Volume 4 — Barbour's New York Supreme Court Reports

<p>In Equity. This was a motion to dissolve an injunction. The bill was filed in the late court of chancery to restrain the sheriff of Columbia county from proceeding to advertise and sell certain lands of the plaintiff under warrants issued to him by the county treasurer, for the collection of taxes imposed under the act passed May 13, 1846, entitled “ an act to equalize taxation.” Several irregularities in the assessments were alleged, but the principal one was, that the assessors of the towns of Gallatin, Livingston and Taghkanic had refused to receive the affidavit of the plaintiff, and to correct the assessments in accordance with it. It appeared by the affidavits tendered that the plaintiff was largely indebted. The principal question argued by counsel was, whether, under the act referred to, the person assessed had the right to correct the assessment by his own affidavit, as in other cases of the assessment of personal estate.</p>

In Equity. This was a motion to dissolve an injunction on bill and answer. The bill was filed for relief against assessments and taxes imposed under the act entitled “ an act to equalize taxation,” passed May 13,1846, to collect which, warrants had been issued by the defendant as treasurer of Albany county. It was claimed on the part of the plaintiff that the said act was void, and if not void, that the assessments made under it were unjust, illegal and oppressive.

In Equity. The bill in this suit was filed for the admeasurement of the dower of the plaintiff Susan Leonard, as the widow of Philo Mills, in premises devised to the defendant by Sidney S. Mills, the son of Susan Leonard and Philo Mills, and for damages for the withholding of her dower by the defendant. Philo Mills died intestate.

At a regular annual meeting of school district No. 4, in the town of Halfmoon, a tax of five dollars, to repair the school house, and fifteen dollars for fuel, was voted. Held: and then a resolution was passed, revoking the resolution passed at the annual meeting in the previous October. The defendants were present and took no appeal to the superintendent.

<p>A recital, in a will, that the testator has executed a deed of certain premises to one of his sons, is evidence of a perfect execution of such deed, and that the grantee has the title to the premises ; so as to bar an action of ejectment brought by one of the heirs of the testator, for the recovery of an undivided portion of such premises.</p> <p>The destruction of a will, by the testator, is not a revocation thereof, unless he intends thereby to revoke it. And a lunatic can have no such intent.</p> <p>If a man is incompetent to make a valid will, he is equally incompetent to revoke a will made previously.</p>

This was a certiorari to John Willard, circuit judge of the 4th circuit, to review a decision made by him under the habeas corpus act, on the 12th June, 1846, refusing to discharge the plaintiff in error from custody under a warrant issued by a justice of the peace, committing him to jail as a disorderly person.

Dunlop commenced an action of assumpsit against McKnight, in the court below. He declared on the general counts for goods sold and delivered, and on the money counts.

This was an action against the defendant, as sheriff of the county of Albany, for the negligent escape, from the jail limits, of one John Baker who had been arrested on a ca. sa. issued on a judgment for costs in a suit in which Baker was plaintiff and the above plaintiffs were defendants. The defence was, that Baker went beyond the liberties of the jail with the assent of Wilkins. The suit was brought by the attorneys of the above plaintiffs, for their own benefit.

<p>Demurrer to declaration in debt on a bond given to the commissioners of highways of the town of Southold.</p>

<p>On writ of error to the common pleas of Suffolk county, to review a judgment of that court reversing a judgment of a justice’s court in an action of trespass quare clausum fregit.</p>

<p>Under a plea of right of way, in an action of trespass quáre ct'mswm fregit, the defendant is at liberty to prove a right Of way in himself, either by producing deeds to show it, or by parol evidence of twenty years' uninterrupted use, adverse or in hostility to, the owner of the land, from which a grant may be inferred. And a defendant, after having undertaken to prove an express grant of reservation of a way, by deed, may prove one by prescription. He is not bound to elect Ills mode of proof, and to abide by such election.</p> <p>It is competent for the owner of land and a person having a right of way over it, to change the route or location of the way, by mutual consent or agreement between them. And when the location has been changed, and a dispute arises, it will be for a jury to determine whether the change was made by agreement, and for the purpose of substituting a new way for the old, of the same permanent character • or whether the change was made, not in pursuance of any agreement, but for some temporary purpose; and, if the new way has been used by the párty having the easement, whether the use thereof was a matter of right, or a mere matter of favof, revocable at the pleasure of the owner of the soil.</p> <p>In the latter case the party using the new way would be a trespasser, if he should continue to use it after having been forbidden to do so; and the only remedy for him would be to go back to his original right, and seek to have the old road restored to him.</p> <p>But this doctrine is not applicable where there has been an actual change of location by mutual consent, and súch change was intended to be substitutional and permanent.</p>

<p>Where damages, sustained by the owners, of land taken for the improvement of a public highway, under and by virtue of an act of the legislature, have been assessed by a jury, and the verdicts of the jury have been laid before the board of supervisors, who have liquidated and settled the amount of damages due to the land owners respectively, pursuant to the statute, such land owners have a vested right to the sums awarded to them respectively, for such damages; and are entitled to a writ of mandamus to compel the board of supervisors to cause the same to be raised and paid to them.</p> <p>Such right will not be divested by a subsequent repeal of the statute under which the damages were assessed.</p> <p>The general power of the legislature to destroy vested rights, by a repeal of the statute under which they were acquired, considered and discussed.</p> <p>A legislative act, whether it be a positive enactment or a repealing statute, which takes away the vested rights of property of an individual for any purpose—except where property is taken for public use and upon a just compensation— is invalid, as being above the power, and beyond the scope, of legislative authority.</p> <p>The reasoning of the court in Butler v. Palmer, (1 Sill, 324,) so far as it tends to the conclusion that the repeal of a-statute can divest rights and interests in property, which have become vested under such statute, held to be unnecessary to the decision in that case, and as running counter to the general current of American authorities.</p> <p>The rule laid down in that case, as to the effect of the repeal of a statute, is applicable only to statutes giving penalties and conferring jurisdiction.</p> <p>Where an act of the legislature contemplates the taking of private property for public use, and makes provision for the payment of damages, the constitution requires that if any damages are sustained by individuals, by the taking of their property, compensation shall be made; and any subsequent act of the legislature, which tends to deprive such individuals of compensation, is void as being a violation of the constitution.</p> <p>The public use of a highway being but an easement, subject to which the owner of the land over which it passes retains his title, there is always a contingency by which the owner may return into the full possession of the land, on its being no longer required by the public. When this contingent event will happen is ordinarily unknown, and is wholly immaterial, as regards the rights of the land holder. Whether the public retains the use of the land for a century, or for a year, or but for a single day, cannot affect his title to a compensation. That becomes fixed, and vested, the instant hia property is tak,en for. public use.</p>

In Equitt. The bill in this cause was filed by the executors of Eliza McCarthy, late of the city of New-York, deceased, against the heirs, devisees, and next of kin of the decedent, for a construction of the last will and testament of the testatrix. The will was executed on the 5th of January, 1842, and the testatrix died on the 8th of July thereafter.

In Equity. This was a creditor’s suit. The bill' set forth the recovery of ^ judgment in the New-York common pleas, in March, 1847, for $9727,45 in favor of the plaintiffs in this suit, against the defendants Cass, Ward & Conover, as joint debtors, upon service of process on Cass & Conover.

In Equity. This was a rehearing of cases upon bill and cross-bill, originally heard before Justice Harris, at the special term in New-York, in December, 1847. The decision made at the special term is reported in 1 Barb. Sup. Court Rep. ATI.

Previous to October, 1845, the relators commenced an action of ejectment against the defendant to recover the possession of certain premises in the town of Greece in the county of Monroe, being a farm of about 145 acres, claiming to own the same in fee.

<p>Form and requisites of a decree against the stockholders of a corporation, for manufacturing purposes, formed under the act of March 22, 1811, on a bill filed by a creditor, subsequent to the dissolution of the corporation, to compel the payment, by the defendants, of a debt owing by the corporation; where a portion of such stockholders have paid for their stock in full, and have also paid other sums towards the debts of the company, and the other stockholders have not paid for their stock in full, and have contributed nothing towards the payment of its debts.</p> <p>Where a corporation formed for manufacturing purposes, under the act of March, 1811, was dissolved by limitation of time, and a new company, having the same amount of capital and bearing the same name, was formed by the stockholders of the old one, or a part of them, and all the property and effects of the old corporation were transferred to, and received by the new company, which continued the business, without any apparent change of interest, until it was dissolved by a sale of all its property upon execution; Held that the new company was intended by all parties as a virtual continuation of the old corporation, with all its responsibilities and obligations; and that such new company, and the personal liability of the persons who were its stockholders at the time of its dissolution, constituted the primary fund for the payment of a judgment recovered against such company, for a debt due by the old one; which fund must be exhausted before the judgment creditor could resort to the personal liability of the stockholders of the old company ; the new company being considered the principal debtor and the old company the surety.</p> <p>Where complainants alleged in their bill that a defendant was a stockholder of a company, at the time of its dissolution, and the defendant, in his answer, denied that he was the owner of any of the stock of the company, at that time, and alleged positively that previous to such dissolution, he had assigned all his stock to another person; Held that such denial and averment were responsive to the bill, and were conclusive as to the fact, until overthrown by the testimony of more than one witness.</p>

In Equity. Exceptions to the report of a referee as to the distribution of the surplus moneys arising on the sale of mortgaged premises. O’Neil gave a mortgage dated February 7, 1845, and recorded February 11, 1845, and which was foreclosed by the plaintiff. The decree of foreclosure was made April 26,1848, for $311.

<p>The modern doctrine is to consider corporations as having such powers as are specifically granted by the act of incorporation, or are necessary for the purpose of carrying into effect the powers expressly granted, and as not having any other. Per Hand, J.</p> <p>But it seems that a corporation need not set forth its title, in the pleadings, but may show on the trial, its corporate existence, and that it had power to make the contract which it seeks to enforce or make available. Accordingly, Held, on demurrer to a bill filed by a corporation as the assignee of a demand, for the purpose of enforcing the same, that it was sufficient for the complainants to allege generally, in their bill, that they were duly incorporated, and had power to purchase and- hold the demand.</p>

<p>A parol promise, made without consideration, to indemnify and save the promisee harmless from all damages by reason of his becoming bail for a third person, is void as being within the statute of frauds.</p> <p>To render the promise of a third person to answer for the default of another valid, under the statute of frauds, there must be a contract, upon good consideration, such as would be binding at common law, and it must be evidenced by a writing.</p> <p>To support an action upon such an undertaking, on the ground of there being a new and original consideration for it, the new and original consideration must be such as to shift" the actual indebtedness to the new promiser; "so that, as between him and the original debtor, he is bound to pay the debt as his own; the latter standing in the relation of surety to him. Per Sill, J.</p> <p>The cases upon this subject examined and commented upon. Per Sill, J.</p> <p>Perky v. Spring, (12 Mass. Rep. 297,) doubted; and Chapimv. Merrill, (4 Wend. 557,) overruled.</p>

Ejectment for an undivided half of certain premises in the town of Springport in the county of Cayuga. On the trial before Whiting, Cir.

