Volume 17 — Barbour's New York Supreme Court Reports

<p>This was an application for an order discharging the committee of the person of Burr ; and that the allowance heretofore ordered to be paid to the committee of the person and also to the companion of Burr, be paid by the committee of the estate directly to himself, and permitting him to use or invest the same in loans, &c.; and also ordering the committee of the peiv son to deliver to the committee of the estate his mansion house, and all other property belonging to the petitioner, except what he should elect to have delivered to himself,' and that the committee of 'the estate be allowed to sell the personal property that might be so delivered up. '</p> <p>In December, 1844, Burr was found by inquisition filed m the court of chancery to be a person of unsound mind, and Benjamin E. Hoag was appointed committee of his person, on condition that Hoag would reside in the mansion house that belonged to the father of Burr, and take care of him, and Hoag was to have the use of the house and furniture, and $2000 per annum ; and he was directed to employ “ a moral, discreet, temperate and intelligent companion” for Burr, at a compensation of $600 a year in addition to his board in the family, whose duty was to watch over Burr and keep him entirely from the reach of any one who might lead him into temptation of any kind and to advise with and assist him in his studies; and the committee of his person was to furnish him a carriage in which to ride about with his cpmpanion, and°he was to endeavor by every suitable means to restore his mental vigor, so that he might be permitted, if possible, to have his property restored to him; and he was to see that the companion faithfully performed his duty, with power to discharge him and employ another as he should deem proper; also to furnish him books and employ servants for him.</p> <p>Jacob Lane, John Cramer and Henry H. Martin were appointed a committee of his estate, who were to account, &c. &c. and were also to inquire from time to time as to the manner in which the committee of the person discharged his trust—and apply for his discharge if they found he had neglected his duty— and he was to render a general account to them. Mr. Cramer only accepted the appointment.</p> <p>Burr stated in his petition, which was verified on the 24th of May, 1853, that he was in a very feeble state of mind and body in 1844, and .needed some one to watch over and assist him in the care of his person. That he had for some time been gradually recovering his health, and is now in such a condition as to render the supervision of a legal committee of his person unnecessary, and he desired to discontinue his services; and he asked that the committee be discharged, and that the petitioner might attend in open court or before a referee and be examined, &c. Exemplifications of affidavits used on a motion in 1847 were read. Erslfinc Clark, on the 1st of May, 1847, deposed that he had for two years been Burr’s physician and had known him for many years, and was his near neighbor, and had ample opportunity to judge of his mental and physical condition; that he came to reside in Hoag’s family in December, 1844, and was then in feeble health, and so far enfeebled in 'mind as would be the result of such weakness and infirmity and no farther; and he thought his enfeebled state of mind was attributable to his physical infirmities. That since December, 1844, he had gradually improved in health and there was a corresponding improvement in mental strength; and his “ once weakened energies of mind and character are re-established in their wonted vigorous and healthy sway.” That he had observed him closely and had never been able “ to detect any aberration of reason or want of soundness of mind;” except what proceeded from physical infirmity, and believed him to be a man of good and sound mind, and could with perfect safety be restored to the possession and management of his estate.” John R. Peters of the city of Hew-York, on the 22d of May, 1853, deposed that he had known Burr for forty years and for several years last past intimately, that he had entirely recovered from the effects of his former ill treatment by his father and neglect of his other kindred, and from depression of spirits consequent upon his infirm health. That he was of sound mind and more competent than the generality of mankind to have the custody and direction of his own person, and he thought the supervision of a committee “ not only unnecessary but absurd and unjust to a freeborn fellow citizen.” Erasmus D. Pitkin of Saratoga Springs deposed that he was .one of the proprietors of the American Hotel in that village, and had known Btirr intimately for twelve years, during which time Burr had boarded with him a great portion of each year. That he had been gradually improving both in mind and body since he first became acquainted with him, and he thought him in better health than he had ever been since his father’s death, and that his bodily and mental health rendered the committee of his person unnecessary, and that he could be safely intrusted with the management of his person and personal affairs. Richard L. Allen, of Saratoga Springs, deposed, May 23, 1853, that he was a practicing physician, and had been intimately acquainted with Burr twenty years, and had ample opportunity to judge of his physical health and mental abilities, Burr having been at various times under his professional care. That formerly, and as he believed, by neglect of his relatives, Burr became enervated to such a degree ■ as to render a committee of his person a matter of necessity, hut had been, since the appointment of said committee, gradually and steadily recovering Ms health and mental vigor so as now to he so far recovered as to render such committee unnecessary. That he might with perfect safety be intrusted with the management and control of his own person, and that his health of body and mind was better, he believed, than it had ever been since Burr came under the supervision of the court. N. Bedortha, of Saratoga Springs, deposed, May 23, 1853, that he was a practicing physician, and that for sometime past Burr bad been under Ms professional care and had resided in the same house with Mm. That from their intimate acquaintance and familiar intercourse he had ample opportunity for forming a correct judgment, and had become convinced that he did not need a committee, but could be left with perfect safety to Ms own discretion, without any supervision whatever.</p> <p>, On the 8th of April, 1853, Burr wrote a letter to Hoag stating that it was highly important, in reference to Ms recovery, to have a companion towards whom he had friendly feelings, and insisting upon his right to select a companion; stating that his friends, heirs to the estate, considered the committee of the person a sinecure, and useless expense, and that an able and competent companion was amply sufficient for the care of the person. That if he Avas not allowed to make the selection there would be an application to the court for that purpose, and it would result in abolishing the office of committee of the person, for which he should exert every effort; but if the privilege was granted .to Mm he should not he particular about other things.</p>

This action was tried at Montgomery circuit iñ June 1853. It appeared that David H. Sacia, late of Canajoharie in the county of Montgomery, died on the 15th of April, 1842, having previously and on the 25th day of August, 1841, made and published his last will and testament, and leaving the plaintiffs, his widow and children, his principal legatees.

