plaintiff; on the trial before the justice, was material. The jury found a verdict for the plaintiff for $300 damages, on which judgment was entered. The defendant sued out a writ of error to the supreme court, where the judgment of the common pleas was affirmed. See opinion, 12 Wendell, 502. The defendant thereupon removed the record into this court by writ of error. The case here was argued by</p>

<p>In a contract for the purchase and sale of lands, the statute of frauds is satisfied if the party to be charged therewith signs the contract; it is not necessary to the validity of the contract that it should be signed by both parties.</p> <p>It is no bar to a bill in equity, that the complainant might have sought his ' ■remedy by action at law for money had and received, in a case where a party received money as the trustee of another; in such a case courts of law and equity have concurrent jurisdiction.</p> <p>The consideration clause in a deed, that is, the clause acknowledging the receipt of a certain sum of money as the consideration of the conveyance or transfer, is open to explanation by parol proof. Thus, where the consideration in a deed conveying lands was expressed to be money paid., it was held, that parol evidence was admissible to show that the consideration, instead of money, was iron of a specified quantity, valued at a stipulated price.</p> <p>It seems, according to the American cases, that the only effect of a consideration clause in a deed is to estop the grantor from alleging that the deed was .executed without consideration ; and that for every other purpose it is open to explanation, and may be varied by parol proof.</p> <p>The statute of limitations may be pleaded with the same effect in equity as at law, and receives the same construction in both courts ; but the admission of a debt is available to take a case out of the statute.</p> <p>Fraud or mistake by which a party has been prevented from asserting his claim, is no answer to a plea of the statute of limitations.</p> <p>As a general rule, it seems a bill in equity should combine the qualities of a declaration and replication, by anticipating the defence and charging the matter relied upon in avoidance.</p>

Error from the supreme court. This was a proceeding in the supreme court under the statute authorizing a reference where a claim is presented against the estate of a deceased person, and its justice is doubted by the executor or administrator. 2 R. S. 88, § 36. A report was made in favor of the executors of Mary Copous.

<p>The slip, survey, or application for insurance, though referred to in the body of the policy as more particularly describing the building containing the goods insured, does not so constitute a part of the policy as to operate as a warranty; it is a mere representation, and if substantially correct the policy is valid, although one of the conditions attached to the policy is, that if the assured shall make any misrepresentation the insurance shall be void.</p> <p>It seems that in this respect there is a difference between marine and fire policies.</p> <p>To give the effect of a warranty to a slip referred to in a policy, it seems it should be referred to in such a manner as to show that it was intended by the parties that it should have such effect.</p> <p>A warrantry on the part of the assured, whether express or implied, is in the nature of a condition precedent, and must be strictly complied with or the policy is void ; not so as to a representation, in respect to which the rule is that the policy is valid unless the representation is false or mistaken in a matter material to the risk.</p> <p>Whether there has been such a misrepresentation as will avoid the policy, is a question for the jury,</p>