This was an action of debt. The declaration contained two counts; the first count being on a judgment in the supreme court in favor of the plaintiff for $540,09, in an action of assumpsit, rendered in the term of July, 1845, and the second count being for $459,91, for interest. The plea was nil debet. The cause was tried at the Seneca circuit, November 13,1846, before Whiting, Cir.

<p>Demurrer to an indictment. The indictment was found at the oyer and terminer for Monroe county, in October, 1847. It stated substantially that the defendant, on the first of August, 1847, at Rochester, with felonious intent to cheat and defraud one Royal Barlow, feloniously, unlawfully, knowingly and designedly, falsely pretended and represented to said Barlow that he the defendant was a constable, and had a warrant issued by Butler Bardwell, Esq., a justice of the peace of said county, against said Barlow, for a rape, and produced a forged and false instrument purporting to be such warrant; and represented and pretended to said Barlow that said pretended warrant had been issued by said Bardwell, and then and there proposed if said Barlow would pay him $25, and also offered to settle the same, if said Barlow would deliver him a certain silver watch, the property of said Barlow. That Barlow believing the said false pretences and representations, and being deceived thereby, was induced by reason thereof to deliver and did deliver to said Stetson “ one silver watch of the proper moneys, valuable things, goods and chattels, personal property and effects of the said Royal Barlow which Stetson received and obtained by means of color of the pretences and false tokens and representations, aforesaid, and with intent, &c. to cheat and defraud the said Royal Barlow of the said watch. Whereas said Stetson was not a constable, or any other officer, and had no warrant against said Barlow, nor had any warrant been issued by said Bardwell against said Barlow, and the instrument produced and represented to be a warrant was false and forged, which Stetson well knew ; and that the said pretences and representations were in all respects false and untrue, which was known by said Stetson. The defendant demurred to the indictment, and assigned for causes—(1.) That Barlow, in delivering the watch to Stetson, &c. was guilty of a want of common prudence and caution, wholly inexcusable by the said false pretences and tokens. (2.) That said Barlow, in delivering the watch under the circumstances, was guilty of a want of common honesty. (3.) That the only legitimate effect of the pretences would be to make Barlow prepare to defend, to go to the magistrate where he would have been undeceived. The turning out of the watch was not the legitimate effect of the pretences. ■ (4.) The watch was not obtained in the course of trade, commerce, or credit, nor in any of the lawful pursuits of business, but in the settling of a felony, &c. (5.) That no particular value of the watch was alleged. The people joined in demurrer. The case came before this court upon a writ of certiorari to the oyer and terminer, to which was returned a copy of the indictment, demurrer and joinder.</p>

In Eouity. The bill of complaint in this cause was filed in the late court of chancery, before the vice chancellor of the fourth circuit. The defendants answered, and proofs were taken. It appeared that on the 19th of March, 1839, James McKnight purchased certain real estate jn Washington county, from George Lasher, and executed to him a mortgage upon it for $1200 to secure the payment of a part of the purchase money.

This is the same case which gave rise to the writ of habeas corpus, and the other proceedings, reported ante, page 31. The facts are sufficiently detailed in the opinion of the court. The cause was submitted without argument, by

<p>Motion to set aside a report of referees. The action was assumpsit. The defendant pleaded the general issue, and the statute of limitations. The plaintiffs replied generally. On the trial before the referees, the plaintiffs produced in evidence a promissory note, dated Kingston, March 20, 1837, by which the defendant, ninety days after date, promised to pay the plaintiffs or order, ninety-three pounds five shillings Halifax currency, for value received, &c. The execution of the note was proved. And the plaintiff called Albert L. Smith as a witness, who testified that he knew that the defendant received goods of the plaintiffs in 1836 and 1837; that at York, Livingston county, in November, 1840, he had a conversation with the defendant, in regard to the claim of the plaintiffs; and that he said “ he owed the plaintiffs about $700, and intended to arrange his business and pay them, that fall or winter, as soon as he could.” He did not say how he would pay the plaintiffs’ debt. On his cross-examination, the witness stated that he resided in Canada; that he had been connected jn business with the defendant there; and that they dissolved in January, 1839. Witness told defendant that, if he intended to carry on business in his own name, he must settle that debt at Kingston. He replied “ he would, and intended to, that fall or winter, or as soon as he could arrange his business so to do.” When the defendant left Canada in 1839, he left with witness all his books and accounts, to collect. While the witness had them, one of the plaintiffs called on him and wanted him to pay the note offered in evidence. Witness replied that he could not do it, as he had orders to pay certain other matters first. Witness informed the plaintiffs, within the last two years, what he could testify to, as to the plaintiffs’ claim against the defendant. No objection was made 1 to the admissibility of the evidence in relation to the acknow- 1 ledgment of the defendant, under the pleadings, nor to its sufficiency to establish the cause of action of the plaintiffs. The referees reported in favor of the plaintiffs for the sum of $615,45. The suit was commenced in July, 1846.</p>

<p>The grantee in fee in either a quit-claim deed, or in a deed containing covenants of warranty, is not estopped from denying that the grantor had any title in the premises conveyed, either at, or previous to the date of the deed.</p> <p>Such grantee holds adversely to his grantor, and he may controvert such grantor’s title, and also fortify his own title acquired from such grantor, by the purchase of any other title which will protect him in the quiet enjoyment of the premises.</p> <p>An estoppel must be reciprocal.</p> <p>A stranger can neither take advantage of, nor be bound by, the estoppel.</p>

<p>A woman who has obtained a decree for a divorce a vinculo mai/rimonii, for the adultery of her husband, is not, after his death, entitled to dower in his real estate. Willard, J. dissented.</p>

In Equity. This was a bill filed in the late court of chancery, by the wife against her husband, for a separation a mensa et thoro on the ground of cruel treatment. The defendant answered, denying the allegations in the bill, and a replication was filed, and proofs were taken. The parties resided at Shan-

<p>A wife may act as the agent of her htisband; and if he permits her so to act in any particular business, he adopts, and is bound by, her acts and admissions in reference to such business, and they may be given in evidence agai&st him.</p>

This was an action on the case for enticing away and harboring the plaintiff’s wife. It was tried at the Greene circuit in May, 1847, before Parker, circuit judge.

<p>In cases of partition a court of equity does not act merely in a ministerial character and in obedience to the call of the parties who have a right to the partition, but, acting upon its general jurisdiction as a court of equity, it administers its relief ex ceguo et bono according io its own notions of equity between the parties. The court is not restricted to a partition of all the lands, or a sale of the whole. But when a part of the land may, without prejudice to the interests of any of the parties, be allotted to one of the parties, but the share of the other parties in the residue of the land cannot be allotted to them without prejudice to their interests, it is an appropriate exercise of the power of the court to allot to such of the parties as can have their lands set off to them without prejudice either to themselves or to their co-tenants, their respective shares, and to direct a sale of the residue of the land which cannot be so divided.</p>

In Equity. William Adams of West Camp, in the county of Ulster, having been engaged in mercantile business, and having become insolvent, on the second day of July, 1840, made an assignment of all his property and effects to his brother Thomas Adams, in trust for the benefit of his creditors.

Demurrer, by the defendants, to the replication of the plaintiffs. The opinion of the court contains all the facts necessary to an understanding of the questions decided.

<p>Error to the Herkimer county court. The facts are stated in the opinion of the court.</p>

Demurrer to replication. The action was, debt on an award. The declaration set forth the execution of bonds of arbitration by the plaintiff and defendant respectively, dated December 28, 1842, conditioned, among other things, that the parties respectively should submit to the decision of Orla H. Whitney, Mathew McNair, William Dalloway and John Grant, jun. or either three of them who should act, named, selected and chosen arbitrators by the parties, between whom a…

The action was covenant, brought by the plaintiffs to recover rent due upon a lease. The suit was commenced before a justice of the peace of Oneida county, who rendered a judgment for the plaintiffs; which judgment was affirmed by the court of common pleas, on appeal. The questions arising upon the trial, and the facts in the case, are stated in the opinion of the court.

<p>In an action by a lessee, against the lessor, to recover damages for a .refusal to give possession of the demised premises, ithe plaintiff may recover the damages arising from expenses incurred in preparing to remove to and occupy the premises, together with the difference between the real value of the rent and the sum agreed to be paid.</p> <p>But he is not entitled to recover for the profits which he might have made in his business, had he occupied the premises. Nor can he prove the amount of damages sustained, by the opinions of witnesses.</p> <p>The opinions of witnesses, as to damage or loss, are not competent evidence, even in cases whore the damages claimed are a proper subject of recovery.</p> <p>Whether a parol lease of .premises for one year, the term to commence in fuhiro, is valid, under the statute of frauds Í Qucere.</p>

<p>Papers executed at the same time, and relating to the same subject matter, should be construed together. Upon this principle a receipt, for a payment upon a contract, may be contradicted by other papers executed simultaneously with the contract and receipt, and forming a part of the same transaction.</p> <p>Evidence not within any issue framed by the parties, must he disregarded on the hearing, though it may have been received without objection. And a decree founded on evidence of that character will be reversed.</p> <p>The rule is explicit and absolute, that a party mpst recover in chancery according to the case made in his bill, or not at all—secwndwm allegata, as well as probata. Where a party, in pleading, has alleged a fact which is not denied by his adversary, such fact must be taken as true, and cannot be contradicted in that suit. Nor does it alter the case that such fact is alleged in the charging and not in the stating part of a bill of complaint.</p>

<p>There is a well defined distinction between the liabilities of principal and agent, respectively, upon contracts under seal and upon those not under seal. Per Allen, J.</p> <p>In order to make the covenants in a sealed agreement, executed by an agent, the covenants of the principal, the agreement must be executed in his name, and his seal must be affixed to it, and it must purport to be his deed, and not the deed of the agent. In simple contracts, the intent of the parties has a controlling influence in determining the liability of the parties upon them. Per Allen, J.</p> <p>In respect to the liability of the principal, on written contracts not under seal, if the name of the principal, and a relation of agency, be stated in the writing, and the agent is really authorized, the principal alone is bound, unless the language expresses a clear intention to bind the agent personally.</p> <p>The rule as to verbal contracts is similar to that which prevails as to written contracts not under seal. When the relation of principal and agent exists, in regard to a contract, and is known to the other party to exist, and the principal is disclosed at the time, as such, the contract is the contract of the principal; and the agent is not bound unless credit was given to him, expressly and exclusively, and it was clearly his intention to assume a. personal responsibility.</p> <p>Where a written contract, for the building of a church edifice, was entered into by the defendants as the “ committee” of a religious society, on its behalf, and was subscribed by them as such, the intent being clearly to bind the corporation as principal and not the defendants as agents, and the name of the principal and the fact of the defendants’ agency, as well as the want of individual interest in the defendants in the subject matter of the contract, all appeared on the face of such contract; Held that those facts might be pleaded in bar of an action upon such contract, against the members of the committee personally.</p> <p>Scrawls, at the end of signatures to a copy of an agreement set forth in a pleading, cannot supply the place of an averment that the agreement was sealed.</p>

In Equity. This was a bill in equity to set aside a deed of trust from the next of kin of Susan Durand to the defendant Thompson. On the 25th of January, 1834, Mrs. Durand, being the owner of certain personal property, made a will disposing of all her estate among her three daughters, Mary, wife of Joseph Dupre, Cecilia, wife of G. F. R Johnston, and Louisa Durand.