<p>Bents reserved upon perpetual leases are incorporeal hereditaments, and as such they are descendible from those to whom they are reserved.</p> <p>The word “ seised,” in a conveyance, docs not confine the description to tangible property. Seisin has reference to the estate, and not to the thing in which the estate exists.</p> <p>Where a deed conveyed property to J. H. to be held by him in trust'to and for the use of the grantee and his wife, during their natural lives, and for the use of the survivor during his or her life; and upon the death- of the survivor the property was to be held in trust for the use of their son, E. D. H. if he should then be a minor, until he should attain the age of twenty-one ■years; or if he should then be of full age, or when he should attain that age, it was to vest in him absolutely; Held that the deed was lo be construed as providing that the property should be held for the use of the parents, and the survivor, during life; and that upon the death of the survivqr a,n& the full age of the son it should vest in him absolutely.</p> <p>Authority was also conferred, by the same deed, upon J. H., his heirs and assigns, or the guardians of such of his heirs as might be minors, to make sales or leases of all or any part of the estate included in the deed; but it was expressly provided that the considerations, rents, issues and profits of what might be sold should be subject to the trusts specified in that conveyance. Under this power J. H. sold a portion of the lands, and received a part of the consideration money. He also leased another portion of such lands, in perpetuity, and received a part of the rents accruing during his life. He also entered into contracts for the sale of another portion of these lands and received a part of the consideration money, and made contracts for the extinguishment of tljo rents of a portion of the lands held under perpetual leases, and repeived a part .of the consideration money. Held, that in all those cases where the contracts were not consummated by conveyances, the property had not been divested, but after the death of J. H. was in his son E. D. H.; and the requisite conveyances should be executed by the latter.</p> <p>Held also, that J. H. was entitled, during his life, to the rents, issues and profits of the unsold lands, and to the interest accruing on the consideration moneys of such portions of the real estate as he had sold, or contracted to sell. And that upon his death, his son E. D. H. became seised in fee of the unsold lands, and the rents on the then existing and unaffected leases, and entitled to the consideration moneys for that portion of the estate which had been sold; whether it had been paid to J. H. or remained unpaid at the time of his decease.</p> <p>Held further, that the principal moneys which had been received by J. H. in his lifetime, on account of the lands, or which remained unpaid at lps death, belonged to E. D. H.; and that so much of the accruing income as remained unpaid at the death of J. H. was the property of J. H. and passed under his will, as a portion of his personal estate.</p> <p>Where such deed conveyed lands in trust for J. H. and his wife, during life, and for their son, E. D. H., during his minority; and on the death of both parents, and the termination of such minority, E. D. H. was to stand seised of all the estate, to and for the sole use of himself, his heirs and assigns in fee, without any further trust of and concerning the same ; Held that this was clearly a legal estate, and was exempt from a power of revocation reserved to J. H. and his wife, in respect to 11 the trusts” contained in such deed.</p> <p>A deed, executed by J. H. and his wife tp J. H. jun. was confided to the custody of E. and was. not to be delivered to the proposed grantee until he should attain the age of 25 years. If he should die under that age, having married with the consent of his parents, and having lawful issue at the time of his death, the title to the premises was to vest in, and the deed was to be delivered immediately to, or for thp benefit of, such issue. Held,, 1. That tlie term having lawful issue, applied to the time when the grantee might die under the appointed age.</p> <p>2. That, the revised statutes providing that ds to any ulterior disposition of property hy way of remainder, the failure in such cases is at the time of the death of the ancestor, the use of those terrb§ did not create an estate tail, hy implication, in J. H. jun. during his minority, to be forfeited, (in the event of his death under 25,) dt the time when he would, if living, have attained that age.</p> <p>3. That the ulterior estates were not made dependent upon a contingency too remote to take effect; the suspension of the power of alienation being limited to the single life of J. H. jun.</p> <p>4. That the deed did not become inoperative and void, hy the death of one of the grantors previous to the time specified for its delivery; hut that the title might he perfected hy a delivery of the deed by the depositary to the grantee, after he attained the age of 25.</p> <p>When a deed is at first delivered to a third person as an esetoib, such delivery is good and valid, and vests the title on the performance of the condition, or the happening of the specified contingeney. Therefore if either Of1 tlie parties dies before the condition is performed, and the condition is afterwards perfected, the deed avails; and takes effect hy the first delivery;</p> <p>Where it wds expressly declared in an explanatory instrument accompanying a deed that those papers were to he placed in the hands of P. as an escrow, yet there were some provisions for intermediate action—such as reservations or creations of power to manage, lease or sell the lands, to collect the rents, and moneys dúo bn contracts of sale, and to invest the moneys which might be received for the benefit of the grantee, provided lie should eventually be entitled to the property—Held, that these provisions, to give them any effect, must be deemed declarations of trust, which it was competent for the grantors to make; and that as P. might he considered the trustee of the grantee, to receive and hold the deed provisionally, for him, they became and continued effective.</p> <p>A grantee of land, while the deed to him is held as an escrow, has no expectant estate which gives him a right to the intermediate rents and profits, under the 40th section of the title of the revised statutes relative to the creation and division of estates.</p> <p>There can he no vaild existing limitation of an estate, under an escrow, úritil it has become effectual by the eventual delivery.