Volume 2 — Barbour's New York Supreme Court Reports

In Equity. Henry L. Webb and Alfred Douglass recovered a judgment against Derick C. Groot, on the 15th day of May, 1841, for $347,75; upon which executions were issued on the 26th of April, 1845, to the sheriffs of Albany and Schenectady, with directions to collect $249,75 and interest thereon from May 20, 1841, and sheriff’s fees. In 1843, Douglass assigned his interest in the judgment to Webb.

In Eq.uity. The bill in this cause was filed to foreclose a mortgage executed by the defendant Boynton to one Haskins. After the execution of the mortgage, Boynton conveyed his equity of redemption in the mortgaged premises to trustees for the benefit of creditors. The trustees sold the premises at auction. They first put up for sale a house and lot, and it was publicly stated that it would be sold free of incumbrances. The defendant Yandenburgh became the purchaser.

In Equity. These were appeals from decrees made by the vice chancellor of the third circuit. Jacob D. Lansing, on the 6th of March, 1832, executed his bond and a mortgage upon certain premises in Troy, to William James, to secure $8000 and interest, payable in four years. On the 12th of March, 1836, Lansing sold to Latham Cornell and Prescott, defendants in the first of these causes, a part of the mortgaged premises.

<p>It is a génferál rule that besides the parties to a mortgage, those only are proper parties to a suit for the foreclosure thereof who have, subsequent to the date of the mortgage, acquired rights Or interests under the mortgagor or mortgagee. Per Harris, J.</p> <p>The plaintiff may also make prior incumbrancers parties to the bill, for the purpose of having the amount of such incumbrances liquidated, and paid out of the proceeds of the sale; or he may, at his election, have the premises sold subject to such prior incumbrances. Per Harris, J.</p> <p>A mortgagee, in filing a bill of foreclosure, has no right to make a person who claims adversely to the title of the mortgagor, and prior to the mortgage, a defendant in the suit, for the purpose of contesting the validity of such adverse claim of title.</p> <p>In 1835, A. L. H. became the owner of a farm of 141 acres, subject to a right of dower therein, in favor of C. H. While he was such owner, a judgment was recovered against him in favor of V. R., which became a lien upon the farm. In Sept. 1840, A. L. H. and C. H. the doweress, joined in a deed of the farm to W., which contained a covenant that the premises were free and dear of and from all charges and incumbrances, except the reservations in the original lease of the farm. W. thereupon re-conveyed to C. H. 30 acres of the farm, which it was agreed she should receive in satisfaction of her dower. In December, 1840, W. executed a mortgage upon the remainder of the farm, to P.; and the mortgaged premises being sold under a decree of foreclosure, in October, 1842, P. became the purchaser. On the 20th of September, 1842, C. H. sold her 30 acres to A. L. H., and took from him a mortgage thereon, to secure the purchase money. P., having obtained the control of the V. R. judgment, caused the 30 acres to be sold thereon, in June, 1843, and at the sale he became the purchaser. On a bill filed by C. H. against A. L. H. and P. to foreclose the mortgage given by A. L. H. for the purchase money of the 30 acres, Held that the deeds executed in September, 1840, were to have the same effect as if, instead of conveying the whole farm to W., the plaintiff and A. L. H. had only conveyed to him the 111 acres which it was intended he should have, and at the same time A. L. H. had conveyed to the plaintiff the 30 acres.</p> <p>■Held also, that the plaintiff, by her covenant that the land conveyed to W. was free and clear of all charges and incumbrances, had deprived herself of the right which she otherwise would have had, to a contribution from W., or from P. who stood in his place, towards the payment of the judgment under which the 30 acres were sold, according to his equitable proportion thereof.</p> <p>Held further, that the effect of that covenant was not only to release any claim which C. H. might have had against W., or those holding under him, on account of the judgment, but also to render her liable to indemnify W. and his grantees, against that judgment. That consequently the 30 acres conveyed to C. H. were, in equity, first chargeable with the payment of the judgment; and that C. H. was not entitled to any relief against P.</p> <p>A party to an instrument, in the absence of fraud or deception, is always to be presumed to have intended what the instrument itself imports.</p>

In Eq.uity. The bill in this cause was filed to set aside a bond of indemnity executed by the plaintiff to the defendants, the execution of which it Avas alleged was procured by the defendants, fraudulently. On the 30th of November, 1841, Hassill Garrison, a brother of the plaintiff, entered into a contract with the defendants for the purchase of a farm of 135 acres in PittstoAvn, at $25 per acre.

In Equity. This was an appeal from a decree of the assistant vice chancellor of the first circuit.

In Equity. Under the provisions of an act of the legisla^ ture, passed in 1790, certain commissioners appointed by that act surveyed and divided lot No. 20, in the Hardenburgh patent, into smaller lots, and marked their boundaries.

<p>This was an action of assumpsit, tried at the Columbia circuit in September, 1825, before Edmonds, C. Judge. The plaintiff declared upon a guaranty endorsed on a promissory note. The note given in evidence upon the trial was in the following words: “ For value received I promise to pay to Chester Brown or bearer, fifty dollars, six months from date, with use. Canaan, April 2, 1838. [Signed] G. F. Brown.” On the back of this note was endorsed a guaranty, signed by the defendant, as follows : “ I guaranty the payment of the within.” The plaintiff proved that the note was transferred to him by the defendant, in exchange for a note which he held against the defendant for borrowed money: and that the transfer was made a day or two after the note had been given by the maker. The defendant moved for a nonsuit, on the ground that no demand and notice had been proved, and also on the ground that, no consideration being expressed in the guaranty, it was void by the statute of-frauds. The motion for a nonsuit was denied. and the defendant excepted. The defendant also offered to prove, “ that from the time the note became due until the latter part of the year 1843, the maker of the note was abundantly responsible and able to pay it, and that since that time he had failed, and was, at the time of the commencement of this suit, utterly insolvent.” This evidence was rejected, and the defendant excepted. The jury, under the direction of the circuit judge, gave a verdict for the plaintiff for the amount of the note and interest. The defendant now moved for a new trial, on a bill of exceptions.</p>

In Eouity. The bill in this cause was filed to foreclose a mortgage executed by the defendants, Benjamin Losee and wife, to Jonathan Burr, in his lifetime, to secure the payment of $5000 with interest. The mortgage was dated March 25,1843, and, with the bond accompanying the same, was executed in anticipation of a loan which it was expected Burr would make to the mortgagor.