<p>It is improper to file a supplemental bill where there is no alteration in the interests of the parties, and no particular circumstances requiring further discovery, and the relief is not varied by the ■ subsequent matter, but the plaintiff may have all the relief to which he is entitled, under the original bill.</p> <p>But a supplemental bill may be filed where facts have occurred subsequent to the filing of the original bill, which vary the relief to which the plaintiff was entitled under the original bill.</p> <p>Thus where a bill is filed by legatees, for the purpose of collecting legacies charged upon real estate in the hands of devisees, under which bill the plaintiffs would be entitled to a decree for the sale of the real estate for the payment of their legacies, and an agreement is subsequently made between the legatees and devisees which would, in addition to that relief, warrant a decree against the defendants personally, a supplemental bill is proper.</p>

In Eq.tjity. Motion to set aside decree and subsequent proceedings. Beach and Shaw, the parties in the first suit, became partners on the 12th day of April, 1843, in carrying freight on the Erie canal, and in towing boats. Beach filed his bill in chancery, before the vice chancellor of the the 8th circuit, on the 13th of September, 1845, to wind up the concerns of the partnership. Shaw put in his answer on the 3d September, 1846.

In Equity. The bill in this cause was filed by the wife against her husband, to restrain him from receiving, and appropriating to his own use, a legacy bequeathed to her after she had obtained a decree against him for a separation a mensa et thoro. The cause was heard upon pleadings and proofs taken in open court. The facts are detailed in the opinion of the court.

In Equity. This was an appeal by the defendants from a decree of the Hon. Daniel Mosely, late vice chancellor of the seventh circuit. The facts are sufficiently set forth in the opinion of the court.

The defendant was indicted for vending and selling a certain ticket purporting to be in the Grand Consolidated Lottery of Delaware and Georgia; and having been convicted upon the trial, he brought a writ of error, and moved for a new trial. The facts sufficiently appear from the opinion of the court.

Keeler brought an action of trespass against Delavan, before a justice of the peace of Onondaga county, and declared against the defendant for stoning, beating, and otherwise abusing, chasing, maiming and maliciously wronging the plaintiff’s cow and hogs at different times within the last two years, since the spring of 1845, in the town of Lafayette, to his damage $50.

Tiffany brought an action of trespass on the case against Gilbert, before a justice of the peace residing in the village of Syracuse. On the return day of the summons the defendant did not appear, but the plaintiff appeared, and declared against the defendant upon a warranty on the exchange of a horse for a cow; alleging that the defendant warranted the horse to be sound and true, but averring that he was not sound and true.

Motion by the defendants to set aside a report of referees and for á new trial. The action was assumpsit.

In Equity. This was an appeal, by the defendants, from a decree of the late vice chancellor of the fifth circuit. Held: on exceptions to the master’s report, that all such paper was to be paid ; and that the creditors who claimed under the assignment could not object to the payment of other creditors under the assignment, although the demands of the latter were usurious.

The action was debt on a judgment in the supreme court. The defendants pleaded nil debet, and gave notice of special matter of defence, viz. that the plaintiff issued an execution on the judgment to Abner Baker, jun. sheriff, in November, 1837, who levied upon the defendant’s goods to an amount more than enough to satisfy the execution; that the defendant Herter, who was the person who ought to pay (Dillenbacic being the surety on the note on which the judgment was…

<p>In order to maintain an action to recover back money paid under a special contract, the plaintiff is bound to show the contract at an end, either by a full performance thereof by both parties, or by some act of the defendant inconsistent with it, and disabling him from complying with its terms; or by a rescission, by the mutual consent of both parties.</p> <p>If a special contract is ended, or the performance thereof has been prevented by the acts of one of the parties, such party cannot sustain an action against the other party, either upon the contract, or for money advanced by him in part performance of it.</p> <p>And if one of the parties has fully performed, or offered to perform, the contract, on his part, he cannot maintain an action against the other party, to recover back moneys paid in pursuance of it, without showing a failure or inability to perform, on the part of the defendant.</p> <p>A party may lose his right to enforce the specific performance of a contract, by delay in the demand, and an apparent abandonment of his claim; particularly if the situation of the parties has become changed in the meantime, and they may reasonably be presumed to have acted upon the faith of the abandonment of the contract. But a plaintiff will not be allowed to recover, in an action for money had and received, for money advanced upon a contract, as upon a rescission of it, presumed from mere delay; without showing some violation of the contract by the party sought to be charged. Per Allen, J.</p>

This was an appeal from a judgment of the Oneida county court. Bridge sued Willard before a justice of the peace, and declared verbally in assumpsit, and on all the common counts.

Motion, by the defendant, to set aside the report of a referee. The action was assumpsit, brought to recover for goods alleged to have been sold and delivered by the plaintiff to the defendant. The declaration contained two counts for goods, wares and merchandise sold and delivered; the one claiming a specific price, and the other claiming what the goods were reasonably worth; and also the common money counts. The plea was the gen eral issue, with the usual notice of set-off.

<p>In Equity. On the 24th of November, 1821, John Moore made and published in due form of law his last will and testament, wherein he devised to his two grandchildren, the plaintiff and defendant, the house and lot then occupied by him in South Pearl-street in the city of Albany, in the following terms: “ the yearly income and profits thereof for twenty years after my decease, subject to the payment to my executors of twenty-five dollars annually for the support of my daughter Maria Dunn, and so that they may not sell or mortgage the same or let for more than one year, and after the said twenty years are expired, to them, their heirs and assigns forever. And should either decease without lawful issue, his part shall go to the survivors—and should both die without lawful issue, then the said house and premises to be lawfully divided among my heirs.” The testator died in August, 1834, and his daughter Maria Dunn died about a week afterwards. The will was proved and recorded as a will of real estate on the 24th of October, 1834. The plaintiff, being a young man of intemperate and dissolute habits, about nine months before the death of his grandfather, went to sea, and returned about the 1st of December, 1834. On the 4th day of that month he released to the defendant all his interest in the premises devised to the parties by the will of their grandfather. The consideration expressed in the deed was $100, of which $70 was paid in cash, and for the remaining $30 the defendant gave his note at 60 days. The plaintiff being about to return to sea, it was agreed that the note should be deposited with Mr. Davis, the lawyer who drew the deed, to be delivered up to the defendant in case the plaintiff should not return. Shortly after executing the deed the plaintiff again went to sea, and did not return until the fall of 1841. The premises, having become chargeable with a city assessment, were sold by the corporation of the city of Albany, on the 7th of November, 1840, for 1000 years. The defendant became the purchaser, and paid, upon such sale, $82,32.</p> <p>On the 15th of January, 1842, the plaintiff filed his bill, charging that the deed to the defendant was executed under a misunderstanding of his rights, and without adequate consideration ; that he was otherwise grossly deceived and imposed upon in relation thereto, and that he was prevailed upon to execute the deed by some unfair means and pretences used in that behalf by the defendant. The bill also charged that the corporation sale was “ procured, suffered or permitted,” for the express purpose of getting title to the premises by a purchase under such sale in the absence of the plaintiff, and to defraud him of his interest in the premises, and claimed that the purchase should be held to enure to the joint benefit of the plaintiff and defendant. The bill prayed that the deed might be declared void, and for an account of the rents, issues and profits of the premises, since they bad been in the possession of the defendant.</p> <p>The defendant put in his answer upon oath, on the 31st of March, 1842, in which he stated that the plaintiff shortly after his return in 1834, applied to him to purchase his interest in the premises, and offered to sell it for $100, stating that he wanted the money to purchase nautical instruments and books to qualify himself to become a mate of a vessel; that he could not get a living in Albany, and probably never should return, and that the premises were of little or no value to him ; that the defendant told him he did not think he had power to sell, or if he had, that he did not wish to purchase, but proposed to consult counsel on the subject, and thereupon the parties went together to the office of Mr. Davis, taking with them a copy of the will, and after a full consultation with Davis and after the plaintiff’s rights had been fully made known to him by Davis and by the defendant, Davis was employed by the defendant, in the presence of the plaintiff, to prepare the deed; that the deed was executed in the presence of Davis, who became a subscribing witness to the execution thereof.</p> <p>The cause was heard upon pleadings and proofs before the late Vice-Chancellor Cushman, who made a decree, on the 5th day of October, 1842, declaring the deed from the plaintiff to the defendant void, and directing a reconveyance by the defendant and a reference to take and state an account of the rents and profits of the premises, and the amount expended by the defendant for repairs, or otherwise, on account of the premises. All other questions were reserved until the coming in of the report. From this decree the defendant appealed. The facts in the case, not already stated, so far as they are material, will be found in the opinion of the court.</p>