</p> <p>Where a testator devised to his granddaughters all his lands “ in great lot Ho. 25 in the Hardenburgli patent lying in the county of Greene, and all my other lands in the said county of Greene, from and after the death of my said son,” and neither the patent nor the lot lay wholly in that county; Held, 1. That this included only that part of lot Ho. 25 situated in the county of Greene, which belonged to the testator; the words “ lying in the county of Greene” not being designed as descriptive of the last preceding antecedeút—the H. patent—nor of the lot, but as referring to the lands id-tended to be devised.</p> <p>2. That the words “ from and after the death of my said son,” which followed both déVises, were applicable to each.</p> <p>A devise in general terms, of all the testator’s lands in a particular county, passes his right to rents under perpetual leases on lands lying in such county.</p> <p>Where á testator gave a legacy of $20,000 to each of his three granddaughters, with a positive direction that such legacies should be paid out of the personal estate; and in a previous specific bequest of certain funds in the hands of P. to his grandson, it was declared that they were subject to the payment of the legacies to the granddaughters; is was held that this clause neither directed nor implied that those legacies should be paid out of such funds primarily, but that a resort might be had to them, if it should become necessary; in other words, that if either should fail, it should be the specific legacy.</p> <p>¡Held also, that those funds might be applied towards the paynient of the legacies to the granddaughters, in aid of that portion of the estate liable therefor, according to the usual rule, but not otherwise.</p> <p>A testator devised a farm to his son, for life, and directed that after the son’S death the farm should be divided into three parts, and he gave one. share to each of his three granddaughters in fee; and in case any of his granddaughters should die before the termination of the life estate df his son, leaving lawful issue or lineal descendants her surviving, then he gave and devised to such lawful issue, &c. the same share which the mother would have taken if she had lived. And in case any of his said granddaughters should die without leaving lawful issue, &c. then the share of the one so dying was to be divided equally between her surviving sisters, and the issue of such of them as might then be dead. Held, that the devise over to the issue must negessarily take effect, if at all, immediately upon the termination of the life estate of the testator’s son ; and that, although the devise to the survivor or survivors, or the issue of any who might have previously died, was not confined in terms to a death within the lifetime of the Son, yet that as both clauses related to the same property, and provided for consistent alternatives, the testator contemplated in each the same period; that neither, therefore, suspended the power of alienation beyond the life of one person.</p> <p>A testatdr devised to his grandson, J. H. jun. the Bayard farm, on condition that he should not sell or dispose of the same until he should have attained the age of twenty-five years; and he directed that upon the decease of his soil E. D. H., and within forty days thereafter, J. H. jun. should have his election either to remain in the occupation of the Bayard farm, or to remove td Hunter’s Island; and in case he should elect to remove to Hunter’s Island” that he should leave to his mother and sisters the Bayard farm, &c. for their residence, free of rent, as long as they should remain single, and desire to occupy the same. And in the event of J. H. jun. electing to remove to Hunter’s Island, &c. the testator devised to him Hunter’s Island, Hart Island and the Provoost farm, from and after the death of E. D. H. But in case J. H. jun. should survive E. D. H. and omit to make his election, or should die before E. D. H., leaving lawful issue, then he ordered the islands and farm to be sold and the proceeds divided ; and in case J. H. jun. should die before E. D. II., leaving no issue him surviving, then, upon the death of E. D. H. the islands and farm were given to the testator’s three granddaughters. By a codicil the testator directed that upon making the election mentioned in the will, J. H. jun. should execute a deed for the Bayard farm to his'three sisters, subject to the use and .occupation thereof by his mother and sisters, só long as they should remain unmarried. Held, 1. That there was nothing in tire devise of the Bayard and Provoost farms, or of the islands, which could suspend the absolute power of alienation, as to either, for more 'than two lives in being at the death of the testator.</p> <p>2. That neither the requisition in the will that j. H. jun., on making the election, should leave the Bayard farm to his mother and sisters, so long as they should remain single, nor the direction in the codicil that, on making siich election, ho should execute a deed of said farm to his sisters, subject to the use and occupation thereof by them and their mother, and the survivors; s'6 long as they should remain unmarried, would effect a suspension of the power of alienation at all, within the meaning of the statute.</p> <p>3. That J. H. jun. took a present fee in the Bayard farm, with a restriction as to selling it until he should attain the age of 25 years, determinable on his electing, at the death of E. D. H. to remove to Húnter’s Island, or—on his refusal or omission to do that—at his death, if he should leave no lawful issue then living.</p> <p>4. That he could sell the farm, on his attaining the requisite age, and give A title for it, defeasible only upon his dying without lawful issue.</p> <p>6. That he, upon the death of E. D. H., on his electing to remove to Hunter’s Island and execúting a deed to his sisters, for the Bayard farm, would take a fee, subject to the privilege to them and their mother mentioned in the codicil, in the two islands and the Provoost farm; determinable in favor of the granddaughters, on his dying without leaving lawful issúe.</p> <p>6. That upon II. jun. acquiring 'the fee he could dispose of the property, and confer a title therefor, subject to be defeated only upon the Specified contingency.</p> <p>Á devise of lands to E. D. 6. for life, then to J. H. jun. in fee, and upon his dying without leaving lawful issue at the time of his death, over to his three sisters, in fee, is not too remote; the power of alienation not being suspended by the lives of the children of J. H. jun.</p> <p>The statute has reference to the lives the continuance of which actually suspend the power.</p> <p>A suspension of the power of alienation, resulting simply from minority, is not such as is contemplated by the statute.</p> <p>A charge upon the income of the testator’s estate, for the education of his grandchildren, is not void as illegally suspending the power of alienation of the real estate, and the absolute ownership of the personal property.</p>