<p>Error from the supreme court. Taylor entered into a contract with TiUotson for the' purchase of a horse, the terms of which were set forth in a writing in these words ; “ Received of E. Taylor ninety dollars for a six year old sorrel horse. Taylor is to have him pricked by H. C. Plainer at my risk and at his expense, and he has three weeks from this day to return the horse to my house if he does not like him,provided he does not in any way injure the horse; if he is returned as above, I hereby promise to pay back to Taylor the ninety dollars.” A few days after the date of this contract, Taylor drove the horse in a one horse waggon, and in descending a hill, the horse ran away. The waggon was upset, and Taylor and his wife were thrown out and badly injured. Taylor applied to TiUotson to take back the horse, who took him back and repaid Taylor the ninety dollars. A month afterwards TiUotson commenced a suit against Taylor in a justice’s court, and declared against him in cáse for a misrepresentation or concealment in relation to the misadventure. Taylor pleaded the general issue. The justice rendered judgment in favor of the plaintiff for forty-five dollars damages. The^defendant appealed to the Otsego common pleas, where the cause was tried on the pleadings in the court below. On the trial of the cause it was proved that at the time when the plaintiff agreed to take back the horse, the defendant, in giving an account of the misadventure, stated that, in going down a hill, and passing a water-course, one of the traces got loose, and the fills fell down; that he turned the horse out of the road to prevent the waggon running upon him, that the waggon then turned over, and he and his wife were thrown out; that the horse did not run, that he walked or trotted about five rods, and was in no way frightened or injured. The plaintiff said he would take the horse back if he was as good as he was before, but if he was not as good, the defendant must make him as good—to which the defendant answered that if what he had told him was not true, he might have both the horse and the ninety dollars. The plaintiff proved that the defendant had stated that the cause of the accident was that the whiiffetree gave way, and let the waggon on to the horse’s heels, who then ran away down the hill, where the waggon was upset, and the horse then turned round and ran up the hill twenty or thirty rods, where he stopped of his own accord. It was proved that, previous to the time of the-contract, the horse was gentle, and that since the accident he was restive, easily frightened, and showed a disposition to run away ; and the plaintiff also proved that the fact of a horse having once run away, materially lessened his value in market. The plaintiff having rested, the defendant applied for a nonsuit on the grounds, 1. That this was a case of bailment in which there could be no recovery against the defendant unless negligence on his part was shown ; 2. That if not a bailment, it was a conditional sale, and in such case the plaintiff cannot recover without showing negligence on the part of the defendant; 3. That the plaintiff cannot recover on the agreement that the plaintiff might keep both the horse and the money if what the defendant told him was not true, as it was a nudum pactum. The nonsuit was refused, the court ruling that if the jury believed that the contract was varied in the terms on which the horse was taken back, and that the defendant was guilty of fraud to induce the plaintiff to vary the contract, that then the defendant was liable, and in such case it was immaterial what was the original contract. The defendant excepted to this decision, and called a witness, who proved that the waggon and harness used at the time of the accident were substantial and good, and had not been much used. He also called various witnesses, who gave it as their opinion that the circumstance of a horse having once run away, would not materially detract from his value. Several witnesses on the other side testified that it would materially affect his value. The evidence being closed, the presiding judge charged the jury, that if they believed from the evidence given that the parties had varied the terms upon which the horse was to be taken back, and that the defendant had wilfully misrepresented the facts or fraudulently suppressed the truth, the plaintiff was entitled to recover ; but if they should find that the terms of the contract had not been varied, it would become material to inquire into the meaning of the words of the contract “ provided he does not in any way injure the horsethat a majority of the court were of opinion that those words included any injury happening to the horse while the defendant was using him, but that a minority of the court were of opinion that the defendant was answerable only for negligence or wilful injury. He further instructed the jury, that it was their duty to inquire whether the defendant had wilfully misrepresented the facts, or fraudulently concealed the truth; if they should find that the defendant had been guilty of fraud, they must then inquire whether the plaintiff had sustained any damage, and assess the same accordingly, and if they were satisfied that a fraud had been perpetrated, they were at liberty, in their verdict, to go beyond the amount of the actual damages. The defendant excepted to the charge. The jury found a verdict for forty dollars, on which judgment was rendered. The defendant removed the record by writ of error into the supreme court, where the judgment of the common pleas was affirmed. Whereupon the defendant sued out a writ of error, removing the record into this court.</p> <p>The following opinion was delivered in the supreme court on affirming the judgment of the common pleas :</p> <p>By the Court, Nelson, J. The charge of the court below, we think, was unobjectionable. The only point about which there can be any question, is as to the true construction of the agreement between the parties, in respect to the sale of the horse. The title undoubtedly passed to the defendant. The consideration was paid, and the horse delivered. There was, therefore, nothing like a bailment in the case. If the horse had died from any cause before the return, he would have died the defendant’s. The language of the agreement is very explicit: “ he (defendant) has three weeks from this day to return him, provided he does not in any way injure the horse; if he is returned as above, I hereby promise to pay back the money.” The horse was to be returned as a condition precedent to the rescindment of the contract, and without this there could be no pretence for a return of the consideration money. This of itself is repugnant to the idea of a bailment, and that the defendant was accountable only for reasonable tatention and care of the property while in his possession ; for assuming the case to be a bailment, then the plaintiff must risk the life of the animal, unless there was negligence. What seems conclusive as to the intent of the parties, is the stipulation that the defendant should get the horse pricked at the risk of the plaintiff. Why limit in express terms the risk to this act, if it was designed by the contract to apply to the use of the horse generally ? Nothing would have been more natural, while the subject of risk was under consideration, as to this particular, than to have extended it to the use of the horse generally, if so intended by the parties. Besides, the terms of the contract are too explicit and decisive to justify the construction that the plaintiff was to be responsible for all the accidents to which the horse might be exposed while in the hands of the defendant, and accord with the idea of an-absolute sale. This conclusion is also in conformity to the understanding of the parties themselves, as is obvious from the conversation at the time the horse was returned. Assuming this construction of the agreement to be correct, there can be no doubt the defendant would be liable in this form of action; if by false representations he had induced the plaintiff to take back the horse, when in fact he had been seriously injured while in his hands, it would be fraud accompanied with damage. This was a question of fact; and the verdict of the jury is conclusive upon it, where the evidence may reasonably sustain it; and, in this view of the case, we perceive no objection to the nature of the testimony received to establish the existence and amount of the damage. Judgment affirmed.</p> <p>The cause was argued in this court by</p>