<p>In Equity. On the 25th day of April. 1833, an association was formed between the individuals who were defendants in this suit and several other persons, for the purpose of purchasing a site, erecting a furnace, and conducting the business of raising ore, making iron, flouring wheat and other grain, sawing timber, <fcc. It was agreed that the capital stock of the association should be $20,000. Five of the associates were appointed trustees to take the title of the real estate to be purchased. An agent was appointed, to transact the business of the association, at a yearly salary of $1000. A committee of the associates was also appointed, to obtain an act of incorporation. Real estate to the amount of about $20,000 was purchased and conveyed to the trustees pursuant to the provisions of the articles of association. On the 24th of March, 1834, an act was passed by the legislature, incorporating “ The Fishkill Iron Company,” with a capital of $100,000. Under the provisions of the act, books of subscription were opened on the 17th of April, 1834, when the whole amount of stock was subscribed by the stockholders in the association which had been formed in April, 1833, each stockholder subscribing for five times the amount of the stock held by him in the association. At a meeting of the directors named in the act of incorporation, held on the same day, it was resolved, “ that the Fishkill Iron Company will purchase and take a conveyance of and from James Emott, James Hooker, Solomon Y. Frost, Ira Spooner and Samuel B. Halsey, trustees of a private company and association formed by Nathaniel P. Tallmadge, James Emott, James Hooker, Samuel B. Halsey, Rufus Fuller, Nathaniel P. Perry, Ira Spooner, Uriah Gregory & Co., Solomon Y. Frost, Aaron Frost, Walter Cunningham, Tunis Brinckerhoff, Andrew Stockholm, and Richard DeWitt, all of the property now contracted for, held and owned by said trustees of said private, company and individuals as such trustees, at and for the price and sum of one hundred thousand dollars, that being the price and sum agreed upon by and between said trustees and the said above named private company and individuals owning the same, of the one part, and the said-Fishkill Iron Company of the other part, as and for the consideration and purchase money for the same upon said sale and conveyance thereof from said private individuals to said Fishkill Iron Company. The said Fishkill Iron Company assuming and paying all the debts, obligations, liabilities and responsibilities of said trustees heretofore entered into or incurred by them for said private company and individuals as aforesaidIn pursuance of this resolution, all the property of the association was conveyed by the trustees to the corporation. The business of the corporation was continued until June, 1840, when, having become insolvent, and judgments having been recovered against it, to a large amount, its business was suspended, and shortly afterwards its property was sold upon execution.</p> <p>In July, 1842, the bill in this cause was filed by the plaintiffs, as creditors of the Fishkill Iron Company, to obtain satisfaction of seven judgments which had been recovered by them severally against the corporation, in 1840 and 1841, amounting in the aggregate to $2962,20, upon which judgments executions had been issued and returned unsatisfied. • The debts upon which the judgments had been recovered were contracted in 1839 and 1840. Besides the corporation, five of the directors, James Emott, Aaron Frost, Solomon Y. Frost, Isaac R. Adriance and Tunis Brinckerhoff, were made defendants.</p> <p>The bill stated that, although scrip for the whole amount of the stock was issued to the stockholders, in fact not more than $20,000 of the capital was ever paid by the stockholders; that when the plaintiffs’ debts were contracted, and when they recovered their judgments respectively, the debts and liabilities of the corporation exceeded three times the amount of its capital stock paid in ; that the individuals who are made defendants were directors under whose administration the excess of indebtedness happened, and it was charged that thereby such directors became liable for the payment of the plaintiffs’ debts. The bill prayed that the defendants, as directors, might be decreed to pay the amount of the plaintiffs’ judgments, with interest and costs, and for general relief.</p> <p>The answer of the defendant Aaron Frost, stated that he was a subscriber for stock to the amount of $5000—that he was chosen a director in July, 1837, and continued to be a director until the company suspended business. In March, 1840, he became endorser upon the notes of the company to the Dutchess County Bank for $23,500, for the payment of which he still</p> <p>The bill was taken as confessed by the Fishkill Iron Company. Each of the other defendants answered separately. The answer of James Emott stated that he was a stockholder to the amount of $10,000—that in the spring of 1835, he advanced for the use of the company $15,000—-to secure which he received from the company a bond and mortgage, on the 13th of July, 1837. On the 14th of April, 1841, the mortgaged premises were sold under a decree of foreclosure, subject to pri- or incumbrances, and after applying the proceeds of the sale, there remained a deficiency of $12,942,67. The answer further stated, that having, with other director's and stockholders, been sued for a debt due from the company to one Storm, Emott, in June, 1841, paid towards that debt $120—and that in October or November, 1841, he paid on account of a debt which one Sleight held against the unincorporated association, and which had been assumed by the company, about $1200; and had incurred costs in and about the suits brought against him for these debts to the amount of about $200. remains liable. On the 24th of December, 1839, he transferred $2500 of his stock to Charles C. Alger, and still holds the remaining $2500.</p> <p>The answer of the defendant Solomon V. Frost, stated that he was a subscriber for stock to the amount of $5000. On the 10th day of January, 1840, he, with other persons, endorsed the note of the company to the Dutchess County Bank for $7000, and has since paid one third of that note, amounting to $2333,-33. That he had also paid, on account of the debt to Sleight, before mentioned, $376,88—that in 1836, he sold $900 of bis stock, and still holds the residue.</p> <p>The answer of the defendant Isaac B. Ad nance, stated that in 1837 or 1838, he purchased of John W. Brinckerhoff $2500 of the stock of the company, for which he paid him $1000— that in January, 1838, the company purchased certain lands of one Parks, on account of which three notes for $2000 each were given by the company—these notes were also signed by this defendant and others—that having, with Tunis Brinckerhoff, been sued upon two of these notes, they paid the amount-due, being $6853, besides costs to the amount of $139, each paying one half—that be also paid to one Storm, a creditor of the company, in 1840, about $112—that, being an endorser upon the $7000 note to the Dutchess County Bank before mentioned, he paid one third of that note, amounting to $2333,33— that, being a farmer, he had furnished produce for the use of the company, for which, on the 21st of February, 1839, the company gave him their note for $800, which he still holds—that on the 10th of April, 1839, he sold the company a yoke of oxen and received their note for $120, which he also holds.</p> <p>The answer of the defendant Tunis Brinckerhoff, stated that he was a subscriber for stock to the amount of $2500,' which he still holds; that he was an endorser upon the $7000 note to the Dutchess County Bank, one third of which he had paid; that he also, having signed the note to Parks, had paid one half the amount of those notes, together with the costs.</p> <p>The cause was heard upon pleadings and proofs, before the Hon. Charles H. Buggies, then vice chancellor of the second circuit, who decided that not more than $20,000 of the capital stock of the company had been paid in, and that if at any time while the debts to the plaintiffs, or any of them, remained unpaid, the debts which the company owed exceeded $60,000, the defendants, being directors at the time, were in their individual and private capacities, jointly and severally liable to the plaintiffs for the payment of these debts to the amount of such excess; but that they were only so liable to those plaintiffs whose debts were contracted or remained unpaid while such excess existed; that in ascertaining the amount of such excess the debts due from the corporation to the defendants and other directors, were to be taken into the account as well as debts due to other persons and corporations. A decree was accordingly entered, on the fifth day of April, 1845, declaring the Fishkill Iron Company dissolved, and declaring the liability of the defendants upon the principles above stated. A reference was directed, to ascertain the amount of the excess of the indebtedness of the corporation ; and the master, in taking the account of such indebtedness, was directed to exclude all debts secured by mortgage upon the lands of the company, and for which there was no remedy against the company except by proceeding to enforce the lien of the mortgage. All other questions were reserved until the coming in of the report. From this decree, except so much of it as declared the corporation dissolved, all the defendants except the Fishkill Iron Company, appealed.</p>

Previous to the 12th day of January, 1846, the plaintiff, as devisee and executor of the last will and testament of Judith Dubois deceased, made' application to the surrogate of Ulster, to prove the will. The application having.been opposed by the .defendant, a brother of the testatrix, the surrogate refused to admit the will to probate.

<p>This was an action of assumpsit, on two promissory notes which became due July 2d, 1838. The defendant pleaded first the general issue, and secondly a discharge under the U. Stales bankrupt act of 1841, obtained June 10, 1842. In the second plea it was alleged that “ the defendant being a resident of the town of Watervliet, county of Albany and northern district of the state of New-Yorb, and being a bankrupt, within the meaning of, and entitled to the benefit of the act of congress entitled “ An act to establish a uniform system of bankruptcy,” &c. &c. “ did duly present, «fee. a petition,” &c. The plaintiffs put in four replications to this plea. In the first replication the plaintiffs alleged “ that the said defendant in his said proceedings in the said plea stated under the said act of congress,” &c. &c. “ was guilty of fraud and wilful concealment of his property, against the express provisions of the said act, and in direct violation thereof, in fraudulently and wilfully omitting to set forth and include in the inventory of his property, rights and credits in the said plea mentioned, the following articles of real and personal property, which said articles of real and personal property were the property of the said defendant and in which he had a right and interest at the time of presenting his said petition to be declared a bankrupt under the said act, to wit, one gold watch of the value of one hundred and fifty dollars, one horse of the value of one hundred dollars, one one-horse wagon of the value of fifty dollars, one set of single harness of the value of twenty dollars,” &c. (enumerating many other articles.) The second replication alleged that the defendant was guilty of a “fraud against the provisions of the act, in having, after the passage of the act, and in contemplation of bankruptcy, fraudulently conveyed and transferred to one Jonas Simmons, <fcc. &c. without any consideration, the following real and personal property, to wit, one hundred sets of tools, implements and apparatus used in the manufacture of axes, twenty thousand pounds of steel, fifty tons of coal,” &c. (enumerating many other articles.) The third replication was like the second, except that the transfer was alleged to have been made to Jonas Simmons and one Davis. The fourth replication alleged, in similar terms, fraud in transferring, after the passage of the act and in contemplation of bankruptcy, a horse, wagón, and harness, to Miles White. There were demurrers to the replications, and joinders in demurrer. Tire defendant assigned as causes of demurrer, that the plaintiffs had alleged “ fraud and wilful concealment,” when neither would make, under the act of congress, a sufficient replication; that by setting forth the omission of several distinct articles of real and personal property the plaintiff sought to include several distinct matters, any one of which, if true, would be a sufficient answer to the plea ; that the replication set up several distinct acts of fraud ; that by alleging the conveyance of several distinct articles of property, several distinct matters were sought to be put in issue, and that the plaintiffs had not alleged that the said articles so conveyed belonged to the defendant, <fcc. &c.</p>

<p>At common law, a husband was required to join with his wife in executing a conveyance of her real estate. Whether such is the law of this state, where the conveyance has been duly acknowledged by her as a feme covert ? Qucere. But however that may be, the rule is not applicable in equity to a conveyance of her separate property.</p> <p>To give validity to a mortgage executed by a married woman upon her separate estate and acknowledged by her as a feme covert, it is not necessary the husband should join in executing the same.</p> <p>With regard to her separate property, a feme covert is to be regarded, in equity, as a feme sole.</p> <p>A separate estate exists in the wife, where the husband has no interest in her property, and no control over it, and where it is not liable to the payment of his debts.</p> <p>A separate estate may in some cases exist in a feme covert, though it has not been conveyed to a trustee, for her use.</p> <p>In all cases where the wife has a separate estate, no matter how it was created, it may be made liable to the payment of her note or bond, given on the credit of it; and she has, in equity, the same power over it, and may sell it, or bind it by mortgage, as if she were a feme sole.</p>

In Eq.uity. This was an appeal from a decree of the surrogate of the county of Albany. The appellant had been the general guardian of Martha N. Wiswall, (now Mrs. Van Antwerp,) and was cited to render an account of his guardianship before the surrogate of Albany, on the 10th of April, 1841. It appeared that the guardian had received a legacy belonging to his ward, amounting to $567,38.

