Volume 4 — Abbott's New Cases

Appeal by defendants from an order affirming tax ation of costs. Gustavus Isaacs sued the Hew York Plaster Works for the recovery of damages for breach of contract, and .the issues were tried twice. Held: entitled them to costs, including all the costs of all proceedings except where the court had rightfully made a different disposition of the costs on appeal (Van Wyck v. Baker, 11 Hun, 309). IV.

<p>Preliminary objection to motion.</p> <p>This action was for an alleged libel. The defendant, at special term, moved to strike out the complaint for reasons specified in the moving papers, and the motion was granted.</p> <p>The plaintiff appealed to the general term from said order striking out the complaint. The defendant noticed the appeal for argument at January term, 1878, and when the cause was reached in order upon the calendar, took a default, and dismissed the appeal. Subsequently during the same term, the plaintiff on notice moved that the default be opened and cause restored to the calendar.</p> <p>objected preliminarily, and showed by affidavit that the order appealed from was granted with $10 costs ; that the order had been served several months ago; that the costs had not been paid ; that plaintiff gave no security on the appeal, nor procured an order staying the collection of the costs ; and insisted that, although plaintiff might appeal from such order without payment, yet his appeal being regularly dismissed, his proceeding to reinstate' the appeal were stayed by virtue of section 779 of the new Code.</p>

Sarah Lyons sued Magdalena Murat, to reform a certain deed, alleged to have been obtained by the defendant by fraud, trick, and device. The defendant’s answer denied all the allegations of fraud, &c., and alleged that the property in question was held by the defendant: first, by a valid deed of conveyance executed and taken in good faith, and second, by virtue of a devise in a will. These pleadings were verified by the parties.

<p>Fbivolous Answeb.—Injunction in Pboceedings to wind up an Insubance Company.—Defenses.</p> <p>In an action on an insurance policy, the company answered that it could not pay the money due, because it was under injunction at suit of the attorney general, in proceedings to wind it up for insolvency, whereby it was restrained from exercising any of its corporate powers, or paying any moneys except salaries of employees—Held, insufficient as against the plaintiff; since he had not been enjoined. Defendant could not take advantage of proceedings instituted against it by others to hinder plaintiff from perfecting his rights.*</p> <p>The statute does not authorize the court to stay proceedings by creditors, pending an application to wind up the affairs of the company.</p>

Trial by the court. This action was brought by William S. Palmer, as receiver of the New York Collar Company, against Marvin S. Clark, as marshal, to recover $239, alleged to have been the balance of a sale by defendant under an execution, left in his hands after satisfying said execution and deducting his fees, poundage, and all sums to which he was entitled by reason of said execution. On September 2,1875, one David Gr.

Appeal by defendants from a judgment and from an order denying a motion on the minutes for a new trial. Charles J. Lowrey sued the Brooklyn City and Newtown Railroad Company for injury sustained by him, by his foot being caught in their switch at á street-crossing. Defendants, in pursuance of an agreement with the City Railroad Company, connected their road from Fulton to Washington street at the cross-walk in front of the City Bank.

Motion to vacate service of summons. Selden Hetzel, commenced an action against the Tannehill Silver Mining Company for $1,134.28, the unpaid balance on a judgment obtained in Nevada. The present action was commenced by serving the summons and complaint on Joseph H. Colton on July 2, 1877, in the city of New York.

Demurrer to the portion of defendant’s answer setting up the ratifying act of the legislature as a defense. This action was brought by Cornelius A. J. Hardenbergh, supervisor of the town of Shawangunk against Eli Van Keuren, et al., on an official bond, to recover the sum of $115,000, the amount of the penalty conditioned therein.

Trial by the court. Y. Mumford Moore, as administrator of Margaret Williams, deceased, brought this action against the rector, warden and vestrymen of St. Thomas’ Church, Ravenswood, to foreclose a mortgage alleged to have been made by defendants. The answer admitted incorporation, and alleged that neither the bond nor the mortgage were ever executed by defendants; that the signing and the affixing of the corporate seal were without authority from the defendants.