<p>A note given in the name of a firm by one of its members for moneys collected by him as the agent of the payee, is a valid note against the firm, where the moneys thus collected were in the nature of a loan to the firm.</p> <p>A note given by one of several partners in the name of the firm, is of itself presumptive evidence of the existence of a partnership debt; and if the other partners seek to avoid its payment, the burden of proof lies upon them to show that the note was given in a matter not relating to the partnership business, and that with the knowledge of the payee.</p> <p>All the members of a firm are liable for money lent to the firm upon the application of one of the partners, and it is not necessary to show the actual application of the money to the use of the firm, or the assent of the other members to such application thereof.</p> <p>Whether if money is borrowed by one member in his individual character, and applied to the use of the firm without the knowledge or assent of the other partners, all the members of the firm are liable—quere.</p> <p>The case of Jaques v. Marquand, 6 Cowen, 497, reviewed, commented upon and distinguished from the present; and the case of Whitaker v. Brotan, 11 Wendell, 75, virtually overruled.</p>

Error from the supreme court. Parker sued Walrod in a justice’s court, and declared against him in trespass, for entering his close and taking and carrying away the devices and whiffietrees affixed to a waggon.

Error from the supreme court. A road was laid out in the county of Kings, under the “ act regulating highways and bridges in the counties of Suffolk, Queens and Kings,” passed 23d February, 1830. See 3 R. S. App. 135.

<p>A mortgage of personal property is fraudulent as against the creditors of the mortgagor, where there is not an immediate delivery followed by an actual and continued change of possession, although the mortgage be made in good faith and without any intent to defraud, unless the continued possession in the mortgagor is satisfactorily explained.</p> <p>In this case it was held that the continued possession of a mortgagor was not so explained, by showing that he was a traveling or missionary preacher of the gospel, and that the use of the property mortgaged (a horse) was necessary to enable him to pursue his vocation ; and that upon such evidence it was the duty of the qourt to nonsuit the plaintiff, and not to submit the question of fraudulent intent to the jury; Justices Bronson and Co wen holding this opinion, and the Chief Justice dissenting.</p> <p>The distinction which heretofore existed between an absolute sale and a mort. gage of goods is abolished by the revised statutes.</p> <p>Where a defendant sued here justifies the taking of property in a sister state, under an attachment issued there, he is bound, it seems, to show that the process issued conformable to the laws of the place. The omission to give such proof cannot, however, be objected in bank, if the question was not raised at the trial.</p>

This was an action on the case, for obstructing a way, tried at the Albany circuit in March, 1831, before the Hon. James Vandebpoel, one of the circuit judges.