<p>Previous to the adoption of the revised statutes, an executory devise limited upon an indefinite failure of issue was void, because it might not vest within the compass of twenty-one years and nine months after a life or lives in being.</p> <p>Where an executory devise was made dependant on the first taker’s “ dying without lawful issue,” such words, unexplained, had a fixed legal signification, and imported an indefinite failure of issue, and not a failure of issue living at the death of the first taker.</p> <p>A different interpretation will, however, be given to such and similar words where there are other provisions of the will showing that the testator intended a failure of issue living at the death of the first taker.</p> <p>Where an executory devise, limited upon the first taker’s dying without lawful issue was made subject to the payment, by the executory devisee, of legacies to three persons then in being, when they should severally become of age, it was held that the testator did not contemplate an indefinite failure of issue, but that he must have intended the estate to vest on the death of the first taker.</p> <p>An executory devise is void where it is repugnant to the absolute ownership and power of disposal given to the first taker. Otherwise when the jus disponendi is conditional.</p> <p>Where the testator devised land to T., his heirs and assigns forever, provided the said T. should not sell the same within fifteen years, unless to one of his children ; and in case said T. died without lawful issue, the estate to go to A., his heirs and assigns forever, it was held that the devise to T. was subject to two conditions; and that if he sold to one of his brothers within the fifteen years, or to any other person after that time, the grantee in either case, would take the land subject to the other contingency, viz. the death of T. without lawful issue.</p> <p>The mere taking of a quit-claim deed does not estop the grantee from questioning the .title of his grantor. The rule is otherwise, as between vendor and vendee before conveyance, and between landlord and tenant. In both these cases the possession must first be surrendered before the title can be questioned.</p> <p>There is no estoppel except where the occupant is under an obligation, express or implied, to restore the possession at some time or in some event.</p> <p>But where by an indenture freely executed between the parties, T. covenanted that if a certain condition was not performed within a stipulated time, A. might enter upon, and hold, and enjoy the premises, he was held to be estopped from questioning A.’s right.</p> <p>And where a party is estopped by deed, all persons claiming under or through him, are equally bound by the estoppel.</p>

<p>Where, by a will executed previous to the revised statutes, the testator devised a farm to his son C., and directed that if C. should “ die without heirs lawfully begotten,” the same should go to the testator’s sons, John, Jacob and George, in fee; Held that the executory devise was limited on an indefinite failure of issue, and was therefore void.</p> <p>An indefinite failure of issue occurs when the issue or descendants of the first taker become extinct, without reference to any particular time or event. Per Parker, J.</p> <p>An executory devise is void when it is limited upon a contingency that will not necessarily occur within twenty-one years and nine months after a life or lives in being. It is not sufficient that the event may occur within the prescribed limit. It must, by its terms, happen within the time mentioned, or the executory devise will be inoperative.</p> <p>It is only where the devise over, after the termination of a particular estate, is of a life estate only, or where some charge is made upon it, payable to some person in being, or his executors, that it will be regarded as explaining the words of limitation to mean a definite failure of issue. Where the entire estate is given to the executory devisee a different rule prevails.</p> <p>It is a general rule that where lands are devised without words of perpetuity, and in consideration thereof the devisee is charged personally with the payment of money, he takes a fee by implication. And it seems this rule also prevails where, in addition to the personal charge, the legacy is made a lien upon the lands devised. Per Parker, J.</p> <p>It is only where there is no personal charge as a consideration for the devise, and the charge is excluisvely on the land, that the life estate is not enlarged into a fee. But a fee cannot be taken by implication, when the estate of the first taker is particularly described in the will to be otherwise.</p>

<p>The rule which imposes upon a party the obligation of producing evidence which will contradict, or explain, circumstantial evidence against him, requires him to do so only when he is pressed by circumstantial proof, and has it in his power to destroy its apparent force.</p> <p>Before the absence of evidence can affect a party accused, it must appear that there is evidence that would elucidate the matter in dispute, and that it is peculiarly within the knowledge of such party. Then if he is pressed by the force of circumstantial evidence and does not produce the evidence within his power, it may afford a strong presumption against him.</p> <p>A party accused is not bound, in order to avoid a presumption against him arising from circumstantial evidence, to produce as witnesses persons who may, by possibility, have knowledge on the subject. He need only produce those who are proved to have been so circumstanced as to justify the conclusion that they must have knowledge which, if divulged, would throw light' on the subject.</p>

In Equity. The defendant Monroe obtained a judgment against his co-defendant Remer, before a justice of the peace of the county of Yates, on the 12th of October, 1837, by confession, for $161,47, and on the same day filed a transcript in the office of the clerk of the county of Yates.

Seaman sued Benson, Dwight and Tillinghast, as trustees of school district No. 4 in Cincinnatus, in an action of trover, for the conversion of a cow. The defendants pleaded the general issue, and justified the taking of the cow by a collector of the school district as such collector. James Richards testified that he was collector of the school district; that he received four warrants from the trustees, and collected the warrants except a few names.

Error from the Delaware common pleas. Gibbs sued Nash before a justice, and declared specially that the defendant, for the consideration of one dollar and twenty-five cents to be paid per head, agreed to deliver him his flock of sheep, supposed to consist of 72, excepting 10 or 12 which the defendant reserved, within the week then current.

In Equity. The bill in this cause was originally filed in the court of chancery, to procure the cancellation of certain notes charged to have been given to John Cline, upon the illegal consideration that the complainant should not be prosecuted for an assault and battery with an intent to commit a rape upon the person of Patty Ann Cline, the daughter of the defendant John Cline, of which felony the complainant was accused.

This was an action of trespass for breaking a close claimed to be parcel of great lot R. H. 1. in Harper’s patent. The defence interposed was, that the premises in question were included within the true boundaries of a tract of two thousand acres of the same patent, known upon the maps as R. Watts’ lot. In 1839, Geo. Balis was in possession, as tenant in fee, of 145 acres of R. H. 1, and David Goodnough of an adjoining parcel in Watts,’ tract.

The defendant was indicted for the murder of Stephen C. Brush, and pleaded not guilty. He was tried at the Erie oyer and terminer, in October, 1848, before Justice Hoyt.

, now county judge of Cattaraugus county, certified by him to this court. Loomis sued Warring and others in trover, for converting fifteen of his sheep. Warring was a constable, and had an execution against the property of Loomis. There was a levy upon “thirteen sheep” endorsed upon the execution. On the day of sale the defendants below attended, and the plaintiff’s sheep, numbering 21 or 22, were present.

Motion by the defendant for a new trial, on a case. The action was debt on a bond, dated May 26, 1835, in a penalty of $10,000.

The action was trover, by Mrs. Hawkins against Brownell, to recover the value of certain marble. She claimed title under an instrument substantially as follows: “ This is to certify that I hereby agree to deliver to Mrs. Elizabeth Hawkins of, &c. nine pieces of marble now lying in a room occupied by the subscriber and owned by John T. Borden of said village, in security for a certain account against said subscriber by the said E. Hawkins of the place aforesaid.

<p>A party to a note is a competent witness to prove it to have heen void in its inception, 051 the ground of usury. Marvin, J. dissenting.</p> <p>Although a transaction is technically usurious, yet a party may, by his own conduct, have forfeited the privilege of setting up that defence. Per Sill, J. Principles upon which estoppels in pais are permitted.</p> <p>The possession of a promissory note, by the payee, and the apparent ownership thereof by him, together with his assertion, at the time he negotiates the same, that it is business paper, are not alone sufficient to create an estoppel, which will prevent him from insisting, when sued as endorser, that the note was void in its inception, on the ground of usury. Per Sill, J.</p> <p>If the holder of a note, represented by the endorser to he business paper, knows the character of the paper, or has good reason to suspect its character, or does not purchase in consequence of the representations of the payee, he cannot set them up as an estoppel. Per Sill, J., Marvin, J. dissenting.</p> <p>To make false representations by the payee, respecting the character of the paper transferred, available tp the holder, as an estoppel, so as to prevent the payee, when sued as endorser, from setting up the defence of usury, they must have been made for the purpose of inducing the holder to purchase the paper. Per Sill, J.</p> <p>He must have confided in, and in good faith acted upon, such representations. He must have been deceived by them, and have acted under that deception. Per Sill, J.</p>

<p>Words charging a person with having wilfully made a false declaration at a school district meeting, of his right to vote at such meeting, upon being challenged as unqualified, by a legal voter in such district, are actionable in themselves.</p> <p>Such words impute an indictable misdemeanor, involving moral turpitude.</p> <p>It seems that a charge against a person “ that he had committed peijury by swearing in his vote at a school district meeting,” imports a charge that he had wilfully made a false declaration at a school district meeting, of his right to vote at such meeting upon being challenged as unqualified; and that an action is maintainable for the speaking of such words, without .a statement in the declaration, of extrinsic facts to which the words- referred, and a colloquium concerning such facts.</p> <p>Where a charge for teacher’s wages in a school district, for the teaching of a son, was included in the rate bill made out against his father, and such charge was paid by the son; held, that such payment qualified the son to vote at the district meetings in such school district; he being a resident of the district and authorized to vote at town meetings of the town in which such district was situated.</p> <p>Where the plaintiff had, in Nov. 1844, made a contract to teach school in a school district for four months, for $10 a month; and where, after he became 21. years of age, he had worked for his father 4§ months without any agreement about wages, but had told his father about the time he commenced work, that he should expect payment for his labor; and the circuit judge charged the jury that in determining whether the plaintiff was, on the 23d day of January, 1845, a qualified voter in the school district in which he resided, on the ground of a property qualification, they might take into consideration the amount equitably due to him from his father, and the amount which would ultimately be due to him from the trustees of the school district, with whom he had made the contract to teach school, for that portion of his services rendered previous to the 23d of January, 1845; Held, that the charge was correct.</p> <p>No exception can be taken to the comments of a judge upon the evidence, in charging the jury, or to the mere expression of his opinion by way of advice to the jury as to such evidence, where he informs the jury, or gives them distinctly to understand, that they are to exercise their judgment upon such evidence, and to pass upon the same.</p> <p>To warrant an unqualified direction to the jury in favor of one party or the other, the evidence must either be undisputed, or the preponderance must be so decided, that a verdict against it would be set aside.</p> <p>Every person has a domicil; and he can only have one domicil at one and the same time.</p> <p>The existing domicil always continues, until another is acquired; and by the acquisition of another, the former domicil is relinquished.</p> <p>A domicil is the place where a person has fixed his habitation and has a permanent residence, without any present intention of removing therefrom.</p> <p>If a person leaves the place of his domicil, temporarily, or for a particular purpose, and does not take up a permanent residence elsewhere, he does not change his domicil.</p> <p>The words legal residence, and domicil, are convertible terms.</p> <p>Where a person whose place of legal residence and domicil was in S., entered into a contract to teach a school for four months, in M., and during the four months returned to S., and acted as secretary pro tom, of a school district meeting, and at the end of the four months left M. permanently; Held that he did not lose his residence and domicil in S.</p> <p>Where the entry of a judgment upon a verdict obtained by a party is delayed by a bill of exceptions of his adversary, and such party dies after the service of the bill of exceptions, and before the decision of the court thereon, the revised statutes (vol. 2, p. 387, §§ 2, 4,) have no application; and the court, upon common law principles, without regard to the lapse of time, will allow the judgment to be entered up as of a term previous to such party’s death.</p>