In Eutjity. Exceptions to bill for impertinence. The bill was filed by the wife against her husband for a divorce a vinculo, on the ground of adultery, and contained an averment that the defendant had abandoned his wife and neglected to provide for her. This averment was excepted to.

In Equity. This was an order to show cause why an injunction should not be issued, to restrain the prosecution of a suit at law against the plaintiffs. The bill was a bill of inter-pleader. It alleged that the plaintiffs, being about to erect a church in the city of New-York, entered into a contract with the defendant Carr to do the carpenter’s, joiner’s, and painter’s work, for the sum of $3445, to be paid at different times, as the work progressed.

In EauiTY. The bill in this cause was filed by Isaac Borland and Letty his wife, the said Isaac being one of the children and heirs at law of Samuel Borland deceased, against the other heirs, the widow, and the executors, of the testator, to obtain a judicial construction of his will and codicil and for the sale or partition of the real éstate of which the testator was seised at the time of his death.

In Equity. The bill was filed in this case by the executors of the last will and testament of William I. Printup, to obtain a decision of the court upon the construction of one of the provisions of the will, and a direction as to the payment of a legacy bequeathed by that provision. The facts are stated in the opinion of the court.

In Equity. The bill in this cause had been sworn to and filed with the clerk of St. Lawrence county. It asked for an injunction, in the prayer for relief and also in the prayer of process; but no injunction had been issued. Service of a subpoena had been made on part of the defendants; some of whom had given notice of an order to deliver bill, &c. The plaintiffs, in this stage of the cause, discovered that it was necessary to make other persons defendants.

This was an action of assumpsit, brought against the defendants as the executors of Sidney Smith, deceased, upon promises by the testator, founded upon the implied obligation of the deceased, that a draft for $30,000, which he sent to his sister, Mrs. Harris, to be enjoyed by her as a gift, in the event of his death, before he should reach her residence, should be accepted and paid by the drawees.

Motion by the defendants to set aside the report of a sole referee. The action was trespass on the case, brought by the plaintiff, against the defendants for placing, or causing to be placed, certain persons having the small pox in a house in the plaintiff’s possession, without his consent, and against his will. The facts, as they appeared in evidence before the referee, are fully stated in the opinion of the court. The referee made a report in favor of the plaintiff for $75.

Ejectment, tried before Gridley, Circuit Judge, at the' Oswego circuit in June, 1847.

This was a writ of error to the Herkimer common pleas. Crain, the plaintiff, prosecuted the defendants before a justice of the peace in Herkimer county, upon an instrument under seal, and bearing date on the 25th day of August, 1845, by which the plaintiff, for a valuable consideration, conveyed to the defendants and one Abraham Van Horne, their heirs and assigns forever, a right of way or road from a certain point upon a highway in the town of Warren, through the lands of…

This was an action of ejectment for premises described in the declaration as “ lot No. 39, in a patent of lands granted to John Jost Petrie.and others, bounded on the north by the Mohawk river, east by lot No. 40 in said patent, being the same lot of land formerly owned by Hendrick Orendorff.” In opening the cause to the jury, the counsel of the plaintiffs stated that he sought to recover possession of an island in the Mohawk river, opposite to Jot 39, as a part of the lot,…

Ejectment for an undivided part of lot 8 in the second tract of Staley’s patent, tried at the circuit in the county of Herkimer.

This was an action for money had and received, and was heard before referees. On the hearing it was proved that in August, 1846, a judgment was confessed, upon a bond and warrant of attorney, by David Hunt, to the plaintiff and defendant in this cause and three other persons, to secure them for endorsements and other liabilities separately, incurred by them for the judgment debtor. The bond was in the penal sum of $20,000, conditioned for the payment of $15,000 on demand.

This was an action of slander, for charging the plaintiff with having killed the defendant’s hdrses by administering poison to them. The defendant pleaded not guilty, and gave notice of justification. The cause came on for trial at the Albany ciróuit in June, 1845. On the trial the plaintiff proved the speaking of the words as laid in the declaration.

This was a writ of error to the Sohoharie common pleas. On the 25th day of September, 1843, John Schoolcraft, Jun. recovered a judgment against Adam Sternbergh, before John Gebhard, jun. a justice of the peace, for $25,77, damages and costs. The suit was by summons personally served, and the recovery was upon a promissory note signed by A. Sternbergh for $19,63 and interest, dated Dec. 14, 1839.

<p>When in ejectment the plaintiff declares for four equal undivided ninth parts of certain premises, and proves on the trial, title to one equal undivided third part only, he should be permitted to take a verdict according to the proof.</p> <p>Such a variance is not fatal to such action, and should be disregarded by the judge at the circuit.</p> <p>In such cases, an amendment, on motion for new trial, will, if necessary, always be allowed.</p> <p>The statute forbidding the purchase of pretended titles, does not apply to judicial sales.</p>

<p>Where in an action of ejectment, after issue joined, the defendant at the circuit pleaded in bar puis darrein continuance, that the plaintiff had entered upon and taken exclusive possession of the lands and premises described in the declaration, and still retained the same, such plea was held to constitute no bar to the further maintenance of the suit, and was adjudged bad on demurrer.</p> <p>An objection to the form of such a plea is not available on general demurrer.</p> <p>The case of Hdrkness v. Harhness, (5 Hill, 213,) explained and overruled; the court holding that since the adoption of the revised statutes, a plea in abatement, praying judgment of the writ, is good in a suit commenced by capias ad respondendum..</p>

This was an action on the case, tried before Parker, Cir. J., at the Rensselaer circuit, in April, 1847. -The cause had once before been tried before Willard, Cir. J., and a new trial granted. For a statement of the pleadings and a report of the case as then presented, with the opinion of the court, see 1 Denio, 466.