<p>A person sustaining an injury from a collision with the wagon of another, upon the highway, through the negligence of the latter, may recover therefor, if he could not have avoided the collision hy the use of ordinary care.</p> <p>If ordinary diligence by the plaintiff will not prevent the injury, he is not considered in any degree the author of the wrong.</p> <p>In order to excuse a collision upon the highway, on the ground of mevhablo accident, it must appear that the collision was unavoidable, and without any blame imputable to the defendant.</p>

This was an action of ejectment, tried before Justice Willard at the Saratoga circuit. John Jackson owned lot No. 12, and William Jackson lot No. 1, lying contiguously, each said to contain 100 acres. On the 25th of April, 1842, William conveyed to John four acres off the northwest corner of lot No. 1. This is the land in question. This deed was not recorded.

<p>An incorporated religious society appointed A., B., C., D. and E. to purchase a site and erect a church; and the avails of their old edifice, and certain subscriptions, were to be used for that purpose; the subscribershaving the right to bid off pews on their subscriptions. A., B., 0., D. and E. took a conveyance of a site, in their own names, in 1830, and built thereon a church, applying the avails of the old church and the subscriptions. In 1832 they sold the pews, and gave a deed of one to the plaintiff, a purchaserand in 1834 they conveyed to the trustees of the corporation, by a deed expressing a consideration of $5000, and containing covenants for quiet enjoyment; the deed “excepting and reserving” to “ the owners of the pews and slips” in the church “ the right to use the same in perpetuity.” In 1848, the church ^edifice having become dilapidated and dangerous for the society to worship in, the corporation substantially rebuilt it, except the walls, and in so doing remodeled the inside, and demolished the pew the plaintiff had purchased, and placed the pulpit on its site. Held, that the title to the pew passed to the plaintiff by the deed to Mm; hut that its demolition was necessary and lawful, and that the plaintiff could not recover damages therefor, nor recover the site.</p> <p>A grantee of a pew takes a limited estate—a usufructuary interest—subject to the general right of the owners of the church.</p> <p>If the church edifice becomes useless by dilapidation, or destroyed by fire or casualty, or has to be rebuilt, the right of the pewholder is gone.</p> <p>If a pew can be taken for the purposes of convenience, improvement, and embellishment, the owner is at least entitled to indemnity.</p> <p>The act providing for the incorporation of religious societies, passed April 5, 1813, notwithstanding the revisions of our constitution and statutes, is still irs force.</p> <p>The statute abolishing uses and trusts extends to every use and trust not therein excepted; and there is no qualification or exception, expressed or implied, in favor of public trusts and charitable uses.</p> <p>In those cases in which an incorporated religious society can take and hold real estate, a trust cannot arise, be created, or declared, in favor of such corporation, by parol, except in those cases where it could arise, be created, or declared in favor of a private person. Except when otherwise provided the same rule, as respects uses and trusts, the statute of frauds, and the modes of acquiring real property, applies to them.</p> <p>A deed of real estate, without a subscribing witness or acknowledgment, is good, except as against a purchaser or incumbrancer.</p> <p>Whether the purchase should not he bona fide? Qucere.</p> <p>Recitals in a deed may be evidence against a grantor.</p> <p>A husband cannot convey real estate to Ms wife, directly.</p>

Motion to set aside a report of referees. A claim having been made by Hobby, as assignee of a policy of insurance, against Dana, as receiver of the Utica Insurance Company, an insolvent corporation, the controversy was under the provisions of the revised statutes, (2 R. S. 712, § 88, 4th ed.) referred to three referees to determine the same.

Appeal by the defendant from a decision made at a special term, overruling the demurrer to the complaint.

This was an appeal by the plaintiff from a judgment entered against him for costs, upon the report of a referee.

This was an action upon a policy of re-insurance on a cargo of ship plank owned by Bidwell, Banta & Co., on board the schooner Davidson, from Port Clinton in the state of Ohio to Buffalo: The cause was tried by a referee,' who reported that on the 9th of November, 1851, the plaintiffs,' by George W. Clark, their agent at Buffalo, made a verbal contract with Bidwell, Banta & Co., to insure them against loss by dangers of the lakes or fire, to the amount of $1200, on the plank…

The plaintiff in this' action sought to stay proceedings in an action brought by the defendant to recover the possession of certain premises in Oswego county, and to compel a conveyance of the same premises to him. In 1835 one H. W. Schroeppel, being the owner of the lands, contracted to sell them to the plaintiff, who paid a small part of the purchase money and entered into possession and made improvements on the property.

This was an appeal from a judgment of the Madison county court, reversing a judgment of a justice of the peace; In the justice’s court the plaintiff complained as follows: That the plaintiff was, in the month of August, 1852, and still was, collector of school district No. 2, in the town of Brookfield, county of Madison; that said district was a regular organized district, according to statute ; that on or about the 30th day of August, 1852, the plaintiff, by virtue of a…

The plaintiff brought his action of trespass de bonis asportatis, before a justice of the peace, to recover the value of certain hogs taken and sold by the defendant.

The action was commenced in June, 1847, and was for use and occupation, &c. It appeared upon the trial, that in April, 1843, a' lease was made to one Hays, by James j. Baldwin, as agent of Peter B. Porter, of a store, &c. in Buffalo. Baldwin had no authority in writing from Porter to make the lease. The demise was for five years, upon certain rents reserved.