<p>This was an action of assumpsit, for money had and received, and on the money counts generally. The cause was tried at the Saratoga circuit, in August, 1848, before Justice Willard. On the trial the plaintiff proved, by Jerémiah Green, that Green sent to the defendant the plaintiff’s check on the Saratoga County Bank for $50, dated October 23,1844, about the time it bore date. The witness testified that the plaintiff gave him the check to be sent to the defendant, to form part of a bet, to be made by the defendant for the plaintiff and others with one R. Thompson, on the presidential election. The plaintiff directed that the defendant should return the check, if that bet was not made. The witness enclosed the plaintiff’s check, to the defendant; with directions to return the check, if the bet was not taken. Before the election the plaintiff called on the witness, and asked him if the defendant had returned his check. The witness replied that the defendant had not, but he presumed he would send it back. This evidence was objected to, but was admitted-. In December, 1844, after the election, the plaintiff called on the defendant. The defendant told -him that he had drawn the money on the check, and said that he had made bets with other persons, (not with R. Thompson,) and calculated to have the $50 received from the plaintiff applied on those bets, which had been lost; and that he had paid over the money to the winners. The defendant refused to return the $50 he had received from the plaintiff. The defendant moved for a nonsuit. The plaintiff insisted that the cause should be submitted to the jury. But the presiding justice, in accordance with the decision of the old supreme court, there being no disputed fact in the case, nonsuited the plaintiff. The plaintiff moved to set aside the nonsuit, and for a hew trial.</p>

This was an action of assumpsit, tried at the Warren county circuit, before the Hon. John Willard, circuit judge, in October, 1846. The suit was brought upon a joint and several promissory note for $300, dated March 27, 1837, payable on the 1st of September then next, to Jonathan Burr or order, and signed by Charles Beadlestone as principal, and by Sidney Berry as surety. Berry died on the 1st of April, 1839, and Jonathan Burr died on the 30th Dec. 1844.

Ressequie, the plaintiff in error, sued Brownson, the defendant in error, in assumpsit, before a justice of the peace. The summons was returnable on the 16th of March, 1847. On the return day of the summons the parties appeared, and the plaintiff declared for goods, &c. sold, &c. The defendant pleaded the general issue and gave notice of a set-off. The cause was adjourned to the 24th day of March, 1847, by agreement of the parties.

In Equity. This was a creditor’s bill founded on a judgment recovered against the defendant Reuben Skinner on the 5th of September, 1843, and on an execution issued on the same, returned unsatisfied. The bill was filed on the 10th of October, 1845. Dan Pond was made a defendant, on the ground of having, on the 15th of May, 1841, accepted an assignment from R. Skinner of all his personal property, in trust for certain of the creditors of Skinner.

Demurrer by the defendant to the plaintiff’s declaration in an action of nuisance, under 2 R. S. 332.

Motion on the part of the plaintiff to set aside the report of a referee. The action was trover, brought to recover the value of a quantity of hops. The defendants were warehousemen and forwarders, and received the hops from William King, of Malone, the owner, who had sent them to Ogdensburgh to be sold to the plaintiffs for cash ; and on the plaintiff’s failure to pay, shipped them to New-York by the order of King.

Motion by the defendants for a new trial. The action was ejectment, for lands lying in the county of St. Lawrence. . The cause was tried at the St. Lawrence circuit in September, 1847, before Parker, justice. On the trial, a paper title to the premises in question was shown to be in Philip Kearney, when he, on the 1st of May, 1814, conveyed the same by deed in fee to Margaret Kearney and Susan R. Kearney.

<p>In Equity. This was an appeal from a decree of the late assistant vice chancellor of the first circuit. The bill was an ordinary judgment creditor’s bill, on a judgment recovered by the plaintiff against the defendants Tisdall &, Hickman, in July 1843, for $422,42. It alleged that the defendants Tisdall & Hickman were copartners, as coal dealers, from 1839 until 1843, when the copartnership was dissolved by mutual consent. That previous to such dissolution, and on or about the 13th of April, 1843, Tisdall & Hickman jointly, as copartners, sold and assigned their stock in trade to the defendant Bailey, for the consideration of $1100. That Bailey gave in payment his four promissory notes of $275 each, bearing the same dates, payable to the order of Tisdall & Hickman ; two of them being payable in 30 days from the date, and two in 60 days from date. The bill charged, on information and belief, that Hickman, after the delivery of the notes, but before they became due, and without payment of the amount thereof, fraudulently re-delivered said notes, or some one of them, to Bailey, who now pretends that he has paid the said notes, and by collusion with Hickman attempts to defraud the plaintiff and other creditors of Tisdall & Hickman. That Bailey’s indebtedness to Tisdall <fc Hickman, thus contracted, still continues to some extent, sufficient at least to pay the plaintiff; and a discovery was prayed for. The plaintiff insisted that Hickman had no right, in law or equity, to appropriate the notes to the payment of</p> <p>his own debts. Hickman and Bailey put in answers to the bill, but Tisdall suffered the same to be taken as confessed against him. Hickman, by bis answer, admitted the recovery of the plaintiff’s judgment, and the issuing and return of an execution unsatisfied ; but stated that neither he nor Tisdall & Hickman had, at the time of filing the plaintiff’s bill, property to the amount of $100, exclusive of prior just claims. That the bill was filed by collusion with Tisdall. The answer also admitted the execution of an assignment by Tisdall & Hickman to Campbell & Paine, on the 18th of April, 1843, of certain property and debts of the firm specified in the assignment ; and a dissolution of the partnership on the 17th or 18th of April, 1843; and that the sale to Bailey was made on the 13th of April. That on the said 13th of April, Bailey made and delivered to Hickman & Tisdall the four notes, two at 60 and two at 90 days. That on the same day the defendant and Tisdall agreed to divide the same, and Hickman took one note at 60 and one at 90 days for his share. That the defendant could not recollect the items of property sold to Bailey, but he believed the sale was made in good faith by Tisdall, as it was by the defendant Hickman. That on a settlement with Bailey on the 14th of April, the defendant delivered up to him two of the said promissory notes, being the two notes that belonged to Hickman, under the division made as aforesaid between him and Tisdall. That on that settlement, Hickman was indebted to Bailey upon a promissory note made by the former, and dated in February, 1841, for $183,87, with interest, for borrowed money; and that the fian of Tisdall & Hickman, and Hickman individually, were perfectly solvent at that time. That Hickman was also, at the time of that settlement, indebted to Bailey in the sum of $113,51 for money paid for Hickman in England; and that Bailey paid the balance of the two notes so delivered to him, $224,15, in cash. And Hickman denied all knowledge as to what had become of the other two notes given by Bailey. In his separate answer, Bailey alleged that on the 15th of July, 1843, when all the notes given by him on the purchase of the property of the partnership were due, Tisdall &■ Hickman owed him $435,97, and claimed the right to offset that sum, at least, from the amount of the two notes taken up from Hickman. He also stated that he had paid Tisdall’s 90 days’ note, but had refused to pay the 60 days’ note; believing he was bound to pay only a part of the sum due thereon. That he was sued thereon in the name of Michael Tisdall, and paid into court the sum of $125,87, and the balance thereof is still due and unpaid, and the defendant has since been advised that he has no legal defence to the claim for the balance.</p> <p>The cause was heard before the assistant vice chancellor, on pleadings and proofs. The facts, as they appeared in evidence, sufficiently appear from the opinion of the court. The assistant vice chancellor made a decree in favor of the defendant Bailey, dismissing the bill, as to him, with costs; and also in favor of the defendant Hickman, of a like character, crediting the costs on the judgment if the plaintiff should see fit; otherwise the costs to be paid by him, and in favor of the plaintiff against the defendant Tisdall, with costs on the bill taken as confessed.</p>

<p>Oysters planted by an individual in a bed clearly designated and marked out in navigable waters, which are free for all the inhabitants of the state, are the property of the person planting them; and he may maintain trespass against another for removing them.</p> <p>If oysters have previously existed in their native state, on a particular ground, a person cannot deprive the public of the right to take them, by depositing others in the same place. But if none were there before, the privilege will be considered as having been created by such person, and as having never belonged to the public.</p> <p>And other persons cannot impair the title of the first occupant, to the oysters, by depositing others in the same place, knowing that such occupant had, at the time, similar property there, and with an intent so to mingle the two kinds together, that neither could be identified.</p>

<p>The name given to an action, in the commencement of the declaration, is mere surplusage. The substance of the declaration controls the form of action.</p> <p>Where the consequences of an unlawful act are immediate, he who does the unlawful act is considered as the active doer of all that directly follows. He is the causa cansans. and a trespasser.</p> <p>Where a declaration charged that the defendant drove a wagon, on the highway, against a carriage in which the plaintiff was riding, by means of which she was thrown out and injured, and the defendant, in his plea, averred that just before the collision he drove his wagon on the right side of the centre of the road, so as to permit the carriage in which the plaintiff was riding to pass without interference, but that the plaintiff’s carriage was not kept, and seasonably turned, to the right of the centre of the road, and thereby they came in contact With each other, by the negligent and unlawful manner in which the plaintiff’s carriage was driven; which caused the damage; Held, that although there was no positive averment that the plaintiff was carelessly driving on the wrong side of the road, and thereby caused the accident, yet that the plea substantially averred, (although very informally,) that the defendant was on the right side, and the plaintiff on the wrong side, of the highway; and that it was certain to a common intent, which is ordinarily sufficient, in a plea in bar.</p> <p>Where the replication to such plea stated that the travelled part of the highway was fitly feet wide; that the plaintiff was proceeding easterly at the rate of a mile in twelve minutes, and the defendant westerly at the rate of a mile in four minutes; that the plaintiff’s wagon was within one foot of the north (to her, left) side of the travelled part of the highway; that there was a space of the travelled road fifteen feet wide between the plaintiff’s wagon and the centre, over which the defendant might have passed, without interference or interruption; and that the defendant, just before the wagons came in contact, drove his wagon across such last mentioned space, and unnecessarily ran against the plaintiff’s carriage, and that the collision happened without any carelessness bn the part of the plaintiff, or on the part of her driver; Held that the replication was defective in not setting forth some fact to show that the plaintiff, or her driver, was not careless in being on the wrong side of the highway, or averring that the defendant intentionally and unnecessarily inflicted the injury.</p>

In Equity. This was an appeal by E. W. Miller, from a decree of the former assistant vice chancellor of the first circuit. The case, before the assistant vice chancellor, is reported in 1 Sand ford’s Chancery Reports, 103. The facts appearing, from the pleadings and testimony, and the points raised and decided in the court below, are there fully stated ; except that the trust deed executed by Hannah Ryerson to Campbell, previous to her marriage, is not particularly set forth.