This was an action of replevin in the cepií, fot* certain goods alleged to have been taken by the defendant in the lifetime of Tilt. The cause was tried before Parker, Cir. Jv, at the Albany circuit, in April, 1845.

<p>This was an action of covenant, to recover for rent due upon a lease executed by the plaintiff to the defendants, for a farm in the town of Schodacb. The term of the lease was three years from the first of April, 1841. The rent was $400 per year, payable in half yearly payments. The plaintiff claimed a small balance upon the second year’s rent, and the whole of the third year’s rent, except a small amount collected upon a distress warrant which had been issued by the plaintiff against the defendant Rockefeller. The defendant Niver alone defended the suit. He insisted, by way of defence, that at the end of the second year, by mutual agreement between the parties, the premises were surrendered to the plaintiff; by whom they were re-let to the defendant Rockefeller alone. The facts, so far as they are material to the questions decided, are stated in the opinion of the court. The cause was referred to a sole referee, who reported that there was due to the plaintiff $411,58. The defendant Niver moved to set aside the report.</p>

This was an action on the case, for seduction, tried before Parker, circuit judge, at the Schoharie circuit, in May, 1847. The declaration stated that Getty Ellen Me Garry, the infant step-daughter- and servant of the plaintiff, was debauched by the defendant, and on the 6th day of August, 1846, was delivered .of a child, whereby the plaintiff lost and was deprived of the services of his said step-daughter and servant.

This was an action on the case, tried at the Albany circuit in February, 1847, before Parker, Cir. J. The first count of the declaration averred that, under and by virtue of an act of the legislature, passed April 27, 1835, entitled “ an act to improve the navigation of the Albany basin,” the defendants were authorized to take possession of, and widen, and construct the draws in the bridges over the basin in the city of Albany.

In Eguity. Oil the 4th of August, 1837, Chalíes B. Prescott, being the owner in fee of certain premises in the city of Troy, subject to the payment of an annual rent of $12,50 to Blandina Dudley, executed a mortgage upon the premises to the loan commissioners of the county of Rensselear to secure the sum of $1280.

Pursuant to the provisions of the 57th section of the title of the revised statutes relating to wills of real and personal property and the proof of them, (2 R. S. 66,) the late circuit judge of the third circuit directed a feigned issue to be made up to try the validity of the last will and testament of Isaac L. Van Alstyne, deceased. The issue thus made up was tried at the Columbia circuit, in March, 1846, before Parker, circuit judge.

This was an action of ejectment to recover six acres of land in the town of Coeymans, in the county of Albany. The plaintiffs claimed the premises in fee. The cause was tried before the Hon, Amasa J. Parker, as referee. The plaintiffs proved a judgment recovered by one Briggs against Martin H. B. Holmes, before a justice of the peace, for $150,93, docketed in the office of the clerk of the county of Albany, on the 13th of August, 1842.

This was an action of assumpsit for work, labor and services, and also upon a special count on a promise by the defendant to pay the plaintiff $100 if he would work for him until he should be twenty-one years of age. The cause having been referred, the referees made a report in favor of the defendant. The plaintiff moved to set aside the report. The other facts in the case are sufficiently stated in the opinion of the court.

This was a writ of error to the Greene common pleas. The plaintiff in error was defendant below. The action was slander. The declaration set forth the following charges, as having been made by the defendant against the plaintiff; “ You have committed perjury.” “ You stole the cattle.” “ He perjured himself, for he stole the cattle.” “ He perjured himself before the grand jury.” The defendant pleaded the general issue, and two pleas of justification.

<p>This was an action of trespass quare clausum fregit. The declaration described the locus in quo as follows: “ Abutted and bounded east or easterly on lot number eighteen, Lewis’ patent: on the south by lot number ten, Buffington’s patent: on the west on lot number three, Buffington’s patent: on the north by lot number one, Buffington’s patent.” The defendant pleaded specially that “the said close &c. is a part of lot number ten Buffington’s patent and now is and at the said several times when the said several trespasses are by the said declaration supposed to have been committed was the close, soil, and freehold of one Iram Brewster whose hired man, agent, and servant the defendant was, and under whose directions he acted &c.” To this plea the plaintiff demurred; assigning for cause, among other things, that it amounted to the general issue.</p>

The subsequent counts ere similar in form, alleging that the accused used and emoyed a certain instrument, her hand, her finger, certain violent eans, &c., upon the body of the mother, with the like intent, id with the same result; and concluding in the same manner, he accused was convicted, upon the indictment, of a misdemea>r. And several exceptions having been taken, by her counsel, decisions made during the trial, which exceptions sufficiently ipear from the opinion of…

In Eg.xjity. This was an appeal, by the plaintiff, from a decree of the assistant vice chancellor of the first circuit. The bill was filed by James Mason, one of the sons of the late John Mason of the city of Nevv-Yorlc, deceased, against the executors and other persons interested in the estate of his father, for a construction of the last will and testament of the decedent.

In Equity. This was an appeal by the defendants, from a decree of the late assistant vice chancellor of the first circuit.

This was an action of assumpsit for use and occupation, with a count for money had and received, &c. Plea, non-assumpsit, with a notice of set-off and that the premises were occupied by the defendant and held under indentures of lease sealed by the plaintiff, and assigned to Wm. K,. Tremmells; and that the defendant occupied as tenant at sufferance, by the consent and permission of Tremmells, the assignee of the leases, and not otherwise.

In Equity. This was an appeal, by the plaintiffs, and by the defendant McGown, from separate parts of a decree of the late assistant vice chancellor of the first circuit, made on the 31st of December, 1840. The bill was filed against Andrew McGown, then the sole defendant. On the coming in of his answer, the bill was amended, making Edward Sand ford a party defendant.