<p>The examination of a debtor proceeded against by warrant, under the act 4 to abolish imprisonment and to punish fraudulent debtors,* cannot be used in evidence against the debtor, in a prosecution against him for a misdemeanor in disposing of his property with the intent to defraud his creditors.</p> <p>The offence of thus disposing of property is complete, although the creditors intended to be defrauded are not judgment creditors.</p>

<p>No title passes to the purchaser of lands sold for taxes, although a deed be executed to him by the comptroller, if any part of the lands included in the deed be occupied, until after notice of the sale to the occupant, and a full compliance with all the requirements of the statute.</p> <p>The omission to give such notice to an actual occupant of part, renders the deed inoperative as to the residue of the lands included in it, although such residue be wholly unimproved.</p>

<p>Where a party gives an acceptance for the accommodation of another, who passes it to his creditor to apply in payment of a note, and the creditor procares the acceptance to be discounted, and transmits its avails to the acceptor, with instruc tions to apply the same to the payment of the note, who, instead of doing so, applies them to a general account he holds against the drawer, an action lies in favor of the creditor against the acceptor, for so much money had and received, notwithstanding that the acceptance was mere accommodation paper, and that the acceptor at maturity was obliged to, and actually did pay the acceptance.</p>

<p>A ministerial officer is protected in the execution of process, issued by a court or officer having jurisdiction of the subject matter, and of the process, if it be regular on its face and does not disclose a want of jurisdiction. 'This rule of law, however, is one of protection merely, and beyond that confers no right; it is personal to the officer himself, and affords no shelter to the wrong-doer, under color of whose process, if it be void, the officer is called upon to act.</p> <p>A purchaser under aft execution, whether he be the plaintiff in the process or an innocent third person, to maintain an action of trover for the property bought, is bound to prove not only the sale and execution, but a valid, judgment.</p> <p>So also it is incumbent upon the officer, in an action of trespass, to show a valid judgment, where the suit is in his name, for property levied upon by him by virtue of process, but for the benefit of the plaintiff in the process.</p> <p>A ministerial officer, it seems, may stop in the execution of process, regular on its face, whenever he becomes satisfied that there is a want of jurisdiction in the court or officer issuing the same; and if sued for neglect of duty, may show in his defence such want of jurisdiction.</p> <p>The right of an officer to bring an action for goods levied upon by him, depends upon his special property and liability over; if the process be void, he cannot maintain aii action for the taking of the goods.</p> <p>And although in general, in such action in' a suit against a stranger for the taking of goods, it is sufficient to show an execution, or process, levy and possession under it, still if the defendant can show the proceedings on the part of the plaintiff in the process void, the plaintiff cannot sustain his suit.</p> <p>The consent of tile officer to the taking of the property is a bar to an action in his own name.</p> <p>In an action of trespass, by an officer, it is not admissible for a defendant to show that the property, previous to the levy, was subject to a mortgage, or belonged to a third person, unless he connects himself with the outstanding title.</p> <p>Nor can he show that the property taken was exempt from execution or at. tachment; no one but the defendant in the process under which the levy was made, can avail himself of such fact.</p>

Statute of limitations. The plaintiff, as endorsee, declared against the defendant as endorser of a promissory note bearing date 6th October, 1825, payable in sixty days. The suit was commenced in July term, 1833. The defendant pleaded actio non accrevit infra sex annos. The plaintiff replied that the commencement of a suit for the collection of the note was stayed by an injunction from chancery, from the 27th March, 1827, to the 18th October, 1830.

This was an action of trover, tried at the New-York circuit in September, 1834, before the Hon. Ogden Edwards, one of the circuit judges.