This was an action of ejectment, tried at the Jefferson circuit in April, 1851, before Mr. Justice Pratt. It was tried upon the pleadings and upon a written stipulation of facts, as follows: “ The plaintiff married Lucy Fillmore in the month of December, 1832, and cohabited with her until 1848, when they separated, leaving the said Lucy in possession of the premises contained in the plaintiff’s complaint.

This was a suit for the specific performance of an agreement to convey real estate. The following facts and allegations were set up in the complaint.

The plaintiff was a banking corporation doing business at the city of Hartford, under the laws of Connecticut. The defendants were an unincorporated association of persons engaged in the transportation of merchandise between Hew-York and Albany, under the name of The Albany and Canal Line of Tow Boats, Thaddeus Joy and George Monteath transacted the business of the line at Albany, in the name of “ Joy & Monteath, agents,” &c: and Alfred Hoyt was the agent in Hew-York.

This was an action for false imprisonment. It was tried before Mr. Justice Wright, at the Ulster circuit, in November, 1852. It appeared upon the trial, that the plaintiff had been arrested by the direction of the defendant, on a warrant issued by the county judge of Ulster, upon the application of the defendant, under the non-imprisonment act of 1831. The defendant sought to justify the arrest, under that warrant.

This was an action for freight and demurrage. It was tried before Mr. Justice Wright, without a jury, at the Ulster circuit, in April, 1852. The plaintiff was master of the schooner Pennsylvania. He sailed the vessel under a contract with the owners, by which he was to find the crew and provisions, and pay half the labor, port charges, &c. and receive half the net freight earned by the schooner.

This action was brought against the defendants as owners of the schooner Pennsylvania, for not delivering a cargo of coal. For a statement of facts, see Clendaniel v. Tuckerman, ante, p. 184. The trial was had before Mr. Justice Wright, without a jury, at the Ulster circuit, in April, 1852. After the evidence was closed, the defendants moved for a nonsuit, upon two grounds: 1.

-Error, to the Albany mayor’s court. The plaintiffs in error were indicted in the mayor’s court, for a nuisance, for not keeping in repair the bridge over the Albany basin, at the foot of Columbia-street. .Upon the trial, it was admitted by the defendants in the indictment that the bridge was out of repair, and in a dangerous condition, and had so been for the space of thirty days; that it was a public bridge, and was erected about the year 1825, in pursuance of the…

This was an appeal by the defendant Underwood from a decree made by Justice Johnson at a special term of the court. The complaint alleged that Mary Ann Clark, the mother of the plaintiffs, on the 2d of March, 1850, was seised of the premises described in the complaint, for her own life, with remainder in fee to the plaintiffs and their infant sister.

This was a motion to dissolve an injunction granted by a judge at chambers, upon the complaint, verified as follows: “Jefferson county, ss.

<p>When,; one of! thq subscribing w.itnesses;to .a will 'swears positively that the will,wSsexecuted0Mtti all'the fe'iplisite formalities', this is sufficient; and his testimony, vvill not he 'ovm'thfowri, or. balanced, by the non-recollection Of the other subscribing" witness'.'. " ,</p> <p>Mere feebleiiess'of intellect, However considerable, in a testator, will riot invalidate a will. D •</p> <p>The,reason for.stistaimtig thaZ-wills cíf.-éxcéssively weak persons is, that the ' weak hd.ve.th'e samó rights' jvith.th'e bfuderitbr strong minded to dispose of their property;"-.and that<if Jpibgeility,' arid not a total absence or rather pervfergioh of.mind, should Cdnstittite inability to act, it would be impossible to, drayvanyml'ear line of distinction,." ór ¿he which should generally prevail. Per i S. J5.' SiiRONGj.J".". ¿* i „ • "</p> <p>Where a testátqr whoéhad a wife .rind-sister whom he left comparatively destitute, devised the bujk.ofiris property to'-his counsel, whose influence over ! the testator was very’great,^and extended beyond professional matters, and the devisee .drew tne-wili, there, being no-evidence to show that it was in accordance with, previous "directiopsi or .that any directions were given, or that the testator had -previously designed to give any thing to him-; and such devisee was'presenf wherrthe will, was signed; and held the same, and ¿ave the pentq the testator to make his mark, and asked hiiri if it was Ms will, and whether he requested tfie witnesses to sign their names as such, and toid-.thetestátór to repeat the words, who did so; and if- was proved that the testator, in consequence of illness,was in a state of mind in which</p> <p>he readily'yieided of assented to the suggestions of others; Held, that thel will was invalid, as having been obtained by undue influence, and a decr’ee of the surrogate,,refusipg to.admit the'-faipe to probate, was affirmed. Wher'e a téstatqr áhd.a,deyi’see'uhdei his will, hy whom the same is drawn, stand in the confidential relation of client and counsel, that circumstance, alone1;oaIls "for. great circumspection;. . ‘ ■</p> <p>The mere fact thaf the’mind- oftaf estator" hris been influenced'hy the arguments or persuasions of the. person‘’principally benefited,.however indecii'ous, indelicate or improper they may he, will not, ordinarily, in the absence of fraud, vitiate a will.</p> <p>Still it must he the vnU of the testator, however induced. If it be the will of another, to which the testator assented from mere habit, and that habit produced by prostration of both body and mind, it cannot be considered his will, and ought not to be sustained.</p>