The relator was convicted at the November term of the Dutchess oyer and terminer, in 1846, on an indictment for burglary in the second degree. From the testimony on the trial, and facts subsequently discovered, there existed no doubt in the minds of the judges, that the defendant was innocent. His sentence was suspended in November until the oyer and terminer in March, 1847.

In Equity. The bill in each of these causes was filed by the plaintiff as receiver of The Canajoharie and Catslrill RailRoad Company, against the defendant therein as a stockholder of the company, to compel him to pay the balance due upon his shares of stock, to satisfy the debts of the company.

In Equity. This suit was brought to foreclose a mortgage executed by the defendant, Charles Poling, to the testatrix, dated the 2d day of October, A. D. 1822. The bill was taken as confessed against all of the defendants, except St. Felix.

In Equity. This was a creditor’s bill, filed against Riley, the judgment debtor, and Goldthwaite; the assigtlee of Riley, under an assignment of a portion of his property, which assignment was alleged by the plaintiff to be fraudulent and void as against creditors, for the reasons set forth in the bill. These reasons are sufficiently stated in the opinion of the court.

The plaintiff’s declaration in this cause was entitled of May term, 1845, and was in assumpsit on the common counts; to which was subjoined a bill of particulars stating that the action was brought to recover the amount of a promissory note of which a copy was annexed.

The plaintiff brought an action of ejectment against the defendant for “ a certain lot or piece of land with the appurtenances, situate in the town of Moriah in the county of Essex, and being known and distinguished as lot No. twenty-seven (27) of a tract of land called and known as Platt Rogers’ Road Patent.” The plaintiff’s right of entry was stated to be on the first day of January, 1846, and the ouster was alleged to be on the first of March thereafter, and the plaintiff…

The declaration in this cause contained three counts for an assault and battery, and false imprisonment, alleged in the first count, to have been committed on the 16th of December, 1845, at Champion in the county of Jefferson, and in the second and third counts to have been committed on the 26th of January, 1846, at the same place. The defendants, Ellis and Brooks, united in joint pleas, separate from the other defendants, Lynde and Lewis.

This was a motion on the part of the defendant to set aside the report of a referee. The action was assumpsit for wharf-age ; and the declaration also contained the common counts. The plea was the general issue, with a notice of set-off for goods sold, &c. and the money counts.

This was an action of ejectment, in which the plaintiff, in the first count of her declaration, claimed the whole of lot D. in lot No. 3, in great lot No. 1, in the 24th allotment of the patent of Kayaderosseras. And in the second count of the declaration, she claimed one undivided twenty-fifth of the same lot. The cause was tried at the Saratoga circuit, before Willard, circuit judge, in May, 1846.

Motion to set aside report of referees. On the 17th of June, 1846, the plaintiffs made a special contract, by which they agreed to make and cast for the defendants four hundred stoves, between the first day of July and the first day of January then next, to be delivered at Troy, at 34 cents per pound. The defendants agreed that they would, on the first day of each month, settle with and pay the plaintiffs in cash and notes, what should then be due to them.

This was an action of ejectment, tried at the Essex circuit, in June, 1847. The land in dispute is situate in the towns of Elizabeth-town and Lewis. Held: that under the deed from the comptroller, the title to no part of the lot which was in fact lot No. 227 passed. That if any title passed by the comptroller’s deed, it was to lot No. 228. And that therefore, the plaintiffs were entitled to recover.

Slander, tried before Willard, C. Judge, at the Saratoga circuit in December* 1846. A trial was had before a justice of the peace, between Abraham K. Underhill as plaintiff, and William V. R. Taylor as defendant; who is the defendant in this suit. On that trial the plaintiff in this suit was a witness on the part of the plaintiff in that suit.

Demurrer to declaration. The declaration stated that one Jacob Schyer, on the 28th of March, 1844, “being indebted to the plaintiff, made his certain order in writing and directed to the defendant, to deliver to the plaintiff or bearer forty cords of merchantable beech wood, and twenty cords of merchantable birch wood, and then and there delivered the said order to the plaintiff, and the defendant being indebted to the said Jacob Schyer in a large sum of money, then and…

<p>• On the 15th of September, 1846, Charles Blood and wife, the plaintiffs, brought an action against Sawyer and Blanchard, the defendants, before a justice of the peace of Franklin county, and on the joining of the issue, they declared in trover for three cows, which the defendants wrongfully took and converted to their own use, to the plaintiffs’ damage of one hundred dollars. The defendants pleaded the general issue and a justification by virtue of an execution issued out of the Franklin county common pleas, ip favor of Seth Blanchard against Charles Blood, for $100,93. On the 16th of October, 1846, the cause was tried before the justice, and the plaintiffs before the justice recovered against the defendants, $45 damages, and $3,64 costs. From this judgment, the defendants appealed to the Franklin common pleas, and the cause was tried in that court at the April term, 1847; when a verdict was found for the plaintiffs, Charles Blood and wife, for fifty-three dollars damages. A bill of exceptions was taken in the trial, by the defendants’ counsel, to certain decisions of the common pleas; and the cause was brought before this court on a writ of error.</p> <p>On the trial on the common pleas, the plaintiffs’ counsel introduced and provedan ante-nuptial agreement under the hand and seal of the plaintiffs, Charles. Blood and Clarissa Baker, then a, single woman, but now the wife of the said Charles Blood, bearing date at Cornwall in Upper Canada, the 29th of June, 1822. This instrument recited that a marriage was about to be solemnized between the said Chas. Blood, of Fort Covington in the state of New-York, and Clarissa Baker of Cornwall, Upper Canada; that the said Clarissa was the owner, in her own right, of certain real estate in Canada, and certain personal chattels, among which are named three milch cows, and the whole of which articles are set out, with the valuation thereof, in a schedule annexed ; and it was thereupon covenanted and agreed that all the said real and personal estate should be forever at her disposal, notwithstanding the said marriage, and in case the said intended marriage was solemnized, the said Charles Blood should not become the owner, or have any right, title, or claim to any part of the said property, but the same should remain her property and be solely at her disposal, and never be directly or indirectly applied to any other purpose than what she should direct; and in case the marriage was solemnized, and the said Charles should die before the said Clarissa, none of her property should be taken to pay his debts, but should be and remain at her own disposal^</p> <p>It did not appear when the marriage was solemnized, but it was assumed on the argument to have been shortly after the date of the articles. It was proved that in the last week in May, 1846, the defendants took three cows, which were the third generation of the three cows mentioned in the ante-nuptial contract. The witness understood the defendant Sawyer acted as a deputy sheriff, and had an execution against Charles Blood. The cows taken were raised on the farm on which the plaintiffs have lived ever since they were married. It appeared that this farm was bought with the money of Clarissa, and was her farm. Other evidence was given, but not material to the questions raised. The defendants’ counsel moved for a nonsuit on the grounds, 1st. Thai, this action could not be maintained in a court of law; the remedy, if any, being in equity. 2d. That the action should have been brought by the husband alone, as husband or trustee of the wife, and that the wife was improperly joined. The motion was denied by the court, and the defendants’ counsel excepted.</p>