<p>Demurrer to plea. The plaintiffs declared in assumpsit on' promises to the testator in his lifetime, and made profert of the letters testamentary in the usual form. Pleas, 1. Non assumpsit ; 2. Actio non, because the plaintiffs were not at the time of the commencement of the suit executors of the last will and testament of. the said Benjamin Gilbert, deceased, nor had they the execution thereof in manner and form, &c. concluding with a verification and prayer of judgment. Demurrer to the 2d plea, assigning for special cause, that it is pleaded with and after a plea of the general issue. Joinder in demurrer by defendant.</p>

Error from the Orleans common pleas. Case and two other persons, in March, 1833, commenced a suit in a justice’s court, against Wilder, and declared for breach of a special contract entered into between the parties, whereby Case and his associates agreed to clear 30 acres of land for Wilder and enclose the same in fence, and Wilder on his part agreed to give them a yoke of oxen, of the value of $70, and to allow them to raise a crop of wheat on the premises cleared, and also…

<p>Where work done under a special contract is not completed within the time limited for its performance, but is progressed in after the day with the assent of the party for whom the work is done, a recovery may be had under the common counts for the work done; but the plaintiff is confined to the rate of compensation fixed by the contract, whether one party or the other be the innocent cause of the delay, where there is no intimation during the progress of the work of an intention to demand a different rate of compensation.</p> <p>But where the delay is caused by the wilful acts or omissions of the party for whom the work is done, originating in a premeditated design to embarrass and throw obstacles in the way of performance by the other party, who notwithstanding, proceeds and bestows his time and labor in attempting the completion of the job, until in despair he finally abandons the work, the rule that the special contract must control as to the rate of compensation no longer prevails, and the party is entitled to recover under a quantum meruit.</p> <p>A party who has performed labor for another, cannot, in an action to recover for such work, produce in evidence check-rolls or accounts of the number of days’ work performed by those in his employment, for the purpose of fixing the amount of labor done, without verifying the same by the oath of the agent who made the entries, or kept the accounts, if such agent be lining.</p> <p>If the agent be dead at the time of the trial, original entries made by him in the usual course of business may be produced in evidence; but the mere fact that he is absent from the state, so as to be beyond the reach of the process of the court, will not entitle the party to give such entries in evidence. *</p> <p>When original entries are produced, and the person who made them, or saw them made by another, knowing them at the time to be true, testified that he made the entries or saw them made, and that he believes them to be true, although, at the time of his testifying, he has no recollection of the facts set forth in the entries, such evidence is admissible and prima facie sufficient to establish the facts evidenced by the entries. Such proof, however, it seems, will not be received, wheré only a. copy of the original entries is produced.</p> <p>Charges for services done or property delivered under the supposed existence of a special contract, but which afterwards become matter of account by operation of law in consequence of a rescission of the contract, cannot be proved by the party’s book ; there must be a right to charge when the service is done or the goods delivered.</p> <p>When and under what circumstances original entries or memoranda may be received in evidence, considered; and many cases on the subject collected and commented upon.</p>

<p>In slander for charging the plaintiff with peijury, a defendant, to support a justification, is bound to give as conclusive proof, as would be necessary to convict the plaintiff on an indictment for such offence.</p> <p>Evidence that a woman is in an advanced state of pregnancy so that it would not be safe for her to attend the trial, is sufficient evidence of sickness to justify the reading of her deposition taken conditionally.</p> <p>The regularity of the proceedings in taking the deposition cannot be questioned on a writ of error, if no objection of that kind was taken on the trial of the cause.</p> <p>Where there is a settlement between partners, and a promise by one to pay to the other a balance struck, an action at law may be maintained, although by accident or otherwise some trifling debts owing by the firm remain unadjusted.</p>

<p>A certificate of incorporation of a religious society cannot be acknowledged before a commissioner of deeds.</p> <p>A promise in writing to pay a certain sum to the trustees of a certain church, does not estop the party making, the promise from requiring proof of the incorporation of the church, in an action brought in the name of the church assuming to be a corporation.</p>

This was an action of trespass de bonis asportatis, tried at the Madison circuit in September, 1834, before the Hon. Hiram Denio, one of the circuit judges. The property of the plaintiff was sold under a warrant issued by the trustees of a school district to levy the plaintiff’s proportion of a tax voted at a district meeting for the purpose of building a school-house.