The action was assumpsit. Before issue was joined, the parties entered into a stipulation, dated June 27th, 1840, in these words: “ The plaintiff may declare in this case on the common counts, for work and materials, money counts, and account stated—and the defendant plead the general issue, and notice of set-off.

<p>In Eq.uity. This was an appeal by the defendants, and a cross appeal by the plaintiff, from a decree of the late vice chancellor of the third circuit. The object of the bill was to procure the payment of a legacy by the defendants, which they hold, as executors and trustees, under the will of Matthew Van Benschoten. The bill set forth that the complainant was a daughter of Matthew Tan Benschoten Ackerman, of the county of Dutchess. That Matthew Tan Benschoten, great uncle of the father of the complainant, did, on the 26th day of August, 1818, make his last will and testament, by which the testator, after reciting in said will that he was possessed of personal estate, consisting of debts due on notes, bonds, judgments and mortgages, and that it was his intent that the moneys due to him should remain at interest as long as the same should be deemed secure, and the interest met, did, among other things, direct and provide as follows, as to all notes, bonds, mortgages gnd judgments, which he might hold or be interested in at the jtime of his decease, he did give, devise and bequeath the same unto his executors thereinafter named, upon trust, to pay there-out to the several persons thereinafter named as legatees, the respective sums therein specified, and among others to the said Matthew Tan Benschoten Ackerman, the father of the complainant and nephew of said testator, the sum of $14,000, and that interest should be paid by his said executors to the several legatees or cestuis que trust upon their respective legacies, or upon the respective sums therein directed to be paid to them, on the first day of May in every year, or as soon thereafter as such executors should have received sufficient for that purpose; but invested his said executors with a full discretion as to the outstanding debts, to let them remain or otherwise, in the performance of his views and intent as in said will expressed; and when and as often as they might have moneys in hand, more than sufficient to pay the legacies or sums directed to be paid by them, they might pay the same from time to time to such of the legatees as they should think proper, and that said testator did thereby appoint James Emott and John T. Schry•yer, to be executors of his last will and testament. That three codicils to said will were duly made and executed. The first on the 22d day of October, 1819, the second on the 18th day of October, 1820, and the third on the 4th day of December, 1823. That said testator, by his third codicil, revoked the legacy of $14,000 to his said nephew, Matthew Van Benschoten Ackerman, and in the place thereof, gave and bequeathed $3500 to each of the four daughters then living, of his said nephew, Matthew Van Benschoten Ackerman, to be paid to them severally as they should arrive at age or on their marriage ; and in the meantime the interest thereon to be paid at the discretion of said executors, for their maintenance and education; and that the testator in and by said third codicil, did in all things other than those in said codicil specified, confirm and ratify the provisions of his said last will and testament, and declared his intention to extend the same to all property by him held at the time of executing said third codicil, and that the legacies in and by said codicil given, were to be in all respects subject to the provisions and instructions of his said last will and testaments. That James Emott and John T. Schryver, as executors, caused said will and codicils to be duly proved and recorded in the office of the Surrogate of the county of Dutchess, and that on the ninth day of February, 1825, letters testamentary were duly issued to said -executors. That the complainant was one of the four daughters of Matthew Van Benschoten Ackerman, mentioned in the third codicil to said will: that the defendants, as executors and trustees, about the 9th day of February, 1825, took possession of the personal estate of the testator, in value upwards of $125,000, and subsequently realized therefrom more than sufficient to pay all the debts and specific legacies of said testator; that said executors, after paying all the debts and providing for the payment of the specific legacies, set apart $3,500 to hold in trust for the complainant according to the provisions of said will, until she should arrive at age; that the complainant arrived at the age of twenty one years on the 3d day of September, 1842, and had received only a small proportion of the interest of her legacy: that after arriving at age the complainant demanded of the defendants the payment of said $3500 and interest, according to the provisions of said will; that the defendants refused to pay the same, and instead thereof tendered to complainant, in full satisfaction for her claim under said will and codicil, the one half of four hundred and seventy-five shares of the stock of the Dutchess county bank, of the par value of $11,875, and the one half of a bond and mortgage for about $1800; that said stock was not worth more than forty per cent. The bill charged that the complainant was not bound, and ought not to be compelled, to receive said stock and bond and mortgage in satisfaction, in whole or in part, of her said claim, and to submit to the loss which she would thereby sustain. That the executors pretended that at the time of making the investment, they purchased a large portion of said stock from Walter Cunningham, who was cashier of said Bank, but that in reality it belonged to said executors or one of them, and that other portions of said stock were purchased, by said executors, of James Emott himself. That at the time of said investments the bank was in doubtful and precarious circumstances, and that this was known to the defendants; that James Emott was president and John T. Schryver also an officer of said bank; that said investments were made fraudulently and for their own benefit, or that of other persons with a disregard for the interest of the complainant; that said stock, when tendered by the defendants to the complainant, was worth only a very small part of her claim; that there was justly due to the complainant more than $8000, which the executors and trustees refused to pay in any other way than by said bank stock and said bond and mortgage. The bill prayed for an answer on oath, and that the defendants might be decreed to pay the complainant her legacy of $3,500 with interest, and for general relief.</p> <p>The joint and several answer of the defendants admitted the due execution, probate, and recording of the will and codicils of the testator, and that he died about the year 1825 ; that letters testamentary were duly issued to the defendants as executors; and that the complainant was- one of the four daughters of Matthew Y. B. Ackerman, mentioned in the last codicil to the will. And it stated that about the 10th day of February, 1825, the defendants caused an inventory of the personal estate of the testator to be made, amounting in the whole to $125,463,29, of which sum $124,235,29 consisted of debts due the estate, which debts, with a small part of the other personal property, came to the hands of the defendants; the most of the other personal property being bequeathed to, and taken by, others. The defendants admitted that they realized opt of the personal property coming to their hands more than sufficient to pay all the debts of the said testator and all the specific legacies mentioned in the will and codicils, with interest; and stated that the defendant Emott took charge of the debts due the testator as set forth in the inventory, and took upon himself the payment of the legacies; and that the defendant Schryver took no part in the settlement of the estate, other than to occasionally advise. That the defendant Emott, between the 24th day of April, 1825, and the 19th day of August, 1831, collected and paid over all the specific legacies and the interest thereon, (except the legacy to the four daughters of Matthew V. B. Ackerman,) amounting to about $90,412,44. That about the 1st day of January, 1834, the defendant Emott made an investment of about $13,200 in 400 shares of the stock of the Dutchess County Bank, which was taken in the names of the defendants as trustees for said four children; and that about the same time the defendant Emott stated an account for the four daughters for their legacy, adding interest up to that time, and deducting advances for them and the 400 shares of bank stock, leaving a balance in favor of the four children of $8,381,75; and that from that time, to and including the year 1842, he continued to make distribution among the residuary legatees, until the whole sum paid by him, (exclusive of said legacies to the four daughters,) amounted to $146,052,20. That in June, 1836, Emott made a further investment in the names of the defendants, as trustees for said four children, of $4250, for 160 shares of the new stock of said bank, leaving a balance due for dividends, on the first day of January, 1837, of $1730 uninvested. That in (the fall of 1836 Helen Maria, one of said four daughters, having died, the defendant Emott settled with her administrator in February, 1837, for her legacy, which he did by deducting advances, and transferring 4 of the 400 and of 560 shares of stock, and paying in cash $2504,33, leaving for the surviving sisters | of the 160 shares of stock, and $7512,67, the bal-anee of dividends undistributed ; that the defendant Emott then made two other investments in the names of the defeat dants, as trustees of the three surviving children, of $7600 for 250 shares of said slock. That in October, 1838, the defendant Emott, in the names of the defendants as trustees, leaned on bond and mortgage to James H. Mills, $1800, and on the 29th day of October, 1840, there remained uninvested, of dividends and interest, after deducting advances for the children, about $2073,06. That in the year 1840, Sarah Ann, one of the three daughters, being married, the defendant Emott settled with her marriage trustees, by paying cash $1312,02, £ of the 613 shares of stock, and took an assignment of | of the Mills bond and mortgage in behalf of the two remaining daughters, Phebe and Caroline, so that on the 1st day of May, 1841, there remained in trust for the two daughters 475 shares of said stock, of cash uninvested $761,04 the Mills bond and mortgage for $1800, and that said Emott had since received,-, as interest on said bond and mortgage, $252. That the first investment in said bank stock (that of the 400 shares about the 1st of January, 1834,) was made by a transfer of the' same by Walter Cunningham to the defendants as trustees of said four children, for the sum of $13,200, being $33 a share, and 32 per cent above par. That the defendant Emott had an interest in the stock so transferred by said Cunningham, and that the 293 shares of said stock, in which said investment was made in Feb.-1837, was owned by said Emott and by him transferred to the' defendants as trustees for the sum of $8990, (being about $30 per share and 25 per cent above par.) That the investment's were made in good faith, without any particular view to promote his own interest, and for no other motive than for the’settlement of the estate and to satisfy the persons interested therein, &c. and that at the time thereof the bank was in good standing and the stock much sought after. And the defendants denied that at the time of the last investment, or at any time previous, the bank was in doubtful circumstances or largely the creditor of individuals of suspected insolvency, or that large quantities were in the market, except new stock. And they stated that they did not believe that the stock ever sold at or below the par value, prior to 1st January, 1837; and that it’sold for a premium until a considerable time after the last investment made by them as trustees. But they admitted that the stock is and was at the time of the tender to the complainant worth less than the par value, from suspension of specie payments and general derangement of the business of the country. That at the time of making the several investments, Walter Cunningham was cashier, a director and a large stockholder in said bank; that the defendants were both directors, and the defendant Emott the president of said bank; that they do not know to what amount W. Cunningham was indebted to the bank at the time the investments were made, But they admitted that they knew the general condition of the bank. They denied, however, that there was any fraud, or bad faith; or that they supposed or knew that the investments were hazardous or uncertain; or that they made the investments to benefit any other persons than the legatees. That Emott, from a knowledge of the affairs believed it was safe, and that he, at the time, and long after, was a large stockholder in said bank, and having concluded “ to make the investment he had recourse to his own stock, or stock in which he was interested, not deeming it necessary to go into market, and knowing that he could reinvest for himself as he in fact did for an amount beyond such investment, and at or about the same prices.” That Emott has at all times expressed a readiness and willingness to transfer to the complainant one-half of said 475 shares of stock at the price which it cost, and one-half of the Mills bond and mortgage, and to pay her any balance which remained due on her legacy in money ; that the defendants were still ready to make such payment and transfer, and they submitted that the complainant ought to be decreed to receive the same in full satisfaction of her claim.