<p>^ ^0IaTirrer *° a complaint, founded on the sixth subdivision of section 144 of the code, applies only to such defects as would render the complaint bad on a general demtirrer at law, or bad for want of equity, in chancery.</p> <p>The complaint, to be overthrown by the demurrer, must present defects sti substantial in their nature, and so fatal in their character, as to authorize the court to say, taking all the facts to be admitted, that they furnish no' cause of action whatever.</p> <p>A complaint set forth, in the first count, a written agreement between the parties, m lime verba, by which the plaintiff agreed to sell to the defendant his farm in P. for the consideration of $1700 in cash and 240 acres of land owned by the defendant in the town of A., in L. county, Illinois, upon certain terms and with certain reservations therein stated. The agreement commenced thus: “ Articles of agreement, made on, &c. between B. .R. of, &c. and J. 0. E. of, &c.” Each party bound himself to a performance, by a forfeiture of $500, tobe paid by the party who should/oiZ to fulfill Ms contract. The plaintiff averred that on the day named in the agreement he tendered to the defendant a deed of his said farm, and demanded the payment of the $1700 in money and a conveyance of the land in Illinois; and that the defendant neglected to comply. He stated the value of the Illinois land to be $2000, and claimed that he was entitled to recover the consideration agreed by the contract to be paid. The second count set forth the same facts; and asked for a specific performance. Held, on demurrer,</p> <p>1. That-although there was no express contract or promise of the defendant to purchase, orto pay for, the plaintiff’s farm, there was a clear implication of one; the instrument being an agreement inter paries ', and signed by both. That it was not merely a promise made by One party to the Other, but ah agreement made by both, and binding on both.</p> <p>2. That the measure of damages was the purchase price agreed to be paid by the defendant.</p> <p>8. That the forfeiture of $500 was not intended as damages liquidated by agreement of the parties to be paid in lieu of performance, but as a penalty to enforce the execution of the agreement; and that it formed no bar to the action.</p> <p>á. That the contract was sufficiently certain, and definite, to become the foundation of a decree for a specific performance.</p> <p>The word agreement necessarily imports two parties; and when one party agrees to sell his farm to another, for a stipulated price, and both parties sign the agreement, there is a promise by the purchaser to purchase the farm, and pay, for it, the consideration specified, as clearly implied as though it were expressed in words.</p> <p>In the case of an agreement for the sale and purchase of land, the title does not pass by a tender of a deed ; nor does it pass by operation of law, on the recovery of a judgment for the purchase price. The plaintiff holds the title to the land, and recovers its full value expressed in the contract; and after judgment, when the defendant seeks to obtain the land, a court of law is without the power of affording him any relief. Per Gridley, J.</p> <p>On an agreement relating to real estate, the vendor, on tendering a deed and offering to perform his agreement, may recover the purchase money, in an action at law.</p> <p>Where lands agreed to be conveyed are not definitely described in the contract, but are alleged to lie in the town of A., county of L. and state of Illinois, and they are the 240 acres owned by the party, this is a sufficient description.</p> <p>Such a description wohld be good either in a deed or a will.</p> <p>A complaint in an action upon a contract for the sale and purchase of land, need not supply the circumstances which will furnish materials and guidance for drawing a decree or judgment directing a conveyance, with a definite description, so that an officer may go upon the ground and select the farm. Such a degree of certainty is not necessary.</p> <p>If a demurrer admits facts enough to constitute a cause of action, that is sufficient to sustain the complaint. If the defendant requires a greater degree of certainty in the complaint, he must seek his relief by the mode pointed out in the- code, by a motion that the pleading be made more certain and definite.</p>

<p>The opinion of the court states all the material facts, in this case.</p>

<p>Where a complaint averred an insurance to B. & L., on a joint interest, and q. joint loss, and the proof showed a joint loss, but an insurance to B. alone, without any general words, such as for the “ benefit of whom it may concern,” or “ as the property may appear;” held, a fatal variance.</p> <p>In this country the rule is well settled that such an insurance is by the party named, alone, and for his own and sole benefit; even in case of a partnership, and where the prooerty insured is partnership property.</p>

Motion loy the defendants, upon a case, to Set aside the verdict of a jury, and for a new trial-. Among the questions submitted to the jury for their answer; were the following: 1. Is the paper writing, purporting to be the last will and testament of John Mason, deceased; dated the 26th of September; 1839, the last will and testament of John Mason, deceased ? 2.

The relator was a licensed teacher of common schools in the city of New-York. On complaint of hi's alleged immorality, Joseph McKeen, city superintendent, gave ten days’ notice to the relator, and to the trustees of the schools where he was employed, of his intention to annul the relator’s certificate, and after ten. days did annul it, by an instrument in the form prescribed by the state superintendent, (the secretary of state,) which was filed according to law.

This was an action upon a policy of insurance, in which the plaintiffs claimed to recover, as for a total loss, the value of certain hides, insured on a voyage from Santa Martha, on the Spanish Main, to New-York.

In Equity. These causes, which were an original, and a cross-suit, were commenced in the late court of chancery, before the chancellor, and were transferred to this court by the operation of the new constitution and the judiciary act. They were brought to a hearing, upon pleadings and proofs, at the general terms of' this court, held in the city of New-York, in October and December, 1852.

This was an appeal from a judgment in favor of the defendants rendered on the report of a referee. The plaintiffs were a foreign corporation duly organized under the laws of Connecticut, doing business in that state, and also engaged in the trans-’ portation business in the state of New-York, on the Hudson river, between Albany and New-York.

On the 18th of April 1851, the plaintiff deposited in the Hew-York State Bank, a bank owned and carried on by the defendant as an individual banker, at Durham, in the county of Greene, $470 to the credit of the depositor, payable on demand.