This was an action of trespass, assault and battery, and false imprisonment, tried at the Saratoga circuit in December, 1844, before Willard, then one of the circuit judges. The defendants pleaded the general issue, and gave notice of a justification.

<p>Where the last will and testament of a testator contained this clause, “ and my said wife, having now in her possession, the sum of $850, in money, I direct and request my said executors to pay her the sum of $150 more, so as to make her the sum of $1000; my meaning and intention is to give her the sum of $1000.” Held, that this was a legacy of one thousand dollars, being, as to $150, a general legacy, and as to $850, a demonstrative legacy.</p> <p>Held also, that the onus lay with the executor to shew that the legatee had, at the death of the testator, $850 in money in her hands.</p> <p>Held further, that the withdrawal of the $850, by the testator in his lifetime, which sum, at the date of the will, was in the hands of the legatee, or the investment of it in promissory notes, which were received by the executor as a part of the assets of the estate, did not operate as an ademption of any portion of the legacy.</p>

Demurrers to replications. The declaration averred that the plaintiffs were administrators of Reynolds, and it contained the common counts' for goods, wares, and merchandise, sold and delivered by the plaintiffs. Same on a quantum valebant. Also, for money lent and advanced, and paid, laid out; and expended by plaintiffs for, and had and received to their úse by, Worthington in his lifetime, and on an account stated.

<p>In Equity. An order was made, at the special term of this, court held in Schenectady, in November, 1847, requiring Jacob Banta, Isaac Marcellus and Henry Banta, executors of the last will and testament of John H. Banta deceased, the plaintiff, ta show cause before this court at the December general term in Saratoga county for 1847, why this suit should not stand re-, vived in their names, or the bill in this cause be dismissed so far as the interests of such executors are concerned. From the papers used on the motion, it appeared that the original bill was a creditor’s bill, filed in 1837, against John Hagaman, the judgment debtor, and the other defendants as his assignees in trust, to set aside the trust, conveyance and for the payment of the plaintiff’s judgment. The judgment debtor suffered the bill to be taken as confessed, and is now insolvent. The other defendants put in an answer in 1840, to which no replication was ever filed. Neither party moved in the cause. And in 1845 the plaintiff died; having first duly made his last will and testament, and therein appointed the said' Jacob Banta, Isaac Marcellus and Henry Banta his executors; who have since proved the will and taken upon themselves the execution thereof. It appeared that before the motion was made for an order to show cause, the defendants applied to the said execu-. tors to revive the suit or to discontinue it, and they declined having any thing to do with it, one way or the other. The executors, in showing cause against the order, stated that if the deed should be set aside which it was the object of the bill to accomplish, they had ascertained no benefit would accrue to them, as executors, or to the heirs of their testator ; and that they should gain nothing by the revival and further prosecution of the suit. They asked merely to be excused from the payment of costs.</p>

In Equity. In this case the plaintiff procured a divorce a mensa et thoro from the defendant in March, 1840. In accordance with the decree a reference was made to a master to ascertain and report, what allowance should be granted to the plaintiff.

In Equity. This was a motion by the plaintiffs, for a receiver, and a cross motion by the defendants to dissolve the injunction. The nature of the bill, and the facts stated in it, and in the answers of the defendants, sufficiently appear from the opinion of the court.

<p>An assignment, by a debtor, of his property real and personal, which is declared to be made “in order to provide for the payment of his debts;” the object and design of which appears, from the whole instrument, to be that the assignees shall sell and dispose of the assigned property and convert the same into money, and -pay the debts of the assignor, is not rendered invalid by the insertion of a provision therein authorizing the assignees to “ 'manage and improve” the assigned property; where the real estate is heavily incumbered and threatened with mortgage sales, and requires care and skill in order to keep and preserve it until a sale can be beneficially eifected.</p> <p>The authority given to the assignees, in such an assignment, to manage and im* prove the assigned property, is not to be construed—in the absence of any thing else in the instrument, favoring such a construction—as empowering thé assigneéá to retain the assigned property tbr the purpose of erecting buildings, and making alterations and repairs upon the real estate, and thus to hinder, delay, and prevent creditors from collecting their just debts.</p>

Iiy BauiTY. This was an appeal from a decision of the surrogate of tl>e county of Richmond, admitting to probate the will of Joseph SJeguine. The testator, on the 2d of April, 1844, made his will, which bore the following attesting clause, and none other: $ Published, pronounced and declared by the said Joseph Seguine, to be his last will and testament, in the presence of uswhich was signed by three witnesses. The attesting witnesses were all examined before the surrogate.

In Equity. This was a motion for an attachment against the defendant for not appearing before a referee and - -uking an assignment to a receiver, and for not paying the costs growing out of his previous default in thé case.

In 1839, the members of three Methodist churches in Brooklyn united in forming a new church, which they denominated the Centenary Methodist Episcopal Church, in commemoration of the centenary of methodism. They caused themselves to be incorporated under our general act as to religious corporations, and by voluntary contributions among the members of that persuasion at large, built themselves a meeting house and parsonage.