</p> <p>The facts appearing in evidence in the cause, are sufficiently stated in the opinion of the court. The vice chancellor made a decree directing a reference to a master to compute the amount due to the plaintiff on account of the legacy, at simple interest, after deducting the advances made by the defendants; and that the defendants pay the amount so reported due, with costs to be taxed.</p> <p>The following opinion was delivered by the vice chancellor:</p> <p>Parker, Y. C. I find no evidence to warrant the belief that the defendants acted in bad faith toward the complainant, in investing her property in the stock of the Dutchess County Bank; and the principal question I shall examine, in deciding this case, is whether the investment thus made isof such a character as will subject the defendants to a personal liability for the loss. Upon this point there has been no express adjudication in the equity courts of this state, though I think the principle that should govern it is now well settled in England, and in some of our sister states.</p> <p>It is contended by the defendants’ counsel, that trustees are not responsible in regard to the preservation and care of the trust property, if they keep it as they keep their own, and that they can only be liable when they fail to exercise reasonable care and diligence. Some of the earlier decisions, doubtless, go that length, and as to many of the duties devolving upon trustees, I am satisfied this is now the law. But so indefinite and general a rule would never be sufficient to protect an infant against an unsafe investment; and on a careful examination of the authorities, I am convinced that the law regulating the investment of property by trustees is more fixed and certain. Some more definite rule is required, as well for the guidance and safety of the trustee, as for the protection of the cestui que trust.</p> <p>In the recent case of Clough v. Bond, (3 Mylne Sf Craig, 490, 496,) Lord Cottenham says—“It will be found to be the result of all the best authorities upon thie subject, that although a personal representative, acting stXctly within the line of his duty, and exercising reasonable care and diligence, will not be responsible for the_ failure or depreciation of the fund in which any partTof the estate may be invested, or for the insolvency or misconduct of any person who may have possessed it; yet if that line of duty be not strictly pursued, and any part of the property be invested by such personal representative in funds or securities not authorized, or be put within the control of persons who ought not to be entrusted with it, and a loss be thereby eventually sustained, such personal representative will be liable to make it good, however unexpected the result—however little likely to arise from the course adopted, and however free such course may have been from any improper motive.” Let us examine whether this is the law, and whether the stocks purchased by the defendants were an authorized security.</p> <p>In Trafford v. Buchin, (3 Atkyns, 444,) as early as in 1746, Lord Hardwick decided that investing the trust funds in South Sea stock would not protect the trustee against personal liability for the loss; and the lord chancellor remarked that, “neither South Sea stock nor bank stock is considered a good security, because it depends on the management of the governors and directors, and is subject to losses.” And in the same case he held that an investment “ in South Sea or bank annuities, where the directors have nothing to do with the principal, and were only to pay the dividends and interest, until such time as the government pay off the capital, would be a good security.” In Hancom v. Allen, (2 Dickens, 498,) it was held in 1774, that if a trustee lay out trust money in a fund which the court does not adopt, and such fund afterward sinks in value, the court, though there were no malafid.es, will throw the loss upon the trustee. Otherwise, if laid out in the fund which the court adopts. So too, in Peat v. Crane, (2 Dickens, 498, note.) Lord Thurlow directed an allowance to be made to a trustee for the depreciation of 3 per cent, consolidated annuities, in which he had invested trust money, on the» express ground that it was a fund adopted by the court. In Adye v. Feuilleteau, (1 Cox, 24, reported also in 3 Swanston, 84,) decided in 1783, Lord Loughborough held that when an executor lends money of his testator upon bond, he shall be personally answerable if the security prove defective, though the testator was in the habit of lending money on such security. In that case it was urged by Hardinge, of counsel for the defendant, as is contended here, that the executor was not liable for losses if he did with the testator’s property as a prudent man would have done with his own—that nothing short of crassa negligentia could make him personally liable. He cited Harden v. Parsons, (1 Eden’s Cases, 145.) But Lord Commissioner Hotham, sitting with Lord Loughborough, added, “the court will always discourage lending trust money on private security, though large interest may be given. It becomes a species of gambling.” The case of Harden v. Parsons was overruled by Lord Eldon, in Walker v. Symonds, (3 Swanston’s Rep. 62,) and has never been relied on since as authority. ’ *</p> <p>The case of Holmes v. Dring, (2 Cox, 1,) was decided in 1787. The executors had loaned the trust money of an infant on a bond with security. The obligors were in “ample circumstances ” when the money was lent, but afterward became insolvent. The master of the rolls said that “ it was never heard that a trustee could lend an infant’s money on private security,” and directed the executors to pay the money, and interest and costs. In Wilkes v. Steward, (Cooper’s Ch. Rep. 6,) decided in 1801, the executors were empowered to lay out the legacy in the funds, “or in such other good security as they could procure and think safe.” Yet with even this implied discretion it was held that they could not lend it on personal security. The case of Powell v. Evans, decided also in 1801, (5 Vesey, 838,) goes still farther. It was there held that executors who neglected to call in money, lent by the testator on a bond, should be charged with the loss that might be sustained by the subsequent failure of the obligors. This doctrine has not, perhaps, been carried to this extent in this state. The case of Brown v. Thompson, (4 John. Ch. Rep. 619,) may be regarded as somewhat modifying it, but I cite it to show how strictly the English courts have intended to guard the rights of infant cestuis que trust. If the rule has not been so rigidly enforced here, as to collecting money already invested by the testator, I think it has been equally strict with the English courts, in insisting upon proper investments, when made by the trustee.</p> <p>It may now be regarded as the well settled rule of the English court of chancery, that the trustee can only protect himself against risk by investing the trust fund in real or government securities. He must either take security on real estate, or invest in a fund approved by the court; and no other fund is there approved by the court., except the public funds. The decisions subsequent to those I have reviewed hold the same doctrine, and make any investment on private or personal security at the risk of the trustee. (Vi grass v. Binfield, 3 Mad. 40. Walker v. Symonds, 3 Swans. 1. Howe v. Earl of Dartmouth, 7Ves. 150. Hollands. Hughes, 16 Id. 111. Tcbbs v. Carpenter, 1 Madd. 290.) In the case of Clough v. Bond, which was decided as late as 1838, this doctrine is recognized in express terms by Lord Chancellor Cottenham.</p> <p>But it is urged by the defendants’ counsel that a different rule prevails in this state, and Thomson v. Brown, (4 John. Ch. Rep. 619,) is relied on to show that when executors or trustees act in good faith, they will not be responsible for loss. An examination of that case, however, shows that it xvas not a case of investment made by the administrators. They only permitted the business to be carried on as they found it. Chancellor Kent there says, “this was not a nexv and distinct original trading with the assets, voluntarily entered into by the administrators. They found a store of goods in possession of a surviving partner, and they had no other alternative but either to suffer him to go on and sell on the usual terms, and under a continuation of the confidence reposed in him by the intestate, or to divide the goods and sell the share of B. at auction.” Under these circumstances, it appearing, that the administrators acted in good faith, they were not held liable to the loss. This case no more conflicts xvith the English rules regulating the investments of trust moneys by trustees, than do the later English cases of France v. Wood (1 Tandyn, 172,) and Dorchester v. Effingham, (1 Id. 279,) to which it is analogous. In Brown, adm’r, v. Campbell, ex’r, (Hopkins, 233,) notes given by the Union Cotton Manufactory to Richard F. Cooper were, by his executor, invested in stock of the Otsego Cotton Manufactory, which afterward became insolvent. This case seems to have been but little considered by either the counsel or the court, and is imperfectly stated by the reporter; and I cannot concede that it establishes any new rule on this subject. Indeed, it would appear, from the express language of the chancellor, that it was not so designed; for he says he makes the decision “ without meaning that a trustee may invest the funds of his trust in stock of this kind.” In the case of Smith v. Smith, (4 John. Ch. Rep. 281,) Chancellor Kent says, “I have no doubt that it is a wise and excellent general rule that a trustee loaning money must require adequate real security, or resort to the public funds,” though, he adds, he is not prepared to say whether there are any, and, if so, what, exceptions to this rule.</p> <p>I think it appears from the case of Kirby v. King, (3 John. Ch. Rep. 552,) that the court of chancery, in this state, has not intended to guard the property of cestuis que trust less sedulously than the English courts.</p> <p>In New Jersey the English rule has been fully adopted. In the case of Gray v. Fox, Chancellor Vroom examines carefully the history of the law in question, and claims that it is fully established in England, and in this country. It is also recognized in 2 Story’s Eq. Juris. 638, 641, and 2 Kent’s Com. oth ed. 41.6, note.</p> <p>On the whole I cannot doubt but the English rule is adopted here, and that a trustee cannot be protected against a loss in investing trust funds, unless he loans on real security, or invests in some fund approved by the court. Such a rule is easily defined and readily understood, and I repeat, it is as necessary to the safety of the trustee, as to the protection of the cestuis que trust.</p> <p>There is no reason operating against it here that does not exist in England. Investments can be readily made in either of the securities required, and the court approves of a deposit in the N. Y. Life Insurance and Trust Company, until a safe investment can be made on bond and mortgage. The principal of the cestui que trust ought not to be put in hazard. As well might the trustee invest in a commercial adventure, or in a brokerage partnership, as in bank stock. In either case the principal is hazarded, with a view to make a greater gain than the legal interest. Nor should this be left to the wide and varying discretion of the trustee. It should be regulated by some fixed and settled rule, and I know of none more salutary, that could be adopted, than that I have shown to be established. I think too, that the investment made by the defendants was not such as appears from the will to have been intended by the testator. Interest, not dividends, was directed to be paid annually. A mere loan was contemplated, not a carrying on of the business of banking. Most of the property of the testator was also in bonds and mortgages. The amount of bank stock was trifling in comparison. The intention of the testator should have been observed. (Hoxie v. ELoxie, 7 Paige, 187.)</p> <p>If the view I have taken of the law is correct, it is decisive of this case, and it will not be necessary to examine the question whether the defendant Emott, individually, could transfer the stock to himself and Schryver as trustees, so as to bind their cestuis que trust.</p> <p>The decree must therefore direct a reference to a master to compute the amount due complainant on the legacy, at simple interest, deducting the advances made by the defendants, and that on the coming in and confirmation of the master’s report, the complainant have execution for the amount so reported due, with costs of suit to be taxed. Cajfrey v. Darby, (6 Ves. 488,) is in point as to costs.”</p> <p>The defendants appealed from the whole of the decree of the vice chancellor; and the plaintiff appealed from that part thereof which directed that the interest to be computed on the legacy should be simple interest at seven per cent; and from all such. parts as limited the right of the plaintiff to the recovery of simple interest only.</p>

<p>In Equity. This was an appeal by the plaintiff from a decree of the former assistant vice chancellor of the first circuit. The bill was filed by the assignee of a lease of premises at the corner of Broome and Mercer-streets, in the city of New-York, against the assignee of the lessor, to compel the defendant to pay the plaintiff the value of a brick building erected upon the premises by the plaintiff during the continuance of the lease. The facts will be found detailed in the opinion of the court. The cause was heard before the assistant vice chancellor upon pleadings and proofs, who made a decree directing the plaintiff’s bill to be dismissed with costs.</p>