This was an action against the defendant, sheriff of Benssel'aer county; for wrongfully detaining twenty one barrels of pork, 14 half barrels of pork, ten hogsheads of vinegar, 23 bagged shoulders, ten barrels of clover seed and ten empty kegs.

This was an action of ejectment to recover the possession of a piece of. land occupied by the defendant, situated in Stephen-town, in the county of Rensselaer, and containing about 46 or 47 acres. It was commenced on the 5th of April, 1848, and was first tried at the Rensselaer circuit on the 10th day of October, 1849, when a verdict for the plaintiff was directed by the judge, which was afterwards, upon exceptions taken by the defendant, set aside by this court.

This case came up on a verdict taken at the Clinton circuit, in July, 1858, subject to the opinion of the court. The action Was brought on a written contract, made by the defendants with Kingsland & Co. and Lyman Woodworth, for the construction of a part of their plank road, and the purchase by the company of a portion of their capital stock. The complaint, after averring the incorporation of the defendants, set out the agreement in full.

This was a motion for a new trial, upon a bill of exceptions. The suit was to recover the amount required by an order of the court off sessions of the county of St. Lawrence to be paid weekly, by the defendant, for the support of -his mother; and was tried at the St. Lawrence circuit, before Justice Cady.

This was an action to recover for the support of Lovisa McArthur, the mother of the defendant. The complaint set forth that the plaintiffs were superintendents of the poor of St. Lawrence county; and that the distinction between town and county poor in said county had been abolished before any proceedings were had in this matter.

This was an appeal from a judgment of the county court of St. Lawrence county, affirming that of a justice. The action was to recover the value of a pair of steers taken and sold by the defendant as deputy sheriff, on an execution in favor of one G. W. against Arba Gates, jun., the former owner of the cattle.

This was an action brought before a justice of the peace, to recover the value of a wagon, a promissory note for $30, and a bank note for $5 ; which the plaintiff alleged were his property, and that the defendant had converted them to his own use. On the trial in December, 1852, it appeared that the plaintiff was 20 years of age. That in March of that year, his father “ gave him his time,” and he went into the blacksmith’s business.

This was an appeal from a judgment rendered at a special term, overruling the defendants’ demurrer to the complaint.

On the 29th of December, 1852, the board of aldermen of the city of Hew York adopted a resolution, whereby it was declared that the defendants, and those who might for the time being, be associated with them, designated as the associates of the Broadway railroad, should, upon certain conditions and stipulations therein specified, have the authority and consent of the common council to lay a double track for a railway in Broadway^ Scc.

<p>In an action against several defendants, to recover the possession of personal property, where a taking of the goods by one of the defendants isi fully-proved, it is not a ground for a nonsuit generally, as to all the defendants, that no joint taking by them was proved. - .</p> <p>. If nothing appears, either in the pleadings of in the evidence, to'charge a portion of the defendants, they will be entitled to a nonsuit, "and the plaintiff may proceed and try the issues between himself and the other defendants.</p> <p>In such an action the court has the power to adjudge a return of the goods, in favor of such of the defendants as shall appear to he entitled to a return, and to refuse it as to the others.</p> <p>Although the .jury find the exclusive possession of the goods to be in one of the defendants, they are not hound to render a general verdict in favor of all the defendants.</p> <p>Where, in an action to recover the possesion of personal property, a- portion of. the defendants claim the entire possession, by virtue of a chattel mortgage, in hostility both to their co-defendant, the sheriff and the plaintiffs, and the proof shows that the sheriff levied upon the property, and held it, in subserviency to the mortgage, it is not necessary that the jury by their verdict should determine the value of the property admitted by the mortgagees to he in their possession. A general assessment of the whole value is all that is necessary.</p> <p>Where a person takes a mortgage upon personal property, to secure a preexisting debt, without parting with any new consideration, or relinquishing any security, or incurring any liability, upon the faith of the mortgage, he he will not he 'considéred a bona fide mortgagee, as against the true owner of the property.</p>

The action was brought to recover the amount of a promissory note, in the words and figures following: “ Dollars 2,000. Six years after date I promise to pay Sarah Rankin two thousand dollars with interest at six per cent-. Wm. Rankin. Charlotte, March 1st, 1846.” The complaint described the testatrix as “ Sarah Donihugh, (known also as Sarah Rankin.)” The defense was a set-off against the testatrix. The action was referred by an order of the court.

This action was commenced bby the plaintiff, as indorsee and holder, against the defendant, as second indorser of a promissory note, dated August 23, 1844, made by Robert W. Lowber, payable to John Lowber or order, fifteen months after date, with interest, at the Bank 'of Uenesee, for fifteen hundred dollars, indorsed by John Lowber and the defendant. The defendant’s answer was a general denial of all the allegations of the complaint.

This was an appeal from a judgment of the Steuben county court. The action was commenced before a justice of the peace, to recover back the sum of $>65 which had been paid by the plaintiff upon a parol contract for the sale of a farm by the defendant to the plaintiff. The complaint was for money lent, and money paid.

This action was originally commenced before a justice of the peace, and was certified to this court, by the county judge of Monroe county, who had been counsel for one of the parties. _ The action was brought to recover §65, being rent which became due from the defendants on the 1st day of October, 1846, upon a lease from one Orrin Sperry to them, executed on the 10th day of April, 1843, and which rent had been assigned to the plaintiff, by Sperry.

This action originated in a justice’s court. It was brought by the 'plaintiffs as commissioners of highways of the towns of Batavia and Stafford, against Blair, to recover sundry penalties for not removing an encroachment on a public highway called the town line road between said towns, pursuant to an order made by the said commissioners, jointly, of which a copy was served and a written notice given to Blair.