Assumpsit on a promissory note dated October 4, 1836, for $200, made by the defendant, payable to - the plaintiff, Eliza Ann Geer, or bearer, four years after date, with interest after two years. The cause was tried at the Tompkins circuit, before Shankland, justice, on the 27th September, 1847. On the trial the plaintiffs proved the execution of the note, by Chauncey Pratt, the subscribing witness, and after proving the amount of interest accrued, rested the cause.

The defendant was indicted and convicted in the court of sessions of Livingston county, upon an indictment charging him with having written letters to Stephen Heath, threatening to burn and destroy his property unless he would send the defendant, within a certain time, the sum of $16, claimed by the defendant to be due from Heath. On the trial, the public prosecutor gave evidence tending to prove that the letters in question were written by the defendant.

The declaration was in the usual form for an assault and battery. Pleas, 1. Not guilty, and issue. 2. Son assault, &c. 3. Molliter maims imposuit, in defence of defendant’s possession. Replications, 1. To 2d plea, taking issue. 2.

The debtor and Altillio Valtellina were both residents of Havana, and there made a contract with each other, and three others, to establish an opera in the United States. Yaltellina and some of his associates came to the United States, and entered upon the undertaking; which finally failed. He remained in the United States, came to the city of New-York, where he resided several months, and took the preliminary steps to become naturalized.

In Equity. Harris and Woodward were rival bidders for a contract with the navy department for carrying the United States mail for ten years, from Panama to Astoria in Oregon. Harris’ bid was $199,000 a year, and Woodward’s was $250,000 to build and run monthly three war steamers.

In Equity. Bill to foreclose a mortgage. Turner having a Trinity Church lease for twenty-six years, on certain premises in New-York, executed a mortgage to the plaintiff, and afterwards sold his equity of redemption, which, by sundry mesne conveyances came to Deborah Kane. She died, and the premises came into the possession of her administrator, who was made a party to this suit.

<p>In Equity. This was a petition, by the Mechanics’ Bank, praying for the removal of E. K. Collins from, his office of trustee. The Harlem Rail-Road Company being indebted on several bonds, amounting in the aggregate to $82,500, executed to E. K. Collins, one of the directors of the company, and a holder of such bonds to the amount of $35,000, a chattel mortgage on ten locomotives, 26 eight-wheeled cars, 14 four-wheeled passenger cars and 33 freight cars, 170 horses and harness, and an unfinished car, conditioned for the payment of said bonds at the times therein mentioned for such payment, One of the bonds for the amount of $15,000 was transferred to the Mechanics’ Bank by C. Parshall, as collateral security for the payment of a loan for that amount by the bank to Parshall, and two of them, amounting to $7500, had been transferred to H. Bruen. The loan to Parshall having become due, the bank demanded of the rail-road company payment of the bond for $15,000, which was refused, and thereupon the bank demanded-of Collins, the trustee, that he should proceed to foreclose the mortgage. He repeatedly promised that he would do so, but finally refused, on the ground that certain negotiations were going on which would enable the rail-road company to pay, those bonds. Thereupon the bank, on notice, presented this petition, to remove the trustee. The application was opposed by him, on the same grounds on which he had placed his refusal, and because the owners of a majority in amount of the bonds did not wish to have the mortgage enforced.</p>

On habeas corpus to admit the prisoner to bail. The prisoner was convicted at the New-York general sessions of the peace in November, 1847, of a misdemeanor in procuring an abortion upon the person of one Maria Bodine, and was sentenced to be imprisoned in the penitentiary for the term of one year. A bill of exceptions was taken on her trial, and the record was removed by writ of error to the supreme court.

In Equity. The bill in this cause was filed by the plaintiffs as sole acting executqrs of the last will and testament of Richard Towning, late of the city of New-York, deceased. The bill set forth that the testator being possessed of a considerable real and personal estate, made and published his last will and testament, in writing, bearing date July 3d, 1840, in the following words: “ In the name of God, amen.

<p>In EauiT v. On a bill filed by the wife, against her husband, for a separation on the ground of cruelty and desertion on his part, the defendant put in an answer setting up the plaintiff’s bad conduct. After his answer was filed, he applied for leave to put in a supplemental answer, alleging adultery on her part, committed since he had put in his answer.</p>

<p>In Egujity. The plaintiff resided in the city of New-York, and the defendants, Auguste Bonnaffé and Edward Bonnaffé, were merchants, and dealers in exchange, doing business at Havre, in France, under the firm of Bonnaffé & Co., and having an agency at New-York. This agency was under the control of Charles Bonnaffé, who was authorized and empowered to draw bills bn the firm. On the 13th of November, 1847, the plaintiff applied to Charles Bonnaffé, the agent, for a bill on Havre, to remit the sum of $5025,53. The agent offered to sell a draft for that amount, at 60 days, and to accept pay for the same in business paper; he, as the plaintiff alleged in his bill, representing Bonnaffé & Co. to be good; The plaintiff, rélying on the representations of the agent, purchased of him two bills of exchange dated Nov. 13, 1847, at 60 days, one for 13,000 francs, and the other for 13,258 francs and 40 centimes. The plaintiff thereupon delivered good business paper, in payment for the same. The plaintiff alleged that at the time when this transaction occurred, Bonnaffé &, Go. were insolvent, and that the agent knew such to be the fact; that such drafts were not accepted, and the agent declared they would not be paid. The plaintiff also alleged, in his bill, that the business paper so given in exchange for the drafts, was still in the hands of the agent; that Bonnaffé & Co., by their agent, on the 11th of Dec. 1847, made an assignment for the benefit of their creditors, to Charles H. Sagory and Victor De Launay. The bill in this cause was filed against Bonnaffé & Co., Charles Bonnaffé, the agent, and De Launay and Sagory, the assignees of Bonnaffé & Co., and prayed that the defendants might be enjoined from parting with the notes received' by the agent from the plaintiff, and that those notes might be decreed to be delivered up to the plaintiff. The answer of the defendant Charles Bonnaffé admitted the fact of his agency, and of the sale of the bill* of exchange to the plaintiff; but denied his having made any representations as to the solvency of the drawees. He also stated that the plaintiff, immediately after purchasing the bills, put them in circulation, and that they were not then in his possession; that the agent acted bona fide in the whole transaction ; believing, at the time, that the drawees were perfectly responsible, and that the drafts would be duly accepted, and paid ; that some of the business paper so received in payment for the bills had been negotiated, and was in the hands of bona fide holders. The defendant denied, generally, all bad faith either in the original transaction, or in the subsequent assignment ; and alleged that he was the only one of the defendants named in the bill who knew any thing about the transaction; Bonnaffé & Co. being non-residents, and having no knowledge of the transaction except what had been derived from him. And he insisted that the plaintiff could not, and ought not to have or maintain this suit against him, because he acted merely as the agent of Bonnaffé & Co., and not as principal. He also insisted that the plaintiff was not entitled to any relief from a court of equity, having an adequate remedy at law. The defendants De Launay and Sagory also put in their answers; but Bonnaffé & Co. did not appear in the cause. On the 11th of Dec. 1847, an order was made in the suit, directing that a preliminary injunction issue therein, and that the defendants show cause why the same should not be made absolute. The plaintiff now moved for an absolute injunction, and for the appointment" of a receiver. The defendants Charles Bonnaffé and De Launay & Sagory, upon the answers put in by them, and upon affidavits, opposed the motion.</p>