<p>Error from the superior court of the city of New-York. The plaintiff declared against the defendants by the names of Thomas W. Mather and John Maurin, stating Mather to have been arrested, and that Maurin was returned not found. The plaintiff counted upon a note made by the defendants in the name of Thomas W. Mather fy Co., which he alleged to be the name under which they transacted business. The declaration contained also the common money counts. Mather put in the plea of the general issue, that he did not undertake and promise in modo et forma, &c. On the trial of the cause, it was proved that the firm of Thomas W. Mather fy Co., consisted of Thomas W. Mather and George (not John) Maurin, and that the signature to the note was in the hand-writing of George Maurin, who, it was proved, had said the note would be paid. The court nonsuited the plaintiff for the variance between the declaration and proof. The plaintiff sued out a writ of error.</p>

Error from the superior court of the city of New-York. Catharine Cummings brought her action against Luke Kip, to recover, as the widow of James Cummings, her dower in certain lots in the city of New-York.

Error from, the Albany mayor’s court. Degolyer sued’ Mead in the mayor’s court, declared against him in assumpsit for goods sold and delivered, and proved the delivery of 105,768 feet of sawed timber, and the admission of the defendant, that he had agreed to pay for it, $11 per 1000 feet.

<p>Evidence of the good character of the defendant, for honesty and fairness in business transactions, is not admissible, in defence, in an action on the case, for a fraudulent representation. The case of Rúan v. Perry, 3 Gains. 120, overruled.*</p> <p>Where, in such action, a defendant is charged with a false representation, or with a suppression of facts, in reference to the solvency of a third person, the belief of the defendant in the solvency of such person, is no bar to a recovery, unless the jury find that there were at least apparent good grounds for belief. Per Cowen, J.</p> <p>Prima facie, an inculpatory admission must be viewed in connection with matter in exculpation, which comes out in the same conversation, and the latter is entitled to equal weight with the former; but the jury are not bound to credit the latter, if there be circumstances, or other proof in the case to repel it; they may then divide the confession, taking what operates against the party making the admission, and rejecting that which makes in his favor. Per Cowen, J.</p>

Quo warranto. The attorney general filed an information in the nature of a quo warranto, charging the defendants with claiming, using and exercising the liberties, privileges and franchises of being a body politic and corporate, by the name of The Harlaem Bridge Company, and to have and maintain a bridge across the Harlaem river, and to ask, demand and take tolls and duties from all persons using the bridge; and also the liberties, privileges and franchises of acting within…

Transfer of note and set-off. The plaintiff declared on a promissory note, made by the defendant to one Lewis Wheeler, and transferred by him to the plaintiff; and the declaration also contained the common money counts. The defendant pleaded the general issue, and gave notice that on the trial of the cause he would insist upon a set-off against Wheeler, the payee of the note, which set-off he was entitled to previous to the transfer of the note to the plaintiff.

<p>A defendant who pleads liberum tenementum to a declaration in trespass quare clausum fregit, setting out the close by abuttals, sustains his defence if he shows title to that portion of the close where the trespass is alleged by the plaintiff to have been committed.</p> <p>It seems that neither the plaintiff when he new assigns, or the defendant when he pleads liberum tenementum, is bound to show title to the whole close described in the pleading; it is enough if title be shown to the part where the trespass was committed.</p> <p>In trespass, where a defendant fails to support by proof a special plea in bar, a trespass or cause of action of the general nature set forth in the declaration is admitted; but the trespassers, precisely as laid in all their particulars and variety, are not admitted. The failure of the defendant to prove his plea, entitles the plaintiff to nominal damages, but nothing beyond, until he shows by proof a claim to greater damages.</p> <p>Where a deed is ambiguous, as where it gives both length of chain and a.public highway as the termini of a line, parol evidence of the actual survey and location of the highway is admissible, without producing the record of the laying out and survey.</p> <p>When a party is bound to produce record evidence before introducing parol proof relative to the same subject matter, and he omits to do so, the error is cured if the opposite party subsequently, in the course of the trial, produce it himself.</p> <p>To warrant an unqualified direction to the jury in favor of one party or the other, the evidence must either be undisputed, or the preponderance so decided that a verdict against it would be set aside and a new trial granted.</p>