This action was brought to recover a portion of the amount secured by a bond dated October 14,1849, executed by the defendants to the plaintiff, in the penalty of $2490,-with a condition as follows: “Whereas the said Nancy Stewart has loaned to the said William T. Cuyler the sum of twelve hundred and thirty dollars, being nearly all she is worth, and which is her principal dependence for a comfortable support and maintenance during her lifetime ; but in case there should be…

<p>Where a witness is impeached by proof that he has made statements on other-occasions inconsistent with his tentimony, evidence that he has at different times made statements similar to what he has testified in the cause, cannot he received, to fortify his testimony.</p>

This was an appeal by the defendant from a judgment entered at special term. The action was for goods, wares and merchandise sold and delivered to the defendant.. The answer denied that there was. any indebtedness on the part of the defendant.

Appeal by the defendants from a judgment of the county court of Monroe county. The action was for an assault and battery. The complaint was general, without any allegation as to the residence of the defendants.

This was an action to recover the value of a steamboat and a canal boat, for not returning the same according to the condition of a charter party, of which the following is a copy. “Articles of agreement made and entered into this 25th day of July, A. D. 1851, by and between Edwin Ames of the one part, and Edgar Belden of the city of Rochester of the other part, witnesseth: the said Edwin Ames of the one part, has this day chartered and hired unto the said Belden of the…

This was an action to recover damages for the false and fraudulent representations made by the defendant, in the sale of a horse to the plaintiff. The plaintiff proved on the trial that he purchased a mare of the defendant, giving in exchange therefor a yoke of oxen and a silver lever watch valued at $80 ; that the defendant then and there represented, as an inducement to the trade, that the mare was perfectly gentle and kind; which representation he knew to be false.

This was an appeal by the defendant from a judgment entered upon the report of a referee. The facts sufficiently appear in the opinion of the court. I. The mortgage should have been filed at the time it was given, and not having been thus filed, was void as against the defendant, who was a purchaser in good faith, at a constable’s sale. The filing is in lieu of actual change of possession, and therefore should have been immediate; (2 R. S. 136, §§ 5, 9, 10.

Appeal by the defendant from a judgment entered upon the report of a referee. The action was brought against the defendant, as the maker of two promissory notes, the one bearing date January 24,1849, by which the defendant, for value received, promised to pay JSTehemiah Seeley or bearer, three days after date, with interest, the sum of $91.39, on which a payment of $58.32 was made by the defendant on the 28th of March, 1850.

This was an appeal by the plaintiffs from a judgment entered at a special term. The action was brought to recover damages for the non-delivery of grain upon a written contract executed by one Adison Gardner and the defendant, on the 25th of May, 1846, which was subsequently modified by a parol agreement betwefen those parties.

This was an action for the partition of real estate. The opinion sets forth the facts. The cause was heard on the complaint and answer.

This was an appeal ■ from a judgment of the Montgomery county court. The action was for tilling a dog. The defense was first, a denial, secondly that the tilling was done in defense of the defendant’s person from an attack of the dog; that he was dangerous and mischievous and accustomed to bite mankind, which the plaintiff well knew, and did not kill him; that he attacked the defendant in the night, and was a nuisance, and as such liable to be killed.

The action was brought to recover calls made upon the capital stock of the plaintiff’s company.

This action was brought to recover calls made by the plaintiffs upon the defendant’s subscription to the capital stock of their company.

Motion on the part of the defendants to vacate an injunction. The plaintiff; who was a manufacturer of glass at the village of Clyde in the town of Galen, in the county of Wayne, complained that the defendants, who were glass manufacturers at Cleveland, in the county of Oswego, were fi'audulently using his trade marks; and he sought to restrain them from so doing, and to recover damages therefor.

Action to recover the price of land sold. The road of the defendants was located' across the farm of the plaintiff, and in February, 1851, the president of the railroad company, who had authority to negotiate for, and purchase, the right of way, appli7 ed to the plaintiff to purchase the land necessary for the road across his farm. The plaintiff asked $2000 for the right of way.

On the fourth of June, 1851, a resolution was passed by the common council of the city of Eew-York, that Wall-street, on the northerly… Held: that the pendency of proceedings to widen the street, until they should assume the form of an order or judgment concluding all parties, created no obligation on the owners to desist from “ the usual and ordinary enjoyment of property to which they had an absolute title.” At a subsequent period, as late as 1840, another injunction…

This was an appeal by the defendant from an order made at a special term, denying a motion made by him to vacate an order of arrest.

<p>Appeal from a decision made at a special term, allowing two defenses to be separately stated, in an action for slander.</p>

This action was brought by the plaintiff against the defendant in a justice’s court, for an alleged injury to his mill, arising from the defendant throwing tan-bark into the stream, which floated down into the plaintiff’s pond, filling his race and getting into his flume, &c. The defendant’s tannery was situated on the same stream—the Charlotte creek—with the plaintiff’s grist mill, and was about five miles above it.

This was an action of ejectment, and the following facts appeared in the case: On the 14th day of August, 1848, Carlton Humphrey being seised in fee of the premises in question, conveyed them by deed to his daughter, Mrs. Blood, the wife of-the plaintiff.

This was an appeal by the plaintiffs, from a judgment of nonsuit, at the circuit. The action was brought to recover the possession of real estate. The complaint set forth that William Howard sen., being seised in fee simple, conveyed the same to the plaintiff by deed, in or about the month of May, 1852.