In EauiTY. ' This was a bill filed by the husband against his wife, for a divorce, on the ground of adultery. The offence charged against the defendant was denied in her answer, and the adultery of the husband there set up. After the filing of the bill, on the application of the defendant, a gross sum of $250 was allowed her, to defray the expenses of her suit.

In Egluity. This was a creditor’s suit. The cause was heard on pleadings and proofs.

In Equity. The bill of complaint in this cause alleged that on the 6th of January, 1823, John P. Fellers executed, under his hand and seal, and delivered to James Burt, a bond in the penalty of $300, conditioned for the payment of $150 within two years from the date thereof; and that the same was secured by a mortgage, of the same date, on the premises described in the bill.

<p>In Equity. The bill in this cause was filed by Robert .Stuart and Mary R. his wife, for the purpose of enforcing a bond and mortgage made by Daniel W. Kissam, junior, for $20,000, which were held in trust for the plaintiff, Mrs. Stuart, by the defendant Joseph Kissam, who, it was alleged, fraudulently acknowledged satisfaction of the mortgage, without actual payment or satisfaction, and caused it to be cancelled of record. The plaintiff Mrs. Stuart sought to establish the bond debt against the estate of Daniel W. Kissam, junior, who was deceased, and to have a decree for its payment out of that estate in due course of administration, and to subject to the lien of the mortgage all the lands which it originally covered, save such portions as had passed into the hands of bona fide purchasers or mortgagees. The facts are very fully stated in the opinion of the court. The cause was heard upon pleadings and proofs.</p>

On the 29th of December, 1847, Dr. Van Hovenburgh, then health officer at the port of New-York, resigned his office ; and on the 28th of January he communicated that fact to the board of health and required them to fill the vacancy, under a statute which authorizes that board to supply any vacancy that may occur in the office of either of the health commissioners, whether arising from temporary inability or otherwise, “ but the person so appointed shall hold his office only…

This was an action of assumpsit, tried at the circuit irk the county of Onondaga, in December, 1846, before the Hon. Bowen Whiting, late one of the circuit judges.

This was an action of trespass on the case, tried before Justice Morehouse at the New-York circuit, in October, 1847.

<p>In EauiTv. This was a creditor’s bill against the judgment debtor and his brother and son, to whom, on his failure in business, he had made an assignment of all his property for the benefit of his creditors, The bill alleged that the assignment was fraudulent, and sought to have it set aside. The debtor had conveyed the house ip which he lived to one brother, in trust for his wife: had conveyed two other houses to another brother, in payment of an alleged debt to him, and two other houses to another brother in the same manner. He had conveyed all his household furniture to his son, a single man, who lived with his parents, and then made the assignment in question, comprehending his phoses in action and a few articles of personal property. On the filing of the bill an injunction issued restraining the defendants from meddling with, or disposing of, any of the debtor’s property, extending to the property thus assigned. After the answers were put in, a motion was made to dissolve the injunction ; which was denied. A motion for a receiver was also made, which was granted as to all the property covered by the general assignment, as well as of the household furniture, and the property of the debtor generally.</p>

Ejectment, brought by the plaintiffs as the executors of Hester Walgrove deceased. The jury, by a special verdict, found that Samuel Walgrove, by his last will, devised to his wife Hester all his real estate, to be at her entire disposal, but should any part thereof remain unsold at the time of her decease, he gave the same to his children, to be equally divided among them.

In Eqjjity. This was an appeal, by the plaintiff, from a decree of the assistant vice chancellor, dismissing the bill of complaint. On the 1st of October, 1825, the plaintiff gave the defendant his note in the following words: “$14,600. New-York, October 1, 1825.

' This was an action on a lost negotiable note. The proof on the trial was, that the note had been endorsed by the payee, and had been passed off to a holder, who wrote over the name of the endorser, “ pay Edward Dewitt or bearer,” and then transferred it to one Rapelyea.

Motion by the defendant, F. M. Haight, to set aside report Of a referee. In May, 1841, the defendants formed a mercantile partnership in Rochester under the name of S-.

This was a motion by the defendants to set aside, for irregularity, a judgment record filed on the 2d of February, 1848, and to vacate an order made by Judge Edmonds on the same day, rescinding an order made by him on the 31st of January, 1848, staying the relator’s proceedings.

In Equity. This was an appeal, by the plaintiff, from a decree of the vice chancellor of the first circuit, dismissing the bill with costs. The bill alleged that in January, 1843, the defendants were doing business together as merchants, in the city of New-York, under the firm of Small, Williams & Co., and as such had a large demand accruing on account of goods sold and delivered, and otherwise, against Win.