Action to recover value of bank stock retired from the capital. Trial by the court. This action was brought by Nathan. Seeley against The New York National Exchange Bank of New York to recover $1,000, the value of ten shares of the capital stock of defendant. The plaintiff was the owner of twenty-five shares of the par value of $2,500, of the full-paid capital stock of the defendant.

Receiver’s motion to compel debtor to assign. Macaulay & Co., on April 16,1874, recovered a judgment; against the defendant Baggett for the sum of $2,408.60, and issued execution thereon, which was returned unsatisfied, and supplementary proceedings were instituted, resulting in the discovery of the property sought to be reached by these proceedings.

Motion to confirm referee’s report. Benjamin F. Van Valkenburgh and Henry K. Bonk obtained a judgment on July 23, 1875, for $408.50, against Elias B. Doolittle and others. Doolittle was afterwards adjudged guilty of contempt in parting with two certain promissory notes (exceeding the judgment in amount) while under an injunction in supplementary proceedings.

<p>Referee’s Deed.</p> <p>Under section. 1244 of the Code of Oiv. Pro. a conveyance of property, sold by virtue of an execution, or sold pursuant to a judgment, must distinctly state, in the granting clause thereof, whose right, title or interest was sold, and is conveyed, without naming, in that clause, any of the other parties to the action.</p> <p>Proper form of such clause in a referee’s deed on foreclosure.</p>

Sel ah Chamberlain brought this action against Warren E. Greenleaf, surviving partner of the firm of Greenleaf, Norris & Co., to obtain from the late firm of Greenleaf, Norris & Co., about $500,000 in stocks and bonds alleged to have been hypothecated by him, on payment by him of the sum of $192,000 advanced upon the security thereof.

Y. common pleas, affirming a judgment of the third district court of New York city. Held: directly or inferentially, that the legislature has the power of interfering with the charters. On page 61, he notices cases when the legislature may interfere with the concurrence of the corporation (See also Dillon on Municipal Corp. § 35, &c.).

This was an action upon a judgment by Rowland B. Malloy against Edward W. Vanderbilt, individually and as administrator, &c., and others. The judgment was recovered on November 14, 1853, for $4,790.90. It was docketed that day in the clerk’s office of the city and county of New' York, against Oliver Vanderbilt. The judgment debtor died intestate on October 19, 1868, leaving a widow and several children, and the descendant of a deceased child. .

This action was brought by John Preusser against William H. Florence, owner, and one Hart, a contractor, to foreclose a mechanic’s lien. On June 18, 1874, the defendant Hart made a contract with the defendant Florence to build a hotel for him for the sum of $12,000. The payments were to be made in installments as the work progressed, the last payment being the sum of $2,000, which was not to become due until all the work had been completed.

John Bussell brought this action against Hannah Weinberg, Mary L. McCrum and John J. McCrum, to foreclose a mortgage on certain real estate, in the city of Brooklyn, and for judgment against said defendants for deficiency. The evidence showed that the mortgage was made by Mary L. McCrum and John J. McCrum, her husband, to said John Bussell, to secure the payment of their joint and several bond for $4,000.

The action was by Helen J. Canzi against William C. Conner, sheriff, et al. The plaintiff appealed from the judgment therein.

Motion by an alleged bankrupt to vacate an order to show cause and an injunction in bankruptcy proceedings, and for the dismissal of the petition for adjudication of bankruptcy.

Action against sureties on administrator’s bond. Trial by the court. Owen F. Browning brought this action against Fernando De 0. Vanderhoven and George P. Cummings, sureties on administrator’s bond, to recover an extra allowance of $70 granted by the surrogate of New York county.

Trial by referee. This suit was brought by Selah Chamberlain against Warren E. G-reenleaf, survivor, &c., for the purpose of marshaling the assets and distributing the property of the firm of Greenleaf, Norris & Co. One of the members of the firm, John B. Norris, died on February 15, 1878. Augustus W. Greenleaf died on February 28, 1878. The defendant in this suit was the sole survivor of the firm.

Jeremiah Dalton sued H. Loughlin in the Third District court of the city of New York and the case was there tried, November 3, 1876, by Mr. Justice Parker without a jury.

Motion by plaintiff to compel purchaser at a foreclosure sale to complete his purchase. The action was brought by the Mutual Life Insurance Company of New York, against Ebenezer H. Balch and others, to foreclosure a mortgage on premises in the city of New York.

This action was brought by John M. McGruffin against William B. Dinsmore, president of the Adams Express Company, to recover $20,000 damages for false imprisonment and maiicious prosecution, and special damages by reason of the alleged publication in certain New York newspapers, by the defendant’s company, of the arrest.

Demurrer to plea in abatement. The defendant, Henry Clews, was indicted at what purported to be a court of oyer and terminer for Chautauqua county, in January, 1878. The material facts sufficiently appear in the opinion. A. Hazeltine, Jr., district-attorney, for the people.

This is. an action by Catherine Clancy against Thomas O’Gara and others, for the construction of portions of the will of John Eeddy, deceased, who died March 8,1874.

<p>Will.—Action for its Construction.</p> <p>A devisee under a will, who claims a mere legal estate in the real property devised by the will, where there are no trusts, cannot maintain an action in equity for its construction; and the same rule applies to one interested under the will, but claiming in opposition to a clause therein.</p> <p>J3o held, where a daughter, a devisee under the will of her father, claimed that it should be adjudged that the devise to her was of an absolute fee in the estate, unaffected by a devise of the same over, in the event of her death married, to the heirs of J. D. and her own issue,—it being also claimed by the plaintiff that the devise over to the heirs of J. D. was illegal and void.</p>

<p>Motion to stay creditors from maintaining an action against the assignor under general assignment for benefit of creditors. The action in question was to recover a money judgment against him for goods sold.</p>

This was an action in the city of Hew York by Mary Pritchard against Richard H. Pritchard for absolute divorce. Judgment was duly rendered on defendant’s default, to the plaintiff, for absolute divorce ; and an allowance of $150 counsel fee, with costs and disbursements, was granted to the plaintiff’s counsel.

<p>Social Clubs.—Liability of President.</p> <p>A social club, though without formal constitution and by-laws, and without purposes of profit or pecuniary advantage, may be held liable, in an action under the statute, as a joint stock association, or association of seven or more persons having a common interest.*</p> <p>In an action against the president, as such, the evidence showing a purchase by him while acting as a committee for the club, the question should be submitted to the jury, whether the credit was given to the club or not.</p>

<p>Will.-—Trust Estate.—Power oe Sale.—Equitable Conversion.—Vesting.—Power oe Appointment.—Gift in lieu oe Dower.—Corporation.-—Suspension of Power of Alienation.—Rents and Profits.— Apportionment.</p> <p>A direction in a will that income, rent, &c., be paid by the executors to a beneficiary, gives them power to collect.</p> <p>If a will manifests an intention that the executors should collect the rents, &c., of real property, thus constituting them trustees to receive and pay over the income, they take by implication an estate in the lands, and have power to let them.*</p> <p>This estate or interest, however, lasts only so long as the purposes of the trust require.</p> <p>Where the trust was to receive rents and. profits, and apply them to the use of the beneficiary for life, with a direction to sell the lands within three years after her death, and distribute the proceeds,—Held, that the estate or interest of the trustees terminated with the death of the beneficiary for life; but the power of sale survived her death.*</p> <p>The will directed the executors, at such time after the widow’s death as they should think best, not exceeding three years, to sell all the estate and pay gifts thereinafter declared, and a subsequent clause gave them discretionary power to sell, which was wholly unqualified in respect to time. Held, that these provisions effected an equitable conversion of the whole estate into money for all the valid purposes of the will, at the time of the death of the testator.</p> <p>This conversion is limited by an entire or partial failure of the purpose of the sale.</p> <p>The general rule is that when legacies are payable in the future, with no condition annexed, and no expressed intention to the contrary, whether the proceeds are of personal property or of real estate directed to be sold to discharge them, they vest at the death of the testator, and this though a life estate may intervene before payment. †</p> <p>The will gave to testator’s widow $30,000, to be disposed of by her as she might think best, by her last will and testament; but provided that in case she should not survive him, or surviving should not make any disposition of that sum, then it should be paid to persons named by the testator.</p> <p>Held, 1. That as the clause was entire and the words of gift distinctly qualified, it gave her merely a power of appointment.</p> <p>2. That a direction in her will, disposing of the money, was effectual, although directing it to. be received by her executors, and coupling the disposition of it with the administration of her own estate and its sufficiency to pay her legacies, ‡</p> <p>A power of appointment as to personalty, to be executed by will, “duly and properly executed,” is executed by a will made' in accordance with the law of another State, where the appointor re^ sided. §</p> <p>Provisions in favor of the widow may, though not so expressed, be deemed in lieu of dower, upon a general view of the will, and evidence that they have been so treated by the widow.</p> <p>A power of appointment given .to the widow together with other provisions, in lieu of dower, is exempt from abatement equally as other gifts.</p> <p>To prove incorporation under a general law, sufficient to enable the company to take a legacy, a substantial compliance with the statute in respect to organization is sufficient.</p> <p>Under the benevolent corporations act, L. 1848, p. 467, c. 319 (2 B. 8. 6 Ed. 439),—which requires the corporators to file a certificate “in which shall be stated . . . the number of trustees, directors or managers to manage the same, and the names of the trustees, directors or managers of any such society for the first year of its existence; but such certificate shall not be filed unless by the written consent and approbation of one of the justices of the supreme court, ” &c.,—the number of persons who shall manage the affairs, &c., may be deemed sufficiently stated, if the names of all are given; and the approval and filing of such a certificate is sufficient evidence of compliance with the law to justify the corpora-tors in believing their organization to be regular.</p> <p>In determining how much of his estate the testator has given to benevolent, &c., corporations organized under the act of 1848, for the purpose of applying the restriction contained in section 6,— forbidding any one leaving a wife or child or parent, to bequeath to such corporation more than one-quarter of his or her estate,— bequests to corporations other than those formed under that act, and who are not affected by the restriction of section 6, are not to be taken into account.*</p> <p>Under charter restrictions as to the amount of property which a corporation may take and hold, the capacity of the corporation to take a bequest which might increase its property beyond the statute limit must be determined by the law in force at the time of the vesting of the bequest.</p> <p>This test applies in ascertaining both the amount of the corporate property, and the value of the bequest.</p> <p>Where the charter power of the corporation to purchase, hold and convey, is upon the express proviso that its estate shall never exceed a specified sum, its common law capacity to take personal property by bequest is abridged.</p> <p>The objection in such case is available, not only in a direct proceeding by the State, but also by a private person whose interests are affected by a transgression of the rule, such as an heir at law, in a proceeding for the settlement of the estate.</p> <p>The courts will not give effect to a transgressive bequest in excess of the amount authorized.</p> <p>Neither the increased value which would accrue to lands of a charitable institution if they were used for other purposes than their charity, nor their use for the purposes of the charity without realizing an actual income, can be regarded as “annual income,” within the meaning of the restriction in the charter of such an institution upon holding property which shall exceed a specified annual income.</p> <p>“Annual income” means annual receipts, and is not the equivalent of annual value.</p> <p>If the value of the use could be regarded as “annual income,” it „ should be computed, not with reference to the market value, but to the annual value to the corporation for the special purpose to which the property was devoted.</p> <p>A charter restriction upon the amount of property which the corporation is capable of holding, is not abrogated by a statute passed subsequent to the vesting of the bequest, confering power to take by gift, grant or devise, without any express restriction as to amount.</p> <p>It seems, that such restrictions, measured by annual income, are not to be construed as restrictions of the income which the corporation may take, by gifts of money or property to be used and applied toward the immediate support of the institution and its beneficiaries.</p> <p>It seems, that a prohibition to “take and hold,” does not forbid taking and spending.</p> <p>Societies unincorporated at the time of vesting, not allowed to take.</p> <p>A bequest to an unincorporated auxiliary society, assigned by them to a parent society which is incorporated, cannot be sustained in favor of the parent society.*</p> <p>The Board of’Education of the City and County of New York have power to take by bequest, for the supply of a library for the College of the City of New York.</p> <p>The boards of trustees for common schools in the respective wards of the city of New York are corporations to the extent of holding property transferred to them for school purposes, and have power to take personal property by bequest for the benefit of their respective schools.</p> <p>Devises and bequests to trustees for the purpose of founding a library for schools create legal and valid trusts.</p> <p>Where the will, under a trust to pay the income to a beneficiary for life, directed the executors to sell the real estate at such time as they should think best, not exceeding three years after the termination of the life estate, but also contained another and unrestricted and discretionary power of sale,—Held, that there was no illegal suspension of the power of alienation, but, in legal efiect, the will contemplated distribution at the termination of the life estate.</p> <p>Directions allowing such time as may be reasonably convenient and necessary for sale, after the termination of a life estate which reaches the statutory limit of the suspension of the power of alienation, are not regarded as a postponement of the vesting of the interest in the legatee to whom the proceeds are to go.</p> <p>Under a bequest to the board of trustees of each of the several wards of the city as they may exist at the time of the final distribution of the estate,—Held, that trustees in new wards, created within the city limits after testator’s death and before final distribution, might take, but not trustees of wards created by the annexation of new territory to the city.</p> <p>A bequest to the board of trustees of each ward, in a specified sum for each “ward school above the grade of primary,”—Held, on extrinsic evidence of usage in designating schools, and of testator’s cognizance of their organization, to give the specified sum for each grammar department, even where two such departments existed in the same building and under the same member.</p> <p>If trustees holding only in trust to pay over rents and profits to a betneficiary for life, lease for a fixed term which runs beyond the termination of the life estate, and receive the rent, the rent of the quarter in which the life estate terminates should be apportioned, and so much as accrues in respect to the period within the lifetime, be paid to the representatives of the life tenant.</p> <p>Under the gifts and powers of sale above stated,—Held, that the real estate vested at testator’s death in the legatees who were then legally capable of taking real estate, subject to be divested by the execution of the power of sale, and subject to payment of the valid legacies, and to the payment to the heirs of the sums included in the invalid legacies, and that the rents and profits intermediate the termination of the life estate and the sale followed the same disposition, except that the heirs were entitled to the rents and profits corresponding to any share, invalidly bequeathed, of the residuary estate. The valid legacies, and the , $80,000 appointed by the widow's will bore interest from her death.</p> <p>Where the will effects such an equitable conversion, but part of the objects fail for incapacity of the legatees to take, the heirs at • law take, as money, the proceeds left in the executor’s hands by such partial failure.</p> <p>Testator gave to six legatees named, one of whom was held incapable of taking, “ all the rest, residue and remainder of my estate, whatever the same might be, in equal division thereof, being one equal sixth part to each person, association, institution, asylum or society mentioned.” By the next and last disposing clause, he expressed his desire that no bequest “should fail, or be rendered void by reason of the misnaming of any individual or institution, but that the same should be carried into full effect without regard to any such misnomer, if such institution can be ascertained with reasonable certainty; also, should any individual or institution named in this my will not have existence at my decease . then, in all such cases my will is that the amount so intended for such institution or individual shall lapse and be merged in my general estate, and form a part of the rest, residue and remainder thereof.”</p> <p>Held, 1. That the residuary gift was not to six legatees as a class, but six gifts, one sixth part to each.</p> <p>2. The gifts, whether residuary or specific, which failed for the reason that the legatees had not corporate capacity to take, did not fall into the residue, but went to the heirs at law.</p> <p>As the will stated the grounds of failure contemplated by the testator, all others were excluded.*</p> <p>In an action for the construction of a will, the court may grant an extra allowance both to plaintiffs and defendants, not exceeding $2,000 in the aggregate on each side.</p> <p>In such a case, where the heirs had commenced proceedings for distribution, the costs and allowances of the executor’s action for construction were charged unequally, half upon the validly-disposed residuary fund, and the other half upon a one sixth share which had been adjudged to the heirs at law.</p> <p>Commissions of executors, under 2 B. 8. 93, § 58, are to be computed upon the principle of aggregating the sums until they reach the amount fixed by the statute.</p> <p>This section of the statute substantially adopted the rule of the court of chancery of October 16, 1817.</p> <p>The words “for receiving and paying out all sums of money not exceeding one thousand dollars,” refer to aggregate and not to separate sums.</p> <p>The addition of the word “ of,” by the amendment of 1849, in subdivision 3 of section 5, did not change the method of computation.</p> <p>An executor is entitled, under chapter 362, Laws of 1863, in addition to his commissions, to an allowance not exceeding ten dollars a day for each day engaged in preparing for accounting.</p> <p>No other extra allowance can be given to an executor for services.</p> <p>The receipt of sums from the sale of real estate, and investment of the same to produce income, is not such an act of “receiving and paying out ” as entitles an executor to commissions.</p> <p>Executors can receive commissions only upon the aggregate of capital and income as received once and paid out once.</p> <p>Commissions upon income, retained by an executor upon an erroneous system of calculation, -should be repaid, unless the beneficiary had such accurate knowledge of the system of charges as to amount to a ratification of, or an acquiescence in them.</p> <p>The executors having acted in good faith should not be charged interest upon such sums retained.</p> <p>An executor cannot make annual rests in his account unless he makes an actual accounting.</p> <p>When the testator’s widow is given the whole income for life, and has also qualified as executrix, she is entitled, in an estate exceeding $100,000, to commissions upon sums received and paid for the benefit of the general estate.</p> <p>Surviving executors are not entitled to commissions upon a sum paid to personal representatives of a deceased executrix for arrears of commissions due to her.</p> <p>A furnace erected in a house belonging to the testator’s estate, and occupied by his widow, who is beneficiary of the income, is for her personal comfort, and the cost must be charged to the income account. It is not a “permanent improvement.”</p> <p>Plate glass windows in a store, and a tin roof, are “ permanent improvements,” and the cost should be apportioned.</p> <p>An agent, in his account, reported to executors the sum of $475 as collected from a tenant, when it was not actually collected; and the executors, in accounting before the surrogate, credited the estate with said sum. The tenant failed, and the sum not being collected, but without fault of the agent, Held,—proper for the executors to repay it.</p> <p>Attorneys, in their bill, charged aggregate sums for aggregate work, without dividing charges into items, either of time or performance. Held, a proper form of bill in a case involving great labor.</p> <p>The fees of attorneys and counsel are to be measured by the importance and value of their services, and the responsibility imposed upon them, and not limited to the costs and extra allowance.</p> <p>Interest not allowed upon money, arising from the proceeds of real estate, and inherited by the testator’s heirs because legacies had lapsed.</p> <p>An executor, who qualifies after moneys or securities have been received by another executor, is entitled to one-half commissions thereon, allowed for “receiving,” the value of the securities being determined by the highest market quotations on the day he qualified.</p>

<p>Application for injunction and receiver pendente lite.</p> <p>The plaintiffs, Thomas A. Baisbeck and James Baisbeck, and the defendants, Ignatz Oesterricher, Thomas, Jacob and Edward Wimbridge, entered into an agreement under seal, dated July 7, 1877, by which they agreed to form a corporation to be called “The Photo-Plate Company” for the purpose of making relief plates for printing, and for other purposes. Pursuant to such agreement, they subscribed and acknowledged a certificate as provided in the first section of the act to authorize the formation of corporations for manufacturing and other purposes, passed February 17, 1848, and the acts amendatory thereof. The certificate was dated July 7,1877, and acknowledged on that day. It was filed in the office of the clerk of the city and county of New York (the proper county), pursuant to the act, on September 22, 1877. No duplicate of the certificate was filed in the office of the secretary of state as required by the act (Laws of 1848, ch. 40; Lams of 1866, ch. 799).</p> <p>The parties treated the corporation as regularly organized, and proceeded with its business pursuant to the certificate of incorporation, from the date of the, filing of the certificate up to the time of the commencement of this action ; when the plaintiffs, conceiving that the neglect to file a duplicate of their certificate in the office of the secretary of state resulted in a failure to effect a valid incorporation under their agreement, and having reason to complain, as they believed, óf the acts of defendants, brought this action to obtain the appointment of a receiver of the joint property, and to wind up the business. A preliminary injunction was obtained, which plaintiffs moved to have made permanent.</p> <p>cited: Wells v. Gates, 18 Barb. 554; Dennis v. Kennedy, 19 Id. 517.</p> <p>cited as to omission to file duplicate certificate: 3 Rev. Stat. (Edm. Ed.) 733, §§ 2, 9 ; Mokelumne Hill Mining Co. v. Woodbury, 14 Cal. 424; Cross v. Pinckneyville Mill Co., 17 Ill. 54; Baker v. Backus, 32 Id. 79; Tarbell v. Page, 24 Id. 48; Stone v. Great Western Oil Co., 41 Id. 85; Thompson v. Candor, 60 Id. 248; Willard v. Trustees, &c., 66 Id. 55; Cochran v. Arnold, 58 Penn. 407; Swartwout v. Mich. Air Line R. R. Co., 24 Mich. 394. As to attacking corporate franchise collaterally: Angell & Ames on Corp. (9th ed.) ch. 21, §§ 731, 778; Rex v. Pasmore, 3 Term, 244, 245; Regents of the University of Md. v. William, 9 Gill & J. 365; Canal Co. v. R. R. Co., 4 Id. 1; Commonwealth v. U. S. Bank, 2 Ashm. 349; Nickles v. Rochester City Bank, 11 Paige, 118; Abb. Dig. of Corp. 339, 340; Rondell v. Fay, 32 Cal. 354; Matter of Reformed Presb. Church of N. Y., 7 How. Pr. 476; McFarlane v. Triton Ins. Co., 4 Den. 397; Caryl v. McElrath, 3 Sandf. 176; People v. President, &c. Manhattan Co., 9 Wend. 351 Matter of the N. Y. Elevated R. R. Co., 3 Abb. New Cas. 401; Methodist Epis. Union Church v. Pickett, 19 N. Y. 482; Jones v. Dana, 24 Barb. 395; Baker v. Backus, 32 Ill. 79 ; Tarbell v. Page, 24 Id. 48; Groesbeck v. Dunscomb, 41 How. Pr. 302; Sands v. Hill, 42 Barb. 651; Cooper v. Shaver, 41 Id. 151; Cole v. Dyer, 29 Geo. 434; Hinman v. Ellsworth, 27 Conn. 282; Howard Mutual Loan, &c. Assoc. v. McIntyre, 3 Allen, 571.</p>