The defendant was indicted for the murder of Mrs. Russell, and pleaded not guilty. He was tried at the oyer and terminer in Dutchess county, in April, 1848, before Justice Barculo. The following is the charge to the jury given by the judge. The facts of the case, so far as they bore upon the defence of insanity set up by the prisoner, sufficiently appear from the charge.

In Equity. Motion to dissolve an injunction. The plaintiff in this suit was the owner of property upon Fourteenth-street, in the city of New-York; and filed his bill on behalf of himself and others who might choose to come in, to restrain the corporation of that city, and their agents, from diminishing the width of the said street.

In Egluity. The plaintiff leased to one Armstrong certain premises in the city of New-York for five years. Within the first year of the term, the adjoining premises were so injured by fire that the plaintiff was compelled to take down the partition wall.

In Equity. In 1827, Geo. W. Bruen formed a copartnership with Thomas H. Smith, under the firm of T. H. Smith & Son, which continued until the death of Smith in Sept. 1829. T. H. Smith & Son were extensively engaged in importing teas and silks from China, and made an agreement with the firm of John Hone & Sons, auctioneers and commission merchants, to sell for them the goods which they might import, for certain commissions agreed upon.

In Eq.uity. This was an ordinary creditor’s bill, containing only the general averments, with no allegation as to any specific piece or article of property or assets. After a full answer of the defendant, denying that he had any property whatever, the bill for that cause was dismissed. On settling the decree,

In EauiTY. The defendant Susannah Drake, and her two daughters, Susan Drake and Ann, the wife of John F. Seaman, were seised in fee as tenants in common of nine several houses and lots, in the city of New-York. Seaman was seised of a life estate for the joint lives of himself and wife, in his wife’s third, and being so seised, he failed in business and made an assignment to the plaintiffs for the benefit of his creditors.

In Equity. The plaintiffs, residents in England, were the residuary legatees under the will of Hugh Gray McPherson, who died in the island of Jamaica on the 22d of March, 1835, of which will Robert Watt of that island, and others, were nominated executors. Watt alone qualified as executor and filed his inventory, which showed the property left by the testator to amount to $45,748,36.

In Equity. Bill for specific performance. The plaintiff was the owner of a judgment recovered in the superior court of New-York, for $9837,66, against John C. and Christian B. Morrison, on which a creditor’s bill had been filed. During the pendency of that suit, the defendant entered into a contract with the plaintiff, whereby the plaintiff agreed that for $4500 and the costs, he would compromise the claim.

<p>Where by an unsealed contract signed by S. and F., S. bargained and agreed to sell •to F. for $803, the pine timber on certain lots, F. to give his note endorsed by M. for the purchase money; and the note was afterwards executed in pursuance of the contract, and accepted by S. in fulfilment thereof; and F. entered upon the lots and commenced cutting and drawing off the timber; Held that the contract was an executed contract; and that on fulfilment of the stipulation to give a note for the purchase money, a present interest in the timber passed to F.</p> <p>Whether an instrument shall operate to pass an immediate interest in real or personal property, or rest in contract, depends upon the intention of the parties, to be collected from the whole instrument.</p> <p>Growing trees, being parcel of the land, are within the statute of frauds, and cannot be sold, or conveyed, except by a deed or conveyance in writing.</p> <p>But growing trees, although parcel of the realty, may be sold or conveyed in perpetuity, by an unsealed writing or conveyance; because by the conveyance a freehold estate does not *pass to the grantee.</p> <p>Estates less than freehold may be created or assigned by deed or writing without seal.</p> <p>Growing trees, by a valid sale in writing by the owner of the fee in the land, are severed, in contemplation of law, from the land, and become chattels personal.</p> <p>Where a conveyance of growing trees does not limit the time for the entry of the grantee Upon the land to cut and remove the trees, a right of entry passes, for an indefinite or reasonable time, for the removal ofall the trees.</p> <p>A conveyance of standing timber is not within the recording act; and a record of sue!) conveyance is not necessary to protect it against a subsequent bona fide purchaser, without notice, of the land on which the timber stands.</p> <p>Where the owner of the fee of land sells the trees growing thereon, and afterwards conveys the land, without any exception or reservation, the conveyance of the land will no't pass the title to the trees.</p> <p>And if the grantee of the land etits and reritoves the trees, the owner of the trees may bring replevin in the cejtit against him.</p> <p>Where the truth appears by the same deed or record which would otherwise work an estoppel, the adverse party iS not concldded from taking advantage of the truth.</p>

This was an application on the part of Christian Anthony for a rule to set aside the satisfaction, given by Geortner, one of the plaintiffs, of the judgment obtained in this cause. The action was brought on a draft given by the defendants upon their treasurer, in favor of Geortner &, Anthony, the plaintiffs; for $120,95, dated 30th March, 1846; pot negotiable. The plaintiffs, Geortner & Anthony, were partners, and stopped business in August, 1844.

This was a motion to set aside a nonsuit, and for a new trial in an action of slander. The words charged in the declaration were, “ He [the plaintiff] is engaged in serving writs upon the anti-renters and catching indians,” Ac.

This was an action of trespass, for taking and carrying away a quantity of hay, oats, rye, corn &c. The defendants pleaded separately. Betts pleaded not guilty, and Hubbell pleaded the general issue, and gave notice of justification, as purchaser under three judgments and executions against one George H. Clow. Clow lived on, and worked the farm of the plaintiff, Fiero, on shares, in 1843 and in 1844.

<p>The private property of the Seneca Indians is not within the jurisdiction of our laws respecting administration, And letters of administration, granted by a surrogate, upon the estate of a deceased Indian, are void.</p> <p>The distribution of the property of a deceased indian, among his relatives, according to the customs of the nation, passes a good title; which the courts of this state will not disturb.</p>

, This was a motion, by the defendant, to set aside the report of a referee. The referee reported that the sum of $96,13 was due to the plaintiff, from the defendant. The facts in the case, and the grounds of the motion, are stated in the opinion of the court, and in the arguments of